Children and young people with EHCPs, and their families, have had to navigate unprecedented and difficult challenges through the pandemic. Here Lydia Dunford, Education Solicitor at Boyes Turner, reflects on some of these, and looks ahead at what SEND provision partners need to do to as part of their COVID-19 recovery efforts.
Lydia will be speaking at our training day on developing and delivering EHCPs. You can register your interest here to attend the next training day.
Whilst COVID-19 and the impact of three national lockdowns has affected all of us in some way, arguably the group in our society who are at risk of being most affected, as we begin to consider a return to ‘normal life’, are children and young people with Special Educational Needs and Disabilities (SEND). A number of these pupils have been out of school for a great proportion of the past year. Even pupils with Education, Health and Care Plans (EHCPs), a legal document that provides for additional support in both mainstream and specialist provisions, have had their learning disrupted. Many are currently being taught via online resources at home, or receiving a lack of therapeutic or other provision they are entitled to.
The changes pupils with EHCPs and their families have had to face over the past 12 months are nothing short of substantial, and need to be recognised ahead of the next steps for these pupils’ education:
- At the outset of COVID from March 2020, and during the first national lockdown, there were parental concerns that local authorities were not providing full EHCP special educational provision under Section F of the Plan. Under the law in force at the time (section 42 of The Children and Families Act 2014) this provision was still required to be delivered, even though pupils were unable to attend school.
- The Coronavirus Act 2020 then passed as legislation on 25 March 2020. Following notices issued by the Secretary of State for May, June and July 2020 respectively, local authorities’ legal duties to provide the special educational support within an EHCP during this time was downgraded from an ‘absolute duty’ to one of ‘reasonable endeavours’. Parents and children therefore had the uncertainty of what, if any, provision would be delivered during this time; all the while schools remain closed for pupils. Even when schools were able to re-admit some pupils within reduced class ‘bubbles’ from June 2020, local authorities still had no absolute legal requirement to fully deliver the Section F provision within EHCPs. This changed when the notices issued by the Secretary of State expired on 31 July 2020. Realistically, however, this meant pupils with EHCPs were unable to receive their full special educational provision until the new term from September 2020, and even then this did not always happen.
- The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 were also in force from 1 May to 25 September 2020, and resulted in relaxed timeframes for other parts of the EHCP process to be completed ‘as soon as reasonably practicable’, again causing uncertainty and delays for parents and children going through the EHCP process.
- Under the current national lockdown, in place from 5 January 2021, pupils with EHCPs are invited to continue attending school (with schools otherwise closed for pupils who weren’t classed as vulnerable, including those with EHCPs), but many of these pupils are unable to do so in practice. There are a number of reasons for this: from school risk assessments; to some children or family members needing to shield or; school staff or therapist shortages because of COVID. Even pupils with EHCPs who are able to continue at school face a reduction or change in their special educational provision that is legally required.
Following the government’s announcement on the 22 February 2021 that all schools are to open for pupils as of 8 March 2021, who are expected to attend ‘as normal’, it is those with EHCPs not already in school that will undoubtedly need a clear and managed transition back into the school environment. Updated government guidance has also been issued for both mainstream and specialist settings. The former recognises there are possibilities of vulnerable children and young people being reluctant and/or anxious to return to school. Additional catch-up funding is provided for settings that require it. A multi-disciplinary effort from parents, schools, therapists and the local authority will also be necessary.
There is awareness in the February 2021 guidance that pupils with SEND may have experienced a disruption in their provision during lockdown. Section F EHCP provisions, however, continue to be legally binding on local authorities and schools to deliver, and if this is not happening then parents have a legal right to challenge this. This is verified in the specialist school guidance. The guidance for mainstream schools, however, appears to allow some flexibility in schools providing for this support “on a case-by-case basis…avoiding a ‘one size fits all’ approach”. The legal standpoint remains as it has done throughout lockdown – that Section F provision is required as set out in the EHCP. If school therapists cannot deliver this provision through the school’s resources, then it falls to the local authority to meet the shortfall and, if necessary, recruit therapists privately. The February 2021 specialist school guidance provides information on visiting therapists providing therapies where reasonably necessary i.e. to deliver Section F EHCP provision.
Other steps schools and professionals should be considering, in the run up to pupils returning on 8 March 2021 are, but not limited to:
- Pupils with EHCPs having a phased transition back into the school environment, if possible before all pupils return to minimise impact – this may involve remote transition.
- An early review of EHCPs to assess if a pupil’s needs have changed during lockdown/time out of school, particularly if therapy provision and other support has not been consistently delivered.
- A review if up to date professional assessments are needed.
Above all else, schools and professionals need to work collaboratively with parents in respect of each pupil, rather than apply a ‘one size fits all’ method, as pupils with EHCPs have individual needs, and therefore need an individual approach to their education, including returning to the school environment.
The past year has proved unprecedented, and the impact of COVID is going to take time to settle. What is needed now, and in the coming months, is compassion, understanding and time for pupils with SEND to adapt to yet more changes in their learning and educational support. With it likely that PPE, regular COVID testing and social distancing measures will be required in some schools for the foreseeable future, pupils with SEND may struggle to understand why this is happening and experience anxieties as a result.
It is no surprise that pupils’ mental health, in particular those with SEND, has been negatively impacted on because of COVID and national lockdowns. The findings from the NHS’s Mental Health Survey published in October 2020 found 40% of children and young people were experiencing anxiety because of lockdown, and as many as one in six children were experiencing a possible mental health disorder. Pupils’ anxieties centred not only on the safety and wellbeing of their friends and family, but also on the confusion surrounding exam grading during the end of the 2019/2020 academic year. January 2021 Government guidance sets out that grades will now be awarded based on teachers’ assessments at the standard the pupil is performing, but arguably the push for academic progress cannot, and should not, come at the expense of pupils’ mental well-being, particularly those with SEND.
Professionals working with pupils with SEND need to support their mental health to help them re-establish:
- a routine of going to school with COVID precautions and measures in place;
- learning with their peers as opposed to at home and via remote provisions, and, crucially;
- feeling safe and their needs fully understood.
This is what the partners developing and delivering EHCP provision need to remember and focus their efforts on. Without positive mental health, pupils will struggle to not only access learning but also engage with therapy and support provision, both of which are required to aid development of a pupil’s ability to learn and make progress. Surely such progress cannot be measured and assessed, for example, by formal examinations, until those pupils have both the full support their EHCPs dictate and emphasis on support for their mental health and well-being that needs to continue for the foreseeable future.
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