Coronavirus (COVID-19)

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COVID-19 SEND

Government Guidance

New DfE guidance on changes to the law on education, health and care needs assessments and plans due to coronavirus, updated 29th May

Updates include as to: cases in progress on 1 May 2020; annual reviews for those with EHC plans changing phase of education; actions following a tribunal ruling; and unchanged duties in relation to social care provision in plans. Also improvement to the format of the tables in Annex A and a minor change to footnote 1.

Legislation: The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020

Supporting vulnerable children and young people during the coronavirus (COVID-19) outbreak (Gov.uk)

Supporting children and young people with SEND as schools and colleges prepare for wider opening Guidance for special schools, specialist colleges, local authorities and any other settings managing children and young people with complex special educational needs and disability (SEND).

Government guidance on SEN Risk Assessing (Gov.uk)

Guidance for people receiving direct payments (Gov.uk)  - Advice for people who buy care and support through a direct payment, as well as local authorities, clinical commissioning groups and those who provide care and support.

Therapy and Complex Care

Update from the Children and Young People’s Therapy and Complex Care service teams Buckinghamshire Healthcare NHS Trust

The impact of the change in the legislation on EHC needs assessment and plans

We have amended our Buckinghamshire guidance following these changes in legislation.  These are linked below 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 not 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.

See also

Annual Reviews Guidance

EHC Needs Assessment Guidance

Specialist Teacher Coronavirus Response

Changes to Section 42

 

Do all children and young people with an EHC plan need to continue at school?

Schools, colleges, other training providers will need to consider the needs of all children and young people with an EHC plan, alongside the views of their parents, and make a risk assessment for each child or young person. They will need to consider a number of different risks to each individual, including:

  • the potential health risks to the individual from COVID-19, bearing in mind any underlying health conditions. This must be on an individual basis with advice from an appropriate health professional where required
  • the risk to the individual if some or all elements of their EHC plan cannot be delivered at all, and the risk if they cannot be delivered in the normal manner or in the usual setting
  • the ability of the individual’s parents or home to ensure their health and care needs can be met safely
  • the potential impact to the individual’s wellbeing of changes to routine or the way in which provision is delivered

We expect most children will fall into the following categories:

  • children and young people who would be at significant risk if their education, health and care provision and placement did not continue, namely those who could not safely be supported at home. This may include those with profound and multiple learning difficulties, and those receiving significant levels of personal care support. Local authorities will need to work with the individual’s educational setting – especially residential special schools and colleges – as well as local health partners, to ensure they are able to remain open wherever possible. This may mean deploying staff from other schools, to keep staffing ratios safe
  • children and young people whose needs can be met at home, namely those who are not receiving personal care from their educational setting, or whose limited need for personal care can be met in their family home. As part of the government’s emergency powers, they are modifying the statutory duties on local authorities to maintain the precise provision in EHC plans and will expect educational settings and local authorities to use their reasonable endeavours to support these children and their families

Government guidance states that, where a local authority is unable to put in place stated provision, they will need to use their reasonable endeavours to do this, but won’t be penalised for failing to meet the existing duty in the 2014 Act.

 

Do I need to complete a risk assessment for children whose parents have opted to keep their child at home during this time?

Yes, the risk assessment is for all pupils deemed vulnerable and must include both those in school and perhaps more importantly the ones at home.

 

Risk assessing SEND/vulnerable pupils

Buckinghamshire Council have developed the below risk assessment for completion for school attendance.  We hope this guidance supports you to determine the risks associated with pupils who are attending settings, but also those who can safely have their needs met at home.

Buckinghamshire Risk Assessment for vulnerable children and those with EHCPs

Buckinghamshire Council Risk Assessment Guidance

This guidance has been written in line with the Government guidance on SEN Risk Assessing, in that it takes the following into account:

  • The potential health risks to the individual from COVID-19, bearing in mind any underlying health conditions. This must be on an individual basis with advice from an appropriate health professional where required
  • The ability of the individual’s parents or home to ensure their health and care needs can be met safely
  • The potential impact to the individual’s wellbeing of changes to routine or the way in which provision is delivered.
  • The risk to individuals who have EHC Plans if some or all elements of their EHC plan cannot be delivered at all, and the risk if they cannot be delivered in the normal manner or in the usual setting
  • Any out of school or college risk or vulnerability, e.g. a young person becoming involved in dangerous behaviour or situations and requiring support from a social worker, including those where being in an educational setting can stop a care placement breakdown.

The iSEND Service would recommend that all risk assessments are conducted between the setting, the child/young person’s parents/carers and where appropriate key professionals, and should always be focused around the best interests of the child/young person, with the primary focus being on their safety at this time.  If you require further support with completing this assessment, please do contact your EHC Coordinator in the first instance, or the iSEND area team manager (details below).

The risk assessment is not fixed; it is inevitably impacted by any changes in circumstances, such as staffing or environment and so will require ongoing consideration.

The assessment form is in two parts.

  1. Section 1 – screening to determine if a full risk assessment is required
  2. Section 2 – full risk assessment

Please send a copy of the completed risk assessment form to the child/young person’s parents/carer and to your EHC Coordinator and Area Team Manager (contact details below):

Aylesbury Area Team Manager, Christine Preston: Christine.preston@buckinghamshire.gov.uk

Chiltern and South Bucks Manager, Hayley Nowley: Hayley.nowley@buckinghamshire.gov.uk

Wycombe Area Team Manager, Ian Peters: Ian.peters@buckinghamshire.gov.uk

 

Local Authority provision for children with EHC plans

Guidance states that, during this outbreak, educational settings, local authorities, health bodies, parents and young people with SEND should work together to respond pragmatically and flexibly to each individual’s needs.

The Government introduced new legislation (19 March) in response to the outbreak. As a result, local authorities have been informed that we will need to make reasonable endeavours to ensure that provision continues to be available to meet education, health and care needs and prioritise their efforts to support those with the most complex needs. The government has states that local authorities will need to work closely with educational settings – and in particular, special schools and colleges, and other specialist provision – to ensure sufficient provision is available across the local area. Local authorities and educational settings may need to redeploy staff (whether teachers, support staff or other critical workers) to ensure specialist schools and colleges have sufficient workforce to operate safely, and may need to do this across the usual boundaries of maintained, academy, college or other status to ensure the right staff are in the right settings.

Parents who consent to changes to, or reductions in, their child’s provision during this outbreak will not be considered to have agreed a permanent change to what their child needs in their EHC plan. The government is also considering amending SEND regulations to change timescales relating to EHC plan processes.

The Department for Education have stated that they will work closely with all local authorities to help us in this important role.

 

Children and young people with an EHC plan that are attending another educational setting

Government Guidance in Supporting vulnerable children and young people during the coronavirus (COVID-19) outbreak states:

It is important for any educational setting whose children and young people are attending another setting during this time to do whatever they reasonably can to provide the receiving institution with any relevant information.

As a minimum, this would include their EHC plan and essential health and care needs. This should ideally happen before a child or young person arrives or, where that is not possible as soon as reasonably practicable.

Consent to this disclosure should be sought from the child or young person, or where the child does not have sufficient age or understanding to allow him or her to consent, the child’s parent may give consent on the child’s behalf.

If it is not possible to obtain consent, the information should still be disclosed as the disclosure will be in the interests of the child or young person. It is important that teachers or other educational professionals working closely with the child or young person have full knowledge of the child or young person’s EHC plan.

Where a child or young person also has a social worker, additional safeguarding information would be required.

More detailed guidance can be found on safeguarding in schools, colleges and other providers.

Whilst educational settings must continue to have appropriate regard to data protection and General Data Protection Regulations they do not prevent the sharing of information for the purposes of keeping children safe.

Further advice about information sharing can be found in paragraphs 76 to 83 of keeping children safe in education.

SEN Annual Reviews

During the COVID-19 pandemic, the guidance from UK government regarding school closures and social distancing means that the annual review process will not be able to be conducted in the same way.  The main principle underpinning all of the annual reviews undertaken is to ensure that most accurate, reliable and comprehensive information is gathered and collated, given the constraints in place. 

The SEN team have produced local guidance, pending the publication of national guidance, meaning it is under frequent review.  Please see the SEN Annual Review pages of SchoolsWeb for more information.

 

Personal budgets and access to respite care for children and young people with an EHC plan

Government Guidance in Supporting vulnerable children and young people during the coronavirus (COVID-19) outbreak states:

For children and young people with an EHC plan, the duties relating to personal budgets remain in place. These are detailed in paragraphs 9:95 to 9:124 of the SEND code of practice.

A child’s parent, or a young person, has a right to request a personal budget when the local authority has completed an education health and care needs assessment and confirmed that it will prepare an EHC plan. They may also request a personal budget during a statutory review of an existing EHC plan.

Services for disabled children provided under section 17 of the Children Act 1989 typically include short breaks for parent carers. The local authority remains under a duty to provide these in appropriate circumstances. We recognise that this is likely to prove challenging during the coronavirus (COVID-19) outbreak, but ask local authorities to ensure every effort is made to continue to provide this kind of important support for families who need it wherever possible.

Where it is not possible for local authorities to arrange respite care for families as a result of circumstances related to coronavirus (COVID-19), we would encourage parents, carers and young people to discuss this with their local authority and agree what alternative arrangements can be made. This could include, for example, local authorities considering whether making a personal budget available on a temporary basis may enable the family to secure alternative respite care arrangements.

My child is still waiting for an EHC plan to be agreed and/or I am going to a tribunal to secure an EHC plan for my child. Will they qualify as a vulnerable child and be able to go to their educational setting?

Government Guidance in Supporting vulnerable children and young people during the coronavirus (COVID-19) outbreak states:

If the local authority has not yet issued an EHC plan for your child, then they will not automatically fall within the definition of ‘vulnerable children’ for the purposes of attendance at an educational setting during the coronavirus (COVID-19) outbreak. However, their educational setting and local authority have discretion to undertake a risk assessment and offer support if required.

If your child has an EHC plan the local authority remains responsible for maintaining it, including until any appeal to the tribunal has been heard and resolved.

We are proposing to amend regulations to provide for flexibility over matters such as the timescales in EHC needs assessments and the reviews, re-assessments and amendments process where particular cases are affected by the coronavirus (COVID-19) outbreak.

 

One to one support for children with an EHCP

For pupils with EHCPs, it will be important for them to have as consistent support as possible during this time

 

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