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Overview of the changes to EHCP statutory guidance

1 May 2020

A notice from the Secretary of State for Education issued under the Coronavirus Act 2020 to modify section 42 of the Children and Families Act 2014

Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)

This is a modification to the law it has not changed.

What remains the same the LA and health bodies?

  • Must still consider new requests for EHC needs assessment i.e. 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
  • SEND Tribunals

Annual reviews must still take place there is more flexibility of timing; they need to ensure the child or young person is at the center of the process and can engage with the process in a meaningful way

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

Admissions of a child / student with an EHCP

Settings must still admit a child 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.

What has changed

Providing for child / young person with an EHCP

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 it may be extended. 

This means that local authorities and health bodies must consider for each child and young person with an EHC plan what they can reasonably provide. The LA and health 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 i.e. some physical and sensory interventions need close proximity?
  • The themes to consider What, where, how, when and by whom when considering the provision.

It lists possible examples of such changes in 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 child/ young person or family such as brief therapy and CBT etc
  • Speech and language therapy, counselling, etc being delivered via video link

The local authority should 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 such examples

  • Decision to start an EHC needs assessment
  • If the process cannot 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.

The key to this to working is partnership working between

  • parents/carers
  • the young person
  • professionals
  • settings
  • LA
  • Health

 

Co-production and communication is a key principle