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It has been announced today that the Government will be introducing a Corona Virus Bill. The Bill is designed to ease the burden on front line staff and make amendments to the education arrangements currently in place in England and Wales. This Bill, if passed in its current draft format, will have significant impact in all children and young people, but especially those with special educational needs.
The Bill has passed its first reading in the House of Commons which means that it is still a draft. The Bill will undergo a second reading in the House of Commons on 23 March 2020. Thereafter, it will be scrutinised by a committee of experts and they will make recommendations. The Bill will then be returned to the House of Commons for a debate. Given the current climate and the need for urgent action it is likely that the debate will be undertaken on the same day. The process will then be repeated in the House of Lords and if no further amendments are suggested the Bill will be passed to the Queen for royal assent. It is only after royal assent has been provided that the Bill will become law.
Ordinarily, Bills of such high importance would be debated for several days but it is likely that this will be streamlined in order to pass the Bill as soon as possible. The Bill could therefore take effect within days.
It is worth noting however that the Bill is in a draft format and any of the schedules and provisions within it could potentially change during the readings in the House of Commons and the House of Lords.
Content of the Bill
This blog will primarily focus upon the amendments to the Education Act and Children and Families Act that the Corona Virus Bill will have. I will concentrate upon the expected impact upon Education and Health Care Plans and children with special educational needs.
The Bill as it stands, will make three major amendment to education:
1. Temporary closures of educational provisions.
2. Temporary continuity orders.
3. Amendment and if applications are existing set legislation.
One of the most significant amendments will be to Section 19 of the Education Act 1996. Section 19 of the Education Act 1996 imposes a duty upon Local Authorities to provide suitable education to all children and young people of compulsory schooling age in their area. The Corona Virus Bill will suspend this provision meaning that the Local Authorities will have no duty to provide suitable education. In practical sense this will mean that Local Authorities will be sending the children who are still being educated to alternative schools where their current school is closed. For children with special educational needs these transitions will not easy and there is no contingency planning for how these transitions will be managed. In addition many children with special educational needs have a key worker within their schools and it is not clear whether these key workers will move over with them to other schools.
Further, the Corona Virus Bill will relax Section 23 of the Children and Family Act 2014. At present this provision states that a school must admit a child when they are named in Section I of their EHCP. Therefore where a school is closed even if they are named on an EHCP they will not have to take the child or young person.
This could mean that children who are currently in highly specialised schools could be sent to other schools in their local area who are unable to meet their needs.
Further Section 42 of the Children and Families Act states that Local Authorities must provide the special educational provisions in Section F of an EHCP. If the Corona Virus Bill is passed in its current form, this duty will be relaxed to an extent that it will be considered discharged if the Local Authority has used reasonable endeavour to discharge the duty. Unfortunately there is no guidance at present as to what reasonable endeavours will actually mean. Therefore in a practical sense it is highly unlikely that any special educational provision which is currently being provided by the Local Authority, or within maintained mainstream schools, will actually be provided.
In effect EHCP’s will now be extremely watered down and it is unlikely that Local Authorities will have to provide special educational provision for children with special educational needs.
The current Government guidance however is that residential schools and independent schools will remain open. Therefore it is likely that children within these schools will still receive the special educational provision that they require as these schools will still be open to provide it. Therefore children with independent and residential schools named in Section I of their EHCP should still be attending these schools, and Local Authorities should still be providing funding for these placements.
The current Corona Virus Bill does not prevent parents and institutions from making requests for Education, Health and Care Needs Assessments. Further there is no suspension of the Local Authority’s duty to respond to these requests. Therefore parents can still appeal to the Special Educational Needs and Disability Tribunal if the Local Authority refuse to undertake EHCNA.
Further, Local Authorities should still be undertaking Education Health and Care Needs Assessments and then making EHCPs where so required. Failure to do so could mean that parents are still able to appeal to the Special Educational Needs Tribunal in order to secure an EHCP. It will be of even greater importance to ensure that an EHCP is provided for children with special educational needs to ensure that they are still receiving education during the current school closures.
The current guidelines are that any children who are considered to be vulnerable, or are the children of key workers, will still be attending schools. Any child with a social worker and an EHCP is considered to be vulnerable and therefore should still be attending school.
Unfortunately if the current Corona Virus Bill is to pass in its current format the Local Authorities will have no duty under Section 58 and 59 of the Care Act 2014 to undertake an assessment of the child’s needs. Therefore it would be extremely difficult to have a social worker assigned to a child currently. It is therefore preferable to obtain an EHCP for a child with special educational needs in order to secure them an education during these difficult times.
Expiry of the Bill
If the Bill passes in its current format then the expiry date will be within 2 years of the date that it is passed. The laws contained within the Bill can be stopped sooner than this if so required however this is completely at the discretion of the Government, Secretary of State and Welsh Ministers.
It is therefore possible that these relaxed laws which would ordinarily ensure that the Local Authorities provide suitable education and special educational provision could be in place for up to two years.
It is therefore even more vital that EHCPs are as full as possible. It is therefore vital that Section I names a suitable school and ideally a residential school or independent school who will be able to continue providing special educational needs even in light of this Bill.
We understand that these changes to legislation are a huge cause for concern for parents of children with Special Educational Needs. Whilst the legislation is still in draft format currently, it is anticipated that it will become binding law within a matter of days.
We are here to assist parents during these uncertain times. To discuss this matter with a specialist Education Law Solicitor please either call 0333 202 7175 for advice and guidance, or send an email to firstname.lastname@example.org.