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
In reality this will probably involve looking at creative
options to provide for delivery. Several LA’s are using video conferencing for
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)
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
- 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
- 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
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.
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 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 www.snapcymru.org/contact