The Coronavirus Act 2020 received royal assent on 25 March 2020. It makes various changes to the law as part of Parliament’s emergency response to the coronavirus pandemic. Some parts are relevant in the world of special educational needs. In addition, the Government has produced several pieces of guidance this is not legislation, but it gives us an explanation of the Government’s intentions and should be read alongside the legislation).
Below is a summary of the five most notable points, in our view, relevant to disabled children, that arise from the Act and the accompanying guidance:
1. Since Monday 23 March 2020, the majority of children in England and Wales have not been attending school, but vulnerable children and children of critical workers may continue to attend.
The Government’s view, which has not changed since it announced intentions to temporarily close schools, is that the majority of children will not attend school at the present time, with the two following exceptions:
a. Vulnerable children (children with a social worker or with an EHC plan).
b. Children who have at least one parent who is a critical worker (the Government has provided a list in guidance).
For children with EHC plans, the Government, in guidance, has set out its intention that their education placement will undertake a risk assessment of the child, in conjunction with the local authority and the child’s parents, to establish whether or not the child ‘needs’ to remain at school. Factors to be considered include whether or not the child would be safe at home, the potential impact to their wellbeing and the risk to them if some or all elements of their EHC plan cannot be delivered at all. It is sensible for parents to attempt to resolve any disputes regarding the outcome of a risk assessment with the placement and their local authority. Ultimately, a risk assessment and its conclusions could be challenged by way of judicial review in the High Court. However, there are only limited grounds of which a challenge could be brought.
2. Through Schedule 17, the Secretary of State for Education has the power to disapply or modify certain obligations that local authorities owe to children with special educational needs
A key section of the Children and Families Act 2014 is section 42(2), which obliges local authorities to secure all special educational provision contained within the child’s EHC plan. The Secretary of State now has the power to amend this so that rather than an absolute obligation, the local authority has to make ‘reasonable endeavours' to secure such provision.
This also applies to subsection (3), in relation to Clinical Commissioning Groups providing health care contained within an EHC plan.
We note that this power is brought into force by the Secretary producing a ‘notice’, which must expire in less than one month, meaning that this power would have to be ‘actively refreshed’ on a regular basis.
3. 2-year life and 6-month review.
Subject to limited exceptions, the Act’s maximum duration is 2 years, according to section 89. In addition, Parliament will have the opportunity to bring to an end the majority of the provisions contained within the Act every 6 months, according to section 98.
4. The Secretary of State for Education can 'shut down’ all manner of education institutions.
The Secretary of State’s powers, being both the power to shut down an institution and also to have it run on a continuity basis (supporting vulnerable children and children of critical workers) relate to ‘relevant institutions’, which is defined extremely broadly, and includes independent schools, academies, childcare providers, further education colleges and even universities.
5. Much of the Care Act 2014 dis-applied.
Of greatest significance, Schedule 12 of the Act means that local authorities do not need to comply with their duties under the Care Act 2014 to assess individuals for social care, conduct social care needs assessments of their carers and determine whether any social care needs meet eligibility criteria. A local authority must only meet an adult's social care needs where that individual is ordinarily resident within the local authority’s area and a failure to meet such needs would result in a breach of that person’s rights under the European Convention on Human Rights.
We are concerned that a lot of information has been placed on social media which has unnecessarily heightened anxiety levels amongst parents. We hope the above has served to provide clarity and reduce such anxiety.
The Education Team at Geldards are working alongside Sunshine Support and are available to advise as many parents as needed through the new legislation and ensure the most vulnerable children in our society remain protected through these challenging times. We have already conducted Tribunal hearings via video link, as well as arranged video link assessments of children, where that has been appropriate. Technology is a wonderful thing and allows us to progress all our cases from the safety of home. Parents are not alone during these unprecedented times. Most importantly, we are here to help.
For more information please contact a member of our Education Team
Finally, we are grateful to barrister Alice de Coverley of 3PB Chambers who has collected together a list of relevant guidance documents, accurate as at the end of 26 March 2020:
- Guidance on Vulnerable Children and Young People: here.
- Guidance for educational settings in providing advice about coronavirus: here.
- Guidance about maintaining educational provision: here.
- Guidance on Isolation for Residential Education Settings: here.
- Guidance for Schools about Temporarily Closing: here.
- Q&A for Parents and Carers: here.
- Cancellation of GCSEs, AS, and A levels in 2020: here.
- Free School Meals: here.
- Guidance for apprentices, employers, training providers, end-point assessment organisations and external quality assurance providers: here.
- Maintaining education and skills training provision: further education providers: here.
- Early Years + Childcare closures: here.
- Attendance recording guidance: here and FAQ here.
Travel guidance: here.
This was originally posted on Sunshine Support website which can be viewed here.