The Rights Of Children With SEND During The Pandemic

The Rights Of Children With SEND During The Pandemic Presented by: Dr. Irving Date: 5 November 2020 Children and Families Act 2014 – EHC Plans - See also SEND Regulations 2014 and SEND Code of Practice - Replaced Statements of SEN with EHC Plans - LA must secure an EHC Plan where child or young person assessed and determined it is necessary for special educational provision to be made in accordance with an EHC Plan - Effectively = where special educational provision required cannot reasonably be provided from within resources normally available to mainstream schools Content of EHC Plans - Section A: views, interests, aspirations of child and parents - Section B: child's special educational needs - Section C: child's health care needs which relate to SEND - Section D: child's social care needs which relate to SEND - Section E: outcomes sought for the child - Section F: special educational provision required by the child - Section G: health care provision - Section H: social care provision - Section I: placement - Section J: direct payment details EHC Plan duties - Section 42 CFA 2014: • (2) The local authority must secure the specified special educational provision for the child or young person. • (3) If the plan specifies health care provision, the responsible • commissioning body must arrange the specified health care provision for the child or young person. - Section 43 CFA 2014: • (1) Subsection (2) applies if one of the following is named in an EHC plan (a) a maintained school... (c) an Academy etc. • (2) The governing body, proprietor or principal of the school or other institution must admit the child or young person for whom the plan is maintained. EHC Plan process - EHC needs assessment. - Decision as to whether to issue EHC Plan and its content. - Annual reviews of EHC Plans, which can result in amendments. - Reassessments. - Ceasing an EHC Plan. - Processes subject to timescales in SEND Regulations 2014. - Decisions subject to appeal to First-tier Tribunal: s. 51 CFA 2014. Before The Pandemic - Local Government Ombudsman Report 'Not going to Plan' (October 2019) "we upheld nearly nine out of 10 investigations (87%) last year. This is exceptional and unprecedented in our work. It compares with an average uphold rate of 57% for all investigations discounting SEND cases... Our latest investigations... suggest a system in crisis." - Joint inspections of LAs by Ofsted and CQC since May 2016. As of 20 March 2019, 49% of those who received an outcome letter following inspection had performance so poor that the most serious sanction was imposed: LA required to submit a written statement of action. - Commons Select Committee (Education) 'Special educational needs and disabilities' report (October 2019) • "Let down by failures of implementation, the 2014 reforms have resulted in confusion and times unlawful practice, bureaucratic nightmares, buck-passing and a lack of accountability, strained resources and adversarial experiences and ultimately dashed the hopes of many... • The reforms are the right ones. But their implementation has been badly hampered by poor administration and a challenging funding environment in which local authorities and schools have lacked the ability to make transformative change... There is too much of a tension between the child's needs and the provision available... We have found that many local authorities are struggling with the reforms, and in some cases this has led to unlawful practice... • We have a system of unmet need and strain. This unmet need is creating poor broader experiences, for children, young people and their families, schools, colleges and local authorities..." Legal Changes During The Pandemic - Section 38 and Schedule 17 Part 1 para 5 Coronavirus Act 2020: • Empowered the SS to make a month-long notice that would downgrade the duty in s.42 CFA 2014: "is to be treated as discharged if the person has used reasonable endeavors to discharge the duty. • - The SS made three notices, covering May, June and July. SEND (Coronavirus) (Amendment) Regulations 2020 • Relaxed timescales in EHC Plan process: where "it is not reasonably practicable or is impractical for a person to meet the specified timeframe because of the coronavirus pandemic" then must take step in question "as soon as reasonably practicable." • Came into force 1 May 2020. Expired 25 September 2020. Effect Of Changes During The Pandemic - Children's Commissioner's statement • "Leaving it in the hands of local authorities and CCGs to determine what is reasonable... makes it difficult to hold local authorities and CCGs to account. This could further exacerbate the 'postcode lottery' in SEND provision..." - Letter from almost 50 sector organizations, including Contact, CDC, NAS etc. • "Parents are reporting that some local authorities are making little or no attempt to engage with them to agree what provision in their child's EHC Plan will continue... • We are concerned about reports regarding the number of therapeutic interventions not being provided, and the potential impact of this on children's physical and mental health and wellbeing both now and in the longer term." - Disabled Children's Partnership survey of 4,000 UK families with disabled children (May 2020): • 76% of families who did receive support before lockdown have had all support withdrawn during the Coronavirus pandemic. • Half of parents whose children had been receiving crucial therapies or other extra support have seen this stop. • 86% of parents said that lockdown has had a negative impact on their disabled children's learning and communication. Legal Challenge To Changes During Pandemic - R (Shaw and Anor) v SS for Education [2020] EWHC 2216 (Admin) • Ground A: failure to consult • Ground B: breach of Tameside duty  Inadequate inquiry  Incomplete, inaccurate or misleading briefing • Ground C: irrational to lay Amendment Regs before Paarl the day before they came into force • Ground D: reasons as to why 'appropriate and proportionate' to make notices irrational • Ground E: breach of duty under s. 7 CYP Act 2008 to have regard to the wellbeing of children - SS announced on 2 July that he "presently has no intention of issuing equivalent national notices modifying section 42 of the CFA 2014 after the July Notice unless the evidence changes." - Did this render the claim academic? - Judgment of Mr. Justice Kerr: • §104: "The impact on parents and their children with SEND was sudden and severe and came at a time when there had already been serious failures in delivery of SEND provision, before the pandemic struck. The effect of the virus on deliver of SEP began in March 2020, before any change in the law. But the Amendment Regulations and the three notices had a disproportionate impact on children with SEND as the defendant's own impact assessments confirmed."  Grounds A and C: Permission granted but unsuccessful.  Ground B, D, E: Permission refused. • Applied for Permission to Appeal to CA. Ongoing challenges for children with SEND - DfE "Guidance for full opening: schools" (updated 22 October 2020) • School attendance mandatory from beginning of autumn term • Parental duty to secure attendance, school responsibility to record absences, and availability of sanctions such as Fixed Penalty Notices