How Will the Third Lockdown Affect Children and Young People with Special Educational Needs, in England and Wales?

Following the respect announcements of a third lockdown for both Wales and England, and the subsequent announcement that schools would be closed to most pupils, the Governments have issued amended legislation and updated guidance as to how this will affect children and young people with special educational needs. This Blog will explore the effects of these. 

England 

Tier 4 restrictions mean that people can no longer leave their house unless they have a reasonable excuse which includes attendance for education if this cannot be undertaken at home.  Further, education and training, and the special educational provision in an EHCP, is an exception to the limit on the size of gatherings. 

There has been no suspension of Special Educational Provision, the Care Act 2014 and specifically in respect of Section 42 Children and Families Act. This means that Education Health Care Plans, and the Special Educational Provisions contained within them, must still be complied with.  It is permissible for some provision to be delivered online, rather than face to face, so long as it is still effective and where doing so is necessary. 

Schools, and other educational placements, must still admit children and young people who are considered to be “vulnerable”.  This now includes children with EHCPs, looked after children, children with a child in need plan, children with a child protection plan, and children who have been identified as vulnerable by the Local Authority. Vulnerable children are not to be forced to attend school but are encouraged to do so, provide that the school is safe.

Schools must also admit the children of critical and keyworkers during this lockdown.  There is not an exhaustive list of what is construed to be a critical or keyworker however the Government have provided examples who include, health and care workers, education and childcare staff, key public services workers, government workers, food and necessary goods workers, transport and border staff and utilities workers.

It is also important to note that the general duties of timescales for assessments, compliance with Tribunal Orders and annual reviews remain unchanged.

Wales 

Alert Level 4 restrictions mean that people can no longer leave their house unless they have a reasonable excuse which includes attendance for education if this cannot be undertaken at home. There is no exhaustive list of reasonable excuses to leave home.

There are limited circumstances when a gathering of people from outside of your household and support bubble is permitted; this includes accessing and receiving education and childcare, including the provision in a Statement of Special Educational Needs. This means that if Special Educational Provision in a Statement needs to be undertaken as part of a group, this can still be undertaken even with strengthened Alter Level 4 lockdown restrictions.

There has been no suspension of Special Educational Provision, the Social Services and Well-being (Wales) Act 2014 and specifically in respect of the duty upon LEAs to provide special educational provision under Education Act 1996. This means that Statements of Special Educational Needs, and the Special Educational Provisions contained within them, must still be complied with.  It is permissible for some provision to be delivered online, rather than face to face, so long as it is still effective and where doing so is necessary.  

Schools, and other educational placements, must still admit children who are considered to be “vulnerable”.  It is the duty of the educational placements’ proprietor to identify children and young people who are “vulnerable”. There is no exhaustive list of who may be considered “vulnerable” but the Welsh Government have adopted a broad meaning to “vulnerable” which includes; learners with special educational needs (both with and without Statements), care-experienced children learners, leaners who are educated other than at schools (EOTAS), children of refugees and asylum seekers, Gypsy, Roma and Traveller children, learners who are eligible for free school meals, young carers and children at risk of harm, abuse or neglect. 

Schools are currently only open to children and young people who are considered “vulnerable” and the children of critical workers. These closures are currently in place until 29 January 2021 but it anticipated that this will be extended to at least the February half term. Special schools and Pupil Referral Units will remain open to support “vulnerable” pupils. If a school is closed, alternative arrangements will need to be made for vulnerable children and young people. 

Schools must also admit the children of critical and keyworkers during this lockdown.  There is not an exhaustive list of what is construed to be a critical or keyworker however the Welsh Government have provided similar examples to Westminster. 

It is also important to note that the general duties of timescales for assessments, compliance with Tribunal Orders and annual reviews remain unchanged.

Conclusion 

In conclusion, children and young people with special educational needs in both England and Wales should continue to have the option to attend school. Further, they should continue to receive the special educational provision as detailed in their Education Health Care Plans and Statements of Special Educational Needs. 

In addition, familes’ right of appeal to the Special Educational Needs and Disability Tribunal (SENDIST) and the Special Educational Needs and Disability Tribunal of Wales (SENTW) are unaffected so parents and young people can continue to challenge Local Authorities in respect of EHCPs and SSENs.

It is therefore even more important that EHCPs and SSENs are as full as possible.  It is also vital that Section I names a suitable school who will be able to continue providing special educational needs even in light of these changes.

We understand that these changes to legislation are a huge cause for concern for parents of children with Special Educational Needs. We are here to assist parents in these uncertain times. Please therefore do not hesitate to contact our Specialist Education Law Solicitors on 0333 202 7175 for advice and guidance, or send us an email on education@hcbgroup.com.