Coronavirus and changes in SEN Legislation

September 24, 2020

Many parents, carers and support groups were concerned earlier this year when, on 1 May 2020 some aspects of the Law relating to Education, Health and Care (EHC) needs assessments and EHC Plans changed temporarily to give local authorities, health commissioning bodies, education settings and other bodies who contribute to these processes more flexibility in responding to the demands placed on them by Coronavirus (COVID-19).

The changes included:-

1. The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’) which temporarily amended 4 sets of Regulations in so far as they specified the timescales that apply to local authorities, health commissioning bodies and others relating to EHC needs assessments and EHC Plans. The Amendment Regulations provided that where it is not reasonably practicable or it is impractical to meet a prescribed time limit for a reason relating to the incidence or transmission of coronavirus (COVID-19) then a local authority can complete the process/take the necessary steps as soon as reasonably practicable or in line with any other timing requirement in any of the regulations being amended.

The Amendment Regulations apply: –

1. to the requirement for a LA to issue a Final EHC Plan within 20 weeks of the initial request for an assessment.
2. to the timescales in which a local authority must take action following an order being issued by the First-tier Tribunal.
3. where the First-tier Tribunal makes non-binding recommendations in respect of health and social care matters within an EHC plan (as part of the National Trial, which continues and has been extended until at least 31 August 2021).

The changes brought in by these regulations will come to an end on 25 September 2020, after which the usual statutory timescales will come back into force.  Therefore, if your local authority has delayed in carrying out its statutory duties eg: exceeded the timescales for conducting an EHC Needs assessment or for complying with a SENDIST order, pressure can now be brought on the LA which will no longer be able to rely upon the extensions granted by the Amendment Regulations.

1. Coronavirus Act 2020 and Section 42 of the Children and Families Act 2014

A notice from the Secretary of State for Education issued under the Coronavirus Act 2020 modified the requirement of Section 42 of the Children and Families Act 2014 which sets out a LA’s duty to secure Special Educational Provision in accordance with a child’s EHC Plan. This statutory duty was modified by the Secretary of State for Education from 1 May to 31 July 2020 so that local authorities and health commissioning bodies were required to use only their “reasonable endeavours” to discharge this duty.

The Government has indicated that to ensure children and young people receive the support they need to return to school, it will not be issuing further notices to modify the Statutory Duty of Local Authorities to secure the Special Educational Provision specified in a child’s EHC Plan.

These temporary changes to the law were challenged by way of a Judicial Review action in the case of Amber Shaw and ABC v Secretary of State for Education [2020] EWHC 2216 (Admin).  In his judgement handed down in August 2020 Mr Justice Kerr, dismissed the application on all grounds whilst acknowledging the decisions were of vital importance to the children and young people concerned.  Mr Justice Kerr found that the Secretary of State had not acted unlawfully and whilst The Amendment Regulations were only laid before parliament one day before they came into force, giving very little opportunity for scrutiny, Mr Justice Kerr considered this to be a decision of Parliament which was not “justiciable” in the Courts and that is was not irrational given the urgency of the situation during the Coronavirus pandemic.

Given that the Regulations referred to will no longer apply from 25th September 2020, parents can start to put pressure on their Local Authority if the LA has delayed in taking certain actions and has sought to justify the delay  by relying on the extensions granted by the  Regulations. Action can now be taken by way of Judicial Review proceedings to require a Local Authorities to secure the Special Educational Provision specified in a child’s EHC Plan and a LA can no longer rely upon the fact that they have used reasonable endeavours to source provision and have been unable to do so.

If you need help regarding an Education, Health and Care (EHC) needs assessment, EHC Plan or a SENDIST Order please contact Imelda Brennan who heads up Tayntons’ Education Law team that provides specialist advice to parents, carers, other solicitors and case managers about the rights of children and young people regarding a wide range of Education matters and, in particular, Special Educational Needs.

Imelda Brennan