Changes to the law on education, health and care needs assessments and plans due to coronavirus

Updated: Aug 13, 2020

Due to Covid-19, some aspects of the law on education, health and care (EHC) needs assessments and plans have had temporary amendments  ‘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). In this article, we take a look at those changes, how they affect the early years sector and attempt to understand what the changes may mean in practice.

Due to staffing levels, children not in settings and many other variable factors brought on by Covid-19, Local authorities and health commissioning bodies may not be able to meet statutory timescales for EHC needs assessments and plans. It is only some aspects of the law on EHC needs assessments and plans that have changed temporarily; and where this has happened, the law has been modified, not disapplied. The duties in law over EHC needs assessments and plans have not been ‘turned off’.

‘Local authorities and health bodies must consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances during the notice period. For some individuals, this will mean that the provision specified in their plan can continue to be delivered; but for others (because of the impact of coronavirus (COVID-19) on local authorities or health commissioning bodies) the provision may need temporarily to be different to that which is set out in their EHC plan.Once the notice expires or is cancelled, local authorities and health commissioning bodies would in all cases need to secure or arrange the full range of provision, as specified in the EHC plan.’

One of the major changes is around timescales. LA’s and health commissioning bodies must now carry out their duties as soon as is reasonably practical. This ambiguous statement will come as no surprise to early years providers who often find themselves frustrated by the length of time it takes for children under 5 to be assessed and supported. However, we also understand that in these unprecedented times, we need to make allowances.

The duty on early years providers to co-operate with the local authority in the performance of its SEND duties remains in place. Close working and communication between all parties is a central element in ensuring that children and young people do receive appropriate provision. Therefore, as early years leaders, you must still comply with your duty to liaise and work with LA’s and health commissioning bodies. Whilst this is a duty we do not take lightly, there is the issue of carrying out work while furloughed. Many leaders will now be questioning how they can continue to work with their LA, should they need to, if they are furloughed and following guidance not to work. Our advice would be to do what is in the best interests of the child and deal with the consequences later. Keep records of all contact with the LA or health commissioning bodies to present should your work during furlough be questioned.

The guidance also identifies some ways in which provision for children with EHCPs may change during this period. We have identified the ones which we feel are particularly focused on the early years:

  • Speech and language therapist delivering sessions via video link

  • Health visitor or school nurse providing health advice or developmental reviews via teleconferencing

  • The parent and child travelling to receive the therapy at suitable premises, where this can be done in ways consistent with guidance on reducing the transmission of coronavirus (COVID-19)

  • Occupational therapist or a physiotherapist video linking to a child’s home and modelling exercises that the parents could do with their child

  • Where an EHC plan already includes a personal budget or a direct payment, widening its use to enable the purchase of equipment or other relevant material to support home learning

As leaders in the EY sector, it is important to understand that these temporary changes to the law only affect various statutory timescales for processes relating to EHC needs assessments and plans. All of the other requirements of the EHC needs assessments and plan processes remain unchanged. Your LA must still consider requests for a new EHC needs assessment or a re-assessment, this has not changed, however, the timescales usually in place have now changed to allow the duty to be carried out as soon as is reasonably practicable.  Where your LA decides to carry out an EHC needs assessment, it must still secure all of the required advice and information in order to be able to issue a plan. Moreover, one of the timescales relating to EHC plans is giving parents or the young person at least 15 days to give views and make representations on the content of a draft plan. There is no change to the law here.

A final EHC plan must still include all of the required advice and information. The provision set out in the final plan should be in line with the statutory requirements for any EHC plan and not be limited because of the circumstances of coronavirus (COVID-19).

There has been no changes to the process for complaints and the rights of appeal of parents and young persons.

Please notes that the ideas, thoughts and opinions in this article are those of The Key Team and do not replace any guidance issued by public bodies or set out in law.

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