Changes to the EHCP regime during Covid-19: a quick guide for parents and representatives

What are the New Regulations?

On 1 May 2020, the entitlements of children with SEND (and their parents) in relation to the Education, Health and Care (EHC) Plan process changed. The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘New Regulations’) came into force. They will expire on 25 September 2020 unless extended. The New Regulations amend four existing sets of Regulations including the Special Educational Needs and Disability Regulations 2014 (the ‘SEND Regulations’).

The New Regulations were also considered in an earlier post by Alexandra Littlewood, which may also be of interest to readers.

Accompanying guidance was published on 30 April 2020, entitled ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’ (the ‘New Guidance’). This guidance is non-statutory. Whilst not binding, there is an expectation that it be followed by LAs.

What changes have the New Regulations made?

The temporary changes introduced are to the timescales within which Local Authorities need to take steps within the EHCP process. The steps which LAs are required to take remain the same, and technically the time limits remain unchanged, but LAs are now given a reason (or, in some cases, an additional reason) why they may lawfully miss a deadline. Where is not practicable for the LA to meet certain requirements for “a reason relating to the incidence or transmission of coronavirus”, the LA need no longer comply with the time limit. This is called the “coronavirus exception” in Regulation 5 of the New Regulations. In relation to certain requirements, the LA is required instead to take the action “as soon as reasonably practicable”.

The following timescales have been amended so that now the LA need not comply “if it is impractical to do so because of a reason relating to the incidence or transmission of coronavirus”:

• • 6 weeks for an LA to notify a child’s parents that it has determined that it is not necessary to make special educational provision in accordance with an EHCP (Regulation 4(1) of the SEND Regulations, amended by Regulation 6 of the New Regulations)
  • 6 weeks for an LA to notify a child’s parents of a decision whether or not to conduct an EHC needs assessment (Regulation 5(1) of the SEND Regulations, amended by Regulation 7(b) of the New Regulations)
  • 16 weeks for an LA to notify a child’s parents of a decision not to secure an EHCP (Regulation 10(1) of the SEND Regulations, amended by Regulation 9(b) of the New Regulations)
  • 20 weeks for an LA to send a finalised EHCP to a child’s parents (Regulation 13(2) of the SEND Regulations, amended by Regulation 10 of the New Regulations)
  • 1 year in which an LA must review an EHCP, which is replaced by a requirement that the LA instead conduct a review as soon as reasonably practicable (section 44(1) of the Children and Families Act 2014, see now Regulation 11 of the New Regulations)
  • 8 weeks for an LA to amend a plan following a review (Regulation 22(3) of the SEND Regulations, amended by Regulation 12 of the New Regulations)

A full list of all the changes made by the New Regulations can be found in Annex A to the New Guidance.

The 15 days which parents must be given in order to make representations on a draft EHCP is not changed (Regulation 13 of the SEND Regulations).

Parents and advisors should note that the Secretary of State has been given the power to ‘pause’ the duty of LAs to conduct annual reviews of EHCPs (Sch 17 para 5 of the Coronavirus Act 2020), but this has not yet ben used, so annual reviews are still required at the moment.

What should parents expect?

The amendments do not give LAs a licence not to comply with legal deadlines for any reason they choose. Their reason for non-compliance must relate to Covid-19. Further, if subject to legal challenge, it is likely that an LA merely pointing to the existence of the Covid-19 pandemic will be insufficient to establish that failure to comply with a deadline was lawful. Rather, the LA would need to establish that the failure was specifically “because of a reason relating to the incidence or transmission of coronavirus” ie it seems necessary to be able to identify a specific “reason”.

Parents should be vigilant. Where it is suspected that the new leeway is not being used properly, parents may wish to seek legal advice.

The substantive entitlements of children with SEND remain unchanged. There has been no relaxation of the duty to consider new requests for assessments, so parents should continue to make such requests as before, where they have concerns.