The Government’s coronavirus legislation includes emergency powers to change the law, for a temporary period, on support for children with special educational needs and disabilities (SEND). This may affect children on the autism spectrum who have an education, health and care (EHC) plan, or who are waiting for an assessment to see if they need an EHC plan.
The Department for Education has set out guidance for parents, councils, schools and local NHS organisations on what has changed (and what should remain unchanged), and how these changes should be implemented in local areas. We have summarised the guidance and the impact this could have on autistic children and their families during the coronavirus outbreak.
Are all autistic children and young people affected?
Not all autistic children and young people will be affected by these changes> They apply to children who have an EHC plan. The changes may also affect children who are currently waiting for an EHC needs assessment, which is the process of identifying exactly what a child’s needs are and what support they require.
What has changed?
There have been two main changes to the law on support for children with SEND:
- For children and young people who have an EHC plan, councils no longer have a legal duty to make sure that they receive the exact education provision and health care provision set out in their plan. The Government now only expects councils to use ‘reasonable endeavours’ – which means they need to try their best – to make sure that children’s EHC plans are implemented. But, it allows councils to decide if this isn’t possible. This change is currently in force between 1 to 30 June 2020, but the Secretary of State can extend this every month.
- For children and young people who are waiting for an EHC assessment, or for an EHC plan to be written for them, the Government has removed the time-limits on councils to carry these out. Under usual circumstances, councils have to complete assessments within six weeks and issue a plan within 20 weeks from the date an assessment was requested. The new regulations say that, if the usual time-limits can’t be met for reasons relating to coronavirus (for example, if key staff are off sick), these time-limits don’t apply. Instead, councils must complete the process ‘as soon as reasonably practicable’. This removal of time limits on the assessments process lasts from 1 May until 25 September 2020.
-
What has not changed?
These are the only changes to the law on support for children with SEND. Schools and other education settings still have a duty to accept a child or young person who has an EHC plan that names the school in the plan. Even if the school or other education setting is currently closed due to the coronavirus outbreak, they must still accept the child onto their roll during this period.
Schools and other education settings still have to respond to a proposal to name them in a child’s EHC plan in the usual timeframe. The complaints process and families’ right to appeal to the SEND Tribunal is also still the same.
If your child has an EHC plan, what can you expect?
When your council and local NHS organisations are deciding what education and health care can be provided for your child during this period, they should consider:
- specific local circumstances in your area (for example, which schools are closed, or how many staff are absent from work)
- the needs and circumstances of your particular child
- your views as a parent on what provision might be appropriate for your child.
If your council and local NHS organisations decide that they cannot provide what your child’s EHC plan says your child should receive, they should make alternative arrangements. Examples of alternative arrangements include:
- part-time timetable at school
- temporary placement at another school, with your agreement, if your child’s usual school is closed
- attendance at a local ‘hub’ (where a number of schools share a single space during this period)
- video classes
- home learning programme
- advice and support for parents from specialist teachers on autism and other types of need
- video sessions with a speech and language therapist or occupational therapist.
Your council and local NHS organisations should:
- keep a record of what they have decided to provide for your child
- confirm to you what they have decided, and explain why this is different to what is set out in your child’s EHC plan
- review regularly what is provided, based on any change in your child’s needs or circumstances.
If you are waiting for an EHC assessment or for an EHC plan to be produced, what should happen?
The process of assessing your child’s needs and producing an EHC plan should continue during this period. The only thing that has changed is the time-limits for different stages of the process. The removal of time-limits should only apply for reasons relating to coronavirus, such as staff absence.
Your council should make decisions about your child based on your child’s particular needs and circumstances. Councils are not allowed to introduce ‘blanket’ policies affecting all children. For example, there should be no blanket removal of time-limits for carrying out assessments and producing EHC plans, or no blanket policy on what will or won’t be available.
Are there any changes to annual reviews of EHC plans?
Local authorities are still required to review your child’s EHC plan annually, this hasn’t changed. If your child’s annual review is due during this period and it is impractical to complete it for reasons relating to the coronavirus outbreak, the councils must make sure it is carried out as soon as reasonably practicable.
What does the National Autistic Society think about these changes?
We are really worried that autistic children and young people will lose out on the support they need, and that the Government’s guidance won’t always be followed in local areas. We are particularly concerned about the impact these changes to the law will have on autistic children with the greatest needs. Even though the changes are temporary, the effects on children and young people could be long-lasting. We have set out what we’re saying to the Government about this in a news story.