Yes. I am open in a Covid safe way.

It is important that all early years children have access to quality preschool education. This is doubly so for children with special needs, so that they can catch up with their peers, and the gap between them does not widen.

Re-opening and SEND provision

Is attendance now compulsory? 

Education settings have now reopened and are subject to new guidance on how to manage risk and reduce transmission of COVID-19. This has recently been amended to reflect changes to guidance about shielding, face coverings and educational day visits (which can resume from 12 April 2021).  

It’s important to note that this is not statutory guidance – but it is expected that places of education will use the guidance to plan how they will deliver education. 

The guidance for parents explains that all children should now be attending their setting, unless they are:

• self-isolating because they:
  • have symptoms or have had a positive test result
  • live with someone who has symptoms or has tested positive and are a household contact
  • are a close contact of someone who has coronavirus (COVID-19)
• they are one of the very small number of children under paediatric or other specialist care and have been advised by their GP or clinician not to attend.

See below information on shielding if your child is clinically extremely vulnerable.

What about SEND provision?

As above, educational setting’s statutory duties for children with SEND remain the same as they were prior to COVID-19. This means using their best endeavours to secure that the special educational provision called for by the child’s special educational needs is made. All settings must have regard to the SEN and Disability Code of Practice 2015 .  

If you have questions about how SEN Support will be delivered, ask to speak with the SENCO. See the section on EHC Needs Assessments and EHC Plans if your child has an EHC Plan. 

Duties under the Equality Act apply to all settings. 

What if there’s a local outbreak? 

The government’s message is that any restrictions on education are a last resort. The DfE contingency guidance is in place which states: 

“If there is extremely high prevalence of coronavirus (COVID-19) and existing measures have failed to reduce community transmission, restrictions affecting education and childcare may be necessary as a last resort to reduce the overall number of social contacts in our communities and help protect the NHS.” 

The guidance is clear that restrictions on attendance require “explicit approval of the DfE” and should not be used because a setting faces operational challenges.

Children who are shielding or self-isolating 

What about those who were shielding? 

From 31 March shielding advice in England has been paused. Therefore, most children who were classified as clinically extremely vulnerable (CEV) are expected to be able to attend their setting now. However, as we set out above, where pupils have been advised by their GP or clinician not to attend because of their health condition, remote learning should continue to be provided.

The setting may check that they are advised not to attend school or college by asking to see a copy of the advice sent to you. Settings should continue to follow advice about not encouraging parents to request unnecessary medical evidence as set out in the general attendance guidance.

Children who live with someone who is clinically extremely vulnerable, but who are not clinically extremely vulnerable themselves, are expected to attend their setting. 

Updated guidance for special settings notes that in “exceptional circumstances” the health risks to a particular clinically extremely vulnerable child may need to be balanced with the wider impact not attending would have on them and their family. If you think this applies to your child, you should talk to their setting which should “work with parents and other organisations to agree the best arrangement for the child and their family to ensure they continue to receive the support they need”.

EHC needs assessments and EHC plans

If my child has an EHC plan, does the LA still have a legal duty to deliver that provision? 

Last year, the Coronavirus Act 2020 temporarily amended the absolute duty to make the provision in an EHC plan (section 42 of the Children and Families Act 2014) to a ‘reasonable endeavours’ duty.  This meant that during the specified period of notices made under the Act (1 May to 31 July 2020) LAs needed to do whatever they reasonably could to put provision in place, but if they could not do so they would not necessarily be breaching the law. 

Since 31 July 2020, however, the duties under s.42 and s.43 Children and Families Act 2014 have come back into full force. This means that LA’s have an absolute duty to secure the special educational provision specified in an EHC plan and settings named in EHC plans must admit the child. 

The guidance for specialist settings states that if it becomes difficult to secure provision that LAs, settings and health providers should: 

“work with families to co-produce alternative arrangements for delivering provision. These decisions should be considered on a case-by-case basis which takes account of the needs of, and circumstances specific to, the child, avoiding a ‘one size fits all’ approach.” 

The guidance, however, reiterates that there is no intention to downgrade the statutory duty of LAs under s.42 Children & Families Act 2014 at this time. It does say that the situation will kept under review. 

However, if you have a complaint about the way the LA fulfilled its duties during the period the notices were in effect, the Local Government and Social Care Ombudsman (“LGSCO”) may be able to investigate – please see the section below on making a complaint or challenging a decision. 

Do the LA still need to carry out  EHC needs assessments? 

The government did not suspend the duty to consider requests for assessment or to conduct them. The guidance on EHC needs assessments and plans during the COVID-19 crisis made clear that requests for assessment were to continue to be considered. 

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

It would not be acceptable for an LA to refuse to assess due to the fact the child has been out of education. Time out of education may in fact make it more, rather than less, likely that a child may require support through an EHC plan. 

However, the deadlines which apply to LAs when considering EHC needs assessment requests were relaxed from 1 May 2020 to 24 September 2020. Where it was not reasonably practicable or impractical for an LA or other body to meet certain deadlines “for a reason relating to the incidence or transmission of coronavirus (COVID-19)”, they instead had to complete that step as soon as it was practicable for them to do so. 

These changes are included in the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the “Amendment Regulations”), which amend the timescales in the SEN and Disability Regulations 2014. The changes do not apply to deadlines that fell before 1 May 2021 or after 25 September 2020. The Amendment Regulations can only be relied on for the period they were in force. 

The guidance has been updated to reflect the fact that from 25 September 2020 the relaxations no longer apply and “any case that is in progress after that date to which the coronavirus exception has previously been applied will become subject to the usual statutory timescales (such as 6 weeks for needs assessments, 6 weeks for the provision of advice or information and 20 weeks for issue of a final plan)”. 

The guidance makes clear that LAs, health commissioning bodies and others with a role in the process need to consider how best to progress the matter in a timely way from 25 September 2020.  It emphasises the necessity of discussing this with parents and carers affected. 

If practical barriers are raised by professionals asked to provide advice and information during an EHC needs assessments, the relevant professional body may have published guidance on how they can operate during the Coronavirus pandemic. For example, the British Psychological Society has developed specific Coronavirus resources for psychologists. 

Will  annual reviews still need to be carried out? 

As above, the Amendment Regulations mean that annual reviews still need to be carried out but the usual deadlines were relaxed until 25 September 2020, provided the reason for the delay is “relating to the incidence or transmission of coronavirus (COVID-19)”. The guidance on EHC needs assessments and plans during the COVID-19 crisis provides more information on this. 

From 25 September 2020, the relaxations no longer apply and LAs must conduct annual reviews in the usual way.

I am aware that for many children with SEND, there will have been changes to their needs in the period in which education was disrupted.  In addition, the different ways re-opening has been undertaken will present different challenges for children and young people with SEND.  If you feel there is an urgent need to amend the provision or placement in the child’s EHC plan, speak to me and the LA about this to see what review mechanisms could be put in place. 

Furthermore, LAs are required to conduct and conclude annual reviews in anticipation of phase transfer by the usual statutory deadlines. The guidance for specialist settings makes clear how important it is that annual reviews continue and the statutory deadlines are observed. It suggests that it may be appropriate to use electronic means to circulate information or to hold virtual meetings as long as parents/carers and children are still able to participate in the process in a meaningful way.

Making a complaint or challenging a decision 

What can I do if I am unhappy with the proposals regarding my child’s education? 

If your child does not have an EHC plan, or your complaint is about something the setting has done, you should raise this with me.

If your complaint is about the provision in a child’s EHC plan not being made, you should complain to the LA.  IPSEA’s  model letter 6 may help you do this. If you do not receive a satisfactory response, you may wish to escalate your complaint to the Local Government and Social Care Ombudsman (“LGSCO”) – see below for more information. 

If you are unhappy with a decision by the LA about an EHC needs assessment or about the content of an EHC plan, you can appeal to the SEND Tribunal. 

Will SEND Tribunal appeals continue? 

Yes – please see IPSEA’s  SEND Tribunal update. 

The SEND Tribunal has been holding hearings on paper (i.e. written evidence only), by telephone or by video since Monday 23 March 2020. With these measures, it is expected that there should be no need to adjourn hearings if the parties are ready to go ahead, even though they may not be able to take place in person. A barrister from Landmark Chambers has written a blog about his experiences of a video hearing.  

The Tribunal has asked parties not to call the Tribunal until 2 days before hearings if they haven’t heard anything as, like every public service, they are affected by staff shortages as a result of COVID-19. 

How can I escalate a complaint about an LA to the LGSCO? 

You can submit a complaint to the LGSCO via their website. If your complaint involves COVID-19, please see the LGSCO factsheet on how they will investigate it. This includes the following helpful statement: 

“We will expect councils and care providers to have acted within law and guidance unless there were clear, compelling, and relevant reasons to do something else. We will expect appropriate record keeping, delegation, decision making, and other principles of good administrative practice, appropriate for operation during a crisis.” 

For urgent issues, you should contact your LA or me.

Further information 

Where can I find more information? 

The Council for Disabled Children (CDC) has launched two new email inboxes aimed to answer questions, collate resources and share information on COVID-19 and the impact on children with SEND and disabilities. 

Questions can be sent to the ‘CDC questions’ inbox, CDCquestions@ncb.org.uk. The CDC will collate Frequently Asked Questions (FAQs) and share them with the DfE and Ministers as appropriate, in order to publish an FAQs newsflash each Friday. To receive the FAQs newsflash please sign up to their mailing list, selecting the ‘CDC Digest’ option. 

The ‘CDC resources’ inbox, CDCresources@ncb.org.uk, is for parents, carers, sector professionals and practitioners to share resources, to support families of children with SEND and practitioners across the disabled children’s sector. The CDC will add these resources to their COVID-19 Support and Guidance webpage. The webpage is kept under continuous review. 

Additionally the government has issued: 

• advice to help adults with caring responsibilities look after the mental health and wellbeing of children, including those with additional needs and disabilities, during the COVID-19 outbreak. This guidance includes contact details for a number of organisations offering advice and information. 
• a list of education resources for home education during the COVID-19 pandemic. This includes links to SEND and disability and mental wellbeing-specific resources. 
• case studies to share examples of remote education practice for schools during coronavirus following consultation with schools and academies across England. One of them focuses on supporting the wellbeing of primary pupils with SEND. 
• A well being resource can also be found here. 

If you are a low-income family and your child or young person (up to the age of 17) is “disabled or seriously ill” you may be able to access support from the Family Fund. This fund will receive a multi-million pound grant to assist it in providing vital equipment to low-income families, including the those with children or young people with special educational needs and disabilities. This could include computers, specialist equipment and educational toys. Families in England can find out more about this, including the eligibility criteria, and apply for grants from Family Fund directly here. 

Other charitable organisations may also be able to assist.