Changes to SEND Legislation and Guidance
Annual-reviews-guidance-v4[28124] EHC needs assessment guidance v8[28127]
Specialist Teacher Coronavirus Response v3[28125] What has changed about Section 42 – 04.05.20[28126]
Sent on behalf of Joanna Cassey, Service Director for Education
Dear colleagues,
You may be aware that as of last Friday 1st May, regulations came into force enacting parts of the Coronavirus Act 2020 in relation to SEN related issues, including EHCPs. The link to the regulations and the helpful government guidance can be found below.
http://www.legislation.gov.uk/uksi/2020/471/contents/made
We have also amended our Buckinghamshire guidance following these changes; these are attached and are in relation to EHC Needs Assessments, Annual Reviews and the Provision within EHC Plans.
As a general summary, the changes fall into two main parts:
1. Those relating to the s42 duty to make the provisions identified and set out in an EHCP
2. Timescales
It is also important to note which parts of the Coronavirus Act 2020 have not been enacted by the regulations; the Secretary of State has not enacted all the provisions in the Coronavirus Act 2020 in relation to SEN.
The overarching message is that we should all be continuing ‘business as usual’ unless prevented from doing so by the challenges raised by the COVID-19 crisis.
1. In terms of s42, the absolute duty to deliver the provisions identified is modified by the regulations. ‘Reasonable endeavours’ must be used to deliver as much of the identified provision within EHC Plans as possible. The modification of the s42 duty does mean that the provision set out in an EHCP does not have to be delivered, but rather that consideration is given in relation to each child as to what it is reasonably possible to deliver. This should take into consideration the local circumstances arising from the restrictions imposed by COVID-19 and the needs and views of the child/young person. Importantly, where unable to fulfil s42 duties, decision making should be recorded and the young person and/or parents should be kept fully informed.
2. In terms of timescales, the guidance is clear that these remain unaltered unless it is not possible for them to be adhered to because of the restrictions imposed by COVID-19. Where timescales cannot be adhered to, the required actions should be carried out as soon as ‘reasonably practicable’. The timescales include those in relation to:
· Issuing EHCPs
· Reassessments
· Annual Reviews
· Handling of requests for assessments for EHCPs
· Mediation processes
· Changes to EHCPs
· Review of personal budgets for first time
· Actions LA must take further to non-binding decisions by first tier tribunals
It should be noted that the modifications set out in the regulations only apply to the timescales and that duties to undertake these actions remain unchanged. If they cannot be completed within the statutory timescale because of reasons relating to COVID-19, they must be done so as soon as is “reasonably practical”. No blanket policy to either amendment to the legislation can be applied; each child must be considered on an individual basis, and ‘reasonable endeavours’ employed to prevent an exceptional circumstance being applied.
The guidance also helpfully sets out the matters which are not affected by the regulations and the parts of the Coronavirus Act 2020 which the Secretary of State has not yet enacted. These include:
· Parents/young people must respond to draft EHCPs with their comments within 15 days.
· The final EHCP must include all the relevant information and advice.
· Annual Review must still take place.
· Schools must admit students, i.e. can be named on an EHC Plan and taken onto the school roll, even where a school is temporarily closed.
· School must still respond to proposal to name / consultations, if they have representations, within 15 days.
· The right of appeal to the LA.
· The right of appeal to the first-tier tribunal.
Whilst it might not be the usual circumstance for admitting students, if schools wish to make responses to consultations, they must still do this within 15 days and must use the paperwork provided as part of the consultation to assist them with this. Where a response is not given within 15 days, or the Local Authority considers this response not to apply to the legislative framework, schools can and must be named. This is highlighted clearly in the guidance so as not to place the child or young person at any disadvantage during the COVID-19 period.
We hope you will find the attached guidance useful; the information can also be found on both SchoolsWeb and the Local Offer for your future reference. Should you have any further questions, please do discuss with your EHC Coordinator.
Best wishes,
Joanna Cassey
Service Director for Education
Children’s Services Directorate
Buckinghamshire Council
01296 382081
joanna.cassey@buckinghamshire.gov.uk
Room G37, Council Offices, Walton Street, Aylesbury HP20 1UA
Buckinghamshire Association of School Governors