How changes to the law will affect SEND provision in England
On May 1, the law in England was temporarily modified in two key ways in relation to the provision and timescales for EHC plans:
- The duty on local authorities/health commissioning bodies to secure or arrange special educational provision and healthcare provision set out in an EHC plan has been modified to what is reasonable to provide in the circumstances. This accepts that the provision may need to be temporarily different to that which is set out in the EHC plan.
- The regulations that set statutory timescales that apply to the processes for the creation of an EHC needs assessment and plan have been relaxed. This allows healthcare professionals time to respond as soon as is practicable rather than to usual specific time limits (when a delay is directly related to the incidence or transmission of Coronavirus)
All other aspects of SEND law remain unchanged, including the obligation of local authorities to consider requests for new EHC needs assessment or re-assessment. This should still include securing the required advice and information in order to be able to issue a plan. Annual review requirements remain in place but there is flexibility around the timing of the reviews.
The guidance emphasises the temporary and specific nature of the legislative changes to reassure parents/carers that while a child or young person’s provision may be different from that which is set out on their EHC plan, organisations will continue to seek to support his/her needs.
It stresses the importance of co-production and communication between all parties involved in EHC plans and processes. This is to ensure clarity for families of those with SEND and identify the most appropriate ways forward that balance the needs of the children and young people with SEND with managing the demands on local authorities and health bodies in the current health emergency.
In addition, the guidance suggests a framework for a decision-making process and how provision in an EHC plan may be modified or delivered in an alternative way, for example, through remote consultations.
Update, 10 June 2020
The above temporary legislative changes remain in place. However, new guidance has been issued by NHS England and NHS Improvement on the restoration of community health services for children and young people (CYP) during this second phase of Covid-19 response in England.
The guidance states that community services for children and young people with special educational needs and disabilities (SEND) must be prioritised for those with an Educational Health and Care Plan (EHCP) in place or in the process of assessment for one.
The annex to the “COVID-19 prioritisation within community health services” has been updated to support this and illustrates where services for CYP should be partially or fully restored over the coming period.
While some face-to-face consultations will occur, services will also continue to adopt virtual delivery where appropriate.
- Education, health and care needs assessments and plans: Guidance on temporary legislative changes relating to coronavirus (COVID19)
- SEND code of practice: 0-25 years
- Supporting vulnerable children and young people during the coronavirus (COVID-19) outbreak
- COVID-19 prioritisation within community health services