Archive for “April, 2020”

Coronavirus and Additional Learning Needs – update

The Coronavirus Bill, has now been passed and is now Legislation under the Coronavirus Act 2020. You can find the whole act here

Currently all local authorities remain under obligation to comply with the law and regulations regarding Special Educational needs. There is no immediate change to the duties on local authorities

The Coronavirus Act 2020 does however provide for the possibility of a temporary relaxation of duties on local authorities.  The relevant part for our purposes is Schedule 17, part 1, “Notices temporarily removing or relaxing statutory provisions”.

Under the Coronavirus Act 2020, the Secretary of State/Welsh Minister has the power to modify this requirement so instead rather than an absolute duty, Local Authorities are able to use ‘reasonable endeavours’ to deliver the provision.

In order for any of these situations to come into force, Schedule 17 of the Act has created a power for the Secretary of State/Welsh Minister to issue a notice dis-applying or modifying the existing statutory provisions for up to one month at a time, but there can be repeated notices.

Hayley Mason, SEND Lawyer at SEN Legal says that

When issuing such notice, the Secretary of State/Welsh Minister must take reasonable steps to bring the notice to the attention of those likely to be affected. (The reasons must relate to the incidence or transmission of coronavirus.)

Even when a Notice is issued, this does not mean that local authorities can simply do nothing.  What it means is that the duties are to be treated as discharged if the LA has used ‘reasonable endeavours’ to discharge the duty.

Exactly what ‘reasonable endeavours’ will amount to in this context is as yet unclear as it has not been defined in the recent legislation and no guidance has been issued to local authorities.

In reality this will probably involve looking at creative options to provide for delivery. Several LA’s are using video conferencing for example

No notice has been issues currently so the duties on local authorities remain the same.

The modifications if announced will apply to the following:

  • Education Act 1996 Section 324 (statement of special educational needs)

Any duty imposed on a person by section 324(5)(a) or (b) is to be treated as discharged if the person has used reasonable endeavours to discharge the duty.

  • Learning and Skills Act 2000 (Statement of special educational needs)

Any duty imposed on a person by section 324(5)(a) or (b) is to be treated as   discharged if the person has used reasonable endeavours to discharge the duty.

  • Section 140 (duty on the Welsh Ministers to arrange an assessment of a person with SEN in particular circumstances)

Any duty imposed on a person by section 140 is to be treated as discharged if the person has used reasonable endeavours to discharge the duty.

  • Education Act 1996 Section 19 (exceptional provision of education in pupil referral units or elsewhere)

Any duty imposed on a person by or under section 19 is to be treated as discharged if the person has used reasonable endeavours to discharge the duty

  • Education Act 1996 Section 328 (review of educational needs)

Any duty imposed on a person by or under section 328 is to be treated as discharged if the person has used reasonable endeavours to discharge the duty.

Do the LA still need to carry out statutory assessments?

All current duties apply, the local authority are still required to comply and must still accept request for statutory assessments and continue those which are in process

Understandably everybody is in a difficult position at the moment. Many people are having to work from home for the first time, looking after children and trying to make it work and that includes LA officers who may not have access to their databases in the same way as us. 

The government may be seeking to amend regulations on the timescales for the statutory processes where this is appropriate because of COVID-19 as yet, no order has been passed to this effect. 

Several LAs who have indicated that they will not be carrying out any statutory assessments. Legally, this is not an option nor has the government indicated any intention to suspend the duty to consider requests for assessment or to carry out the same. Any LA’s suspending the process are not acting lawfully.

On a practical basis, a LA’s ability to comply with deadlines may be hampered by staff absence and the way assessments are conducted may be affected by the availability of staff and restrictions on face to face contact and working from home.  However, LAs have wide powers in the way they obtain information and advice.

Decisions about whether or not to assess will continue to be made solely on current legal tests.  If a LA refuses to assess, then it must continue to send out the statutory notification (along with notice of appeal rights and deadlines) to the parents or young person.

If a school is being named in a statement, that process may continue despite the school being currently closed.

Annual Reviews

Time limits have not been extended yet.  However annual review deadlines are likely to be one area which may be relaxed – in practice deadlines will slip slightly and we will all need to be pragmatic and sensitive to the prevailing situation.  If AR do not take place the existing provision will remain in place.

What is happening to SENTW Appeals?

Appeals in respect of refusals to assess, refusals to issue, and against the content of issued Statements can also still be lodged with the First-tier Tribunal SENTW.  The FTT is preparing to put measures in place to attempt business as usual. It is holding case management hearings and appeals by telephone and video link. 

What are children and young people with SEN’s entitlements when schools are closed?

All schools have been ordered to effectively close, retaining a skeleton staff to provide education for the children of ‘key workers, and ‘vulnerable children’.

Vulnerable children include those who have a social worker, who are ‘looked after,’ require safeguarding and those with a statements of special educational need. The children with SEN, who receive SEN Support at school but do not have a statement, would be expected to stay home unless they have a social worker or a parent or carer who is a key worker. In certain local authorities unless both parents are keyworkers the children would be expected to stay at home. Many areas are looking at having cluster hubs where children will be brought together- the advice on this is emerging.

The Government has released further guidance for schools, colleges and local authorities setting out their approach to maintaining educational provision. This includes a full list of key workers.

If my child has a statement, does the LA still have a legal duty to provide what’s in the statement?

From a legal perspective this is the case However, given the likely significant disruption and staff sickness , it may be very difficult for schools or LAs to deliver the exact provision,

 An alternative may be to question whether some of the provision can be delivered at home?  Certain therapists for example have provided support through video link.

If you are concerned about your child who may be vulnerable regarding safeguarding, mental health or because of concerns regarding their violent behaviour please contact your social worker if you have one or your local authority duty social work team. 

For further information please contact the SNAP Cymru Helpline or use the enquiry form on our website which both remain open

0808 801 0608