5 things we know about the impact of Coronavirus on EHCP processes
5 things we know so far….
1) Corona Virus Bill changes ‘absolute duty’ to ‘reasonable duty’
The idea is that the Bill offers flexibility to school/LAs so that they are not too scared to take action in the interest of the pandemic, for fear of being prosecuted.
What it means is that Special Educational Provision (Section F of the EHC plan) does not have to be delivered if it is not reasonable to do so, at this time.
Obviously the risk of downgrading the duties of the LA, means that SEN children/YP could find themselves without the rights to make sure some exceptionally significant needs are met. What Steve Broach asks in his video for Special Needs Jungle is… are these measures strictly necessary; are they a proportionate response;-do we need to turn an absolute duty to a reasonable endeavours duty? Watch the video here.
2) Appeals are still being registered
These are still going through the system which is really good news. Bright Futures are still applying on the behalf of parents and although the system maybe slightly lagging, your rights to appeal are being processed.
What we predict is that the main issue may lie with getting you hands on the rights to appeal if the whole process is going slower for a number of reasons (staff sickness etc). If you have your rights for appeal, we suggest not delaying. It is best to register an appeal now and you can always delay it using a ‘request for change’ form, but still reserve your rights.
3) Tribunals are still being heard
Tribunals are being heard via telephone or video conference. Courts have already been trialling video conference so they are slightly ahead of the game! Again, this is great news. Click here to find out how a recent one went.
The new guidance for how hearings will be conducted is as explained by Special Needs Jungle here.
4) EHC Processes
Whilst the government has stated that they are considering provision of flexibility for the LAs with regards to the EHC process : ‘We are also considering amending SEND regulations to change timescales relating to EHC plan processes.’, we are yet to learn exactly what this means. Without any further guidance, here at Bright Futures we are progressing things as normal and asking LAs to comply with the normal deadlines. We are expecting families to still get updated plans by 31st March (per legal statutory duty for moves to post 16). We also see no reason why parts of the annual review processes can not continue to be completed. Yes, EHC assessments are going to be difficult, but we are still applying on behalf of parents in order to register the need for one.
The process of EHC assessments are most likely going to be significantly affected, as professionals like to do these in person, in schools - which indeed is best practice. We predict that this part of the EHC process will be the hardest hit. However, by getting an application in now, you will be ‘top of the list’ for when the professionals are able to assess again, if the government alleviates the duty of the timeframe with regards to this, which it is likely to do.
5) You will not lose your placement
Some families are concerned that they may lose a placement if they do not go. Understandable - seeing as some placements have been so hard to secure and fight for. However, parents who consent to changes to, or reductions in, their child’s provision during this outbreak will not be considered to have agreed a permanent change to what their child needs in their EHC plan. (see guidance here).
OUR ADVICE:
Do not Delay
Do not delay in your actions. If you were thinking you needed to apply for an EHC, appeal a decision or hold a review, request it. Tribunals are full steam ahead, and they will direct LAs appropriately. If assessments can not be done until later in the year, at least you will have registered your application. Furthermore the LA could initially refuse your EHC application (this unfortunately does happen) so if this is the case, you could use this time to appeal the decision (which can take 2 -3 months). This could have been the outcome in any event, so you would just be using the time wisely.