SEND education provision during the pandemic

Education law expert Polly Kerr provides practical guidance for parents of children with special educational needs and disabilities.

Heading back to school after six months is a daunting prospect for any child, but for many pupils with a special educational need or disability (SEND) it is often nothing short of harrowing. During lockdown all pupils with the benefit of an Education Health Care Plan (EHCP) should have been able to attend school subject to a Covid-19 risk assessment, and yet according to DfE figures for the month of April, just 4% of pupils attended. 

Whilst some remained at home as a matter of parental preference, many SEND pupils were simply refused attendance, often because their attendance was deemed ‘unsafe.’ At the start of the pandemic, the government modified Section 42 of the Children and Families Act, replacing the legal duty incumbent upon local authorities that they  ‘must secure the specified special educational provision for a child or young person’ with a watered down requirement to merely use their ‘best endeavours’ to secure provision as set out in a pupil’s EHCP.

The disappointing outcome of this change in legislation has meant that sadly many families have gone on to experience very minimal or in some cases, no education for their children with SEND over the course of the academic school year following national lockdown in March.

Difficulties have been widely experienced - not solely by families seeking to access provision for their child. For families applying for or undergoing a needs assessment (for which there has been no modification of the local authorities’ duties), many parents have experienced long delays and of those EHCPs that have been issued, many have been woefully lacking in provision. 

If you are unfamiliar with the SEND process, you may think that the difficulties experienced by parents around EHCPs were to be expected, and therefore in part, forgiven against the backdrop of a global pandemic. Sadly, we have seen that Covid-19 has compounded the avalanche of issues already experienced by so many parents trying to navigate the complex, highly bureaucratic and often, adversarial SEND system. 

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With a new academic year ahead and the continued pressures on the SEND funding environment exacerbated by the ongoing Covid crisis, our expert education law specialists outline some practical tips aimed at helping you access the right support for your child:

• It’s important to remember that early intervention is often the most effective intervention – the sooner you start the process, the better.
• When pulling together your EHC Needs Assessment Request and evidence, think “what does my child’s worst day look like?” This is hard to do as a parent, but it is an important starting point to assessing need and the provision to meet it.
• Whilst your child may not be two years behind in their attainment, this does not mean that they do not need special provision set out in an EHCP. This two-year benchmark is often used by local authorities when assessing ‘need’ but invariably all children develop at different stages and rates and the SEND Code of Practice provides several considerations about all areas of development, not just academic attainment.
• Once your request has been sent to the local authority, it has a maximum of six weeks to notify you of its decision and right to appeal (if refusing to assess). Don’t be afraid to chase for a response before the expiry of six weeks. This is a limit, not a target.
• If the local authority refuses to assess do not delay in seeking to appeal this decision; delay at this early stage will only serve to elongate the process considering the time it takes for an appeal to be heard in the tribunal.
• You must be notified of the local authority’s decision whether to issue a plan within a maximum 16 weeks from receipt of the request (not 6 weeks + 16 weeks). We would recommend you seek regular updates on progress from your SEND officer.
• If an EHCP is needed, a draft plan must be sent to you for your comments and you must be given 15 calendar days (not school days) to comment and name your preference school. Respond as soon as possible to enable the local authority to commence consultation with the school (which also must be given 15 calendar days to respond) – this includes Amended Final Plans.
• The whole process from request to plan should take no longer than 20 weeks from the date of the request.
• Your right to appeal local authority decisions arises at various stages of the process including refusal to assess, refusal to issue an EHCP following assessment and in relation to the content of a final EHCP. Some parents may find that they must appeal at every stage, which can significantly delay a child receiving the provision it requires to meet need.
• Keep records of your contact with the local authority (a paper diary can prove quite useful for this) and don’t give up.
• You don’t know what you don’t know! The legislation around SEND provision creates an adversarial process that can leave parents feeling out of control of their child’s education. Never be afraid to ask for help – no question is a silly question, especially when it comes to your child’s education.

If you would like more in-depth specialist advice relating to your child’s special education needs, our education law experts are here to help. We have significant experience in all aspects of the SEND process and regularly challenge schools and local authorities that fail to provide the required special educational needs support.  We review the adequacy of EHCP plans and SEND funding decisions, where necessary taking appeals to the First Tier Tribunal.

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