• Must still consider new requests for EHC needs assessment ie whether to agree to start an assessment
• Must ask for advice and information from all the required professionals 
• Must seek the views and wishes of a child, the child’s parent or a young person
• Must continue to fully involve parents/careers and young people in any decisions both at the individual level and strategically
• Reviews and re-assessments of EHC plans must still take place
• Admissions 15 day consultations still apply
• Complaints and rights of appeal still apply
• SEND Tribunals still apply

Annual reviews must still take place there is more flexibility of timing; they need to ensure the child or young person is at the centre of the process and can engage with the process in a meaningful way. There is a power under the Coronavirus Act 2020 for the Secretary of State for Education by notice temporarily to disapply the duty to conduct annual reviews. However, he has not issued a notice under this power at this point in time, so the annual review requirements remain in place.

Priority should be given to the following groups:

• children and young people with significant changes of need or circumstances
• looked after children
• children and young people in residential provision
• children and young people in out of area provision, especially independent and non-maintained provision

The request to consider a placement that is sent to the setting for consultation over the naming of that setting will include the draft plan and all of the advice and information received as part of the assessment. This provides considerable levels of information about the individual’s needs, provision and outcomes. In addition, the proposed setting can, as part of its consideration, make direct contact with the parent or young person to discuss the admission.

Whilst the Secretary of State for Education now has powers under the Coronavirus Act 2020 by notice temporarily to disapply the duty to admit, he has not issued any such notice at this point in time. An early years provider, school, college or other setting named in an EHC plan must accordingly admit the child or young person.

Where a setting is temporarily closed, the setting must still admit. Settings must still admit children and young people and put them on roll. The child or young person must be placed on the roll and treated in the same way as other pupils or students in the setting.

Providing for Children and Young People with an EHCP

One aspect of this is that the vast majority of those with EHC plans are not currently attending their usual education setting. This may make it more difficult for the local authority or health commissioning body to secure or arrange the full range of provision in an EHC plan. It may also not be appropriate during the outbreak for local authorities, health bodies, educational psychologists and other professionals to provide their usual level of service delivery in relation to the EHC needs assessments and plans processes. This is why the law in relation to these matters has temporarily been modified.

The LA and health are still responsible and must use ‘reasonable endeavors’ to secure the provision in an EHCP, this duty can be discharged as long as the LA has made these ‘reasonable endeavors’ to seek provision. 

This applies between 1-31 May 2020 and it may be extended. 

This means that local authorities (LA) and health bodies must consider for each child and young person with an EHC plan what they can reasonably provide. The LA with schools, settings and health providers should explore with parents and the child or young person what provision can reasonably be secured or arranged considering the following factors:

• Workforce capacity - does the workforce available have the skills and expertise to deliver the provision
• The child’s specific circumstances
• Do the interventions stated in the EHCP comply with social distancing ie some physical and sensory interventions need close proximity?
• The themes to consider What, where, how, when and by whom when considering the provision.

Examples of such alternative arrangements:

• a part-time timetable
• a temporary placement in another school
• class sizes being significantly reduced to ensure social distancing compliance
• weekly phone or video contact from school staff to monitor home learning programmes, to provide feedback, and to make adjustments as necessary
• specialist services providing interventions to the cyp or family such as brief therapy and CBT by EPs, ASC intervention by SENSS, HVSS
• speech and language therapy, counselling, CBT and ELSA approaches being delivered via video link

The local authority should work with schools and settings and keep a record of the provision it decides it must secure or arrange. It should then:

• confirm to the parents or young person what it has decided to do and explain why the provision for the time being differs from that in the plan

keep under review whether the provision it is securing or arranging means that it is still complying with the reasonable endeavours duty, the needs of a child or young person may change over time (particularly in the current circumstances) as may the availability of key staff or provision. 

Statutory Timescales for EHC needs assessments and plans

• These have been modified 1 May – 25 September 2020 and they apply only if it is not reasonably practicable or impractical for example:

• Decision to start an EHC needs assessment
• If the process can not be completed with 20 weeks as soon as we know that we are applying the exception, we must let parents know this applies to any step within the process, gathering of advice, completing draft EHCP, finalising EHCP
• Notification to parents to re-assess following an annual review (currently 15 days)

Cases in progress on 1 May 2020

Regulations will come into force on 1 May. If consideration of a request for an EHC needs assessment or one of the processes that may follow is in progress on that date, then the relevant exception to the timings could apply if coronavirus (COVID-19) had caused delay. This would depend on the facts of the case.

If the final deadline (such as the end of the 20 weeks) had passed before 1 May, the relaxations to timescales do not apply because they were not in force then.

It is important that there is partnership working between parents/carers, the young person, professionals, and schools and settings.

Annually publishing a response to comments on the SEND Local Offer

The Amendment Regulations also provide that local authorities can take more than a year to publish their response to comments (from those with SEND and their parents) on their SEND Local Offer if it is not reasonably practicable to meet that deadline for a reason relating to the incidence or transmission of coronavirus (COVID-19). Where such an exception does apply, the local authority must publish the comments as soon as reasonably practicable.