COVID-19: Important information and FAQs

News - 25 March 2020

UPDATED 25/3/20 12:37

nasen does not provide legal advice and depending up your specific set of circumstances, we advise that you seek legal advice where necessary. Any advice that we do provide is simply the interpretation of the nasen team and it is provided to help you make your own decisions rather than making such decisions for you.
 
 
In recent days, nasen has been receiving numerous questions about how school closures and the consequences of COVID-19 more broadly will impact on children and young people with SEND.

Based on the latest information available, nasen has sought to provide responses to these questions and to share them with the wider community. However, this is a rapidly changing situation and some of the responses below may quickly become out-of-date, so please do advise us if you are aware of more up-to-date information, so we can update these responses.

Similarly, if you have further questions, please email them to us: welcome@nasen.org.uk

On Sunday 22nd March, Chief Executive of nasen, Professor Adam Boddison sent a letter of advice to the Director of Children's Services regarding the decision taken as to whether children with SEND who attend specialist settings should go to school during this time. This is now available to read. 

Letter to Director of Children's Services

 

On Tuesday 24th March, we received an open letter from Parliamentary Under-Secretary of State for Children and Families directed to children and young people with SEND, their parents, families and others who support them regarding the coronavirus.

Minister Ford's open letter to the SEND sector.pdf

 

I understand that as a school we are required to make best endeavours to meet the provision in Section F of the EHCP. Does this mean we have to provide 1:1 support remotely to all children with EHC plans who at are home?

The Government have now passed the Coronavirus Bill which relaxed some of the legal duties around EHC plans and this includes changing the requirement on LAs to maintain the precise provision and allows for schools to now use their ‘reasonable endeavours’ (rather than ‘best endeavours’) to support these children. Read the full guidance document. This guidance says:

As part of the government’s emergency powers, we will modify the statutory duties on local authorities to maintain the precise provision in EHC plans and will expect educational settings and local authorities to use their reasonable endeavours to support these children and their families

Where a local authority is unable to put in place stated provision, they will need to use their reasonable endeavours to do this, but won’t be penalised for failing to meet the existing duty in the 2014 Act.

Just as you would normally want to work collaboratively with your families, it’s important to continue to try to listen, to offer support and to find solutions in the best interests of each child. Where teachers are aiming to provide work which is suitable for each child, this is a strong message about still meeting the child’s individual needs in a reasonable way given the unprecedented circumstances and potentially reduced staffing capacity of each school.

As an education professional will I be required to change which school or pupils I work with?

The Government has indicated that it that some staff will need to be relocated to work in other schools over the coming period as staffing and attendance patterns change, including into special schools.

It will be important to brief all new staff on the policies, practices and equipment within the school to meet the needs of pupils with SEND, as well as to provide clear and up to date information about individual children. At times this is likely to require providing training and supervising tasks, for example when supporting a child with medical needs, which will need to be factored into resource plans.

In this context communication between school leaders, professionals, families and the Local Authority will be key to ensure that any such staffing changes are implemented in a safe manner.

Can a child with an EHC plan be refused access to school during the period of closure, if they can safely remain at home?

A common misunderstanding is that children with EHC plans have an ‘entitlement to access school’ during the period of closure. The practical reality is somewhat more nuanced than this. Pupils with EHC plans are able to access childcare at school, but should only be doing so if:

a) risk assessment suggests they would be safer in school, or

b) they are the children of key workers, and it is not possible for them to be kept at home.

It is worth noting that the provision available from schools during the period of closure is primarily focused on childcare rather than education. This childcare facility should not be used for any child who could safely stay at home, regardless of whether they have an EHC plan or not. Indeed, we would expect that most families would not want to increase the level of risk to their child by sending them into school.  

In relation to refusing access to school, if it is the view of the Headteacher that having a particular child in school significantly increases the risk to them or others (staff or pupils), and there is a reasonable alternative (such as staying at home), then it seems appropriate for schools to take the necessary action to keep children safe.

Further information on school closures is available here.

 

As a SENCO, I have been told to risk assess children with an EHC plan. How do I do that?

With the general principle being that children, including those with EHCPs, should be at home if it is safe for them to do so, the Government guidance on any risk assessment required, is that it takes into account:

  • the potential health risks to the individual from COVID-19, bearing in mind any underlying health conditions. This must be on an individual basis with advice from an appropriate health professional where required
  • the risk to the individual if some or all elements of their EHC plan cannot be delivered at all, and the risk if they cannot be delivered in the normal manner or in the usual setting
  • the ability of the individual’s parents or home to ensure their health and care needs can be met safely
  • the potential impact to the individual’s wellbeing of changes to routine or the way in which provision is delivered.

Conducting this risk assessment would mean a joint discussion between school, the child’s parents and the LA and would always be focused around the best interests of the child, with the primary focus being on their safety at this time.

Risk assessment is not fixed; it is inevitably impacted by any changes in circumstances, such as staffing or environment and so will require ongoing consideration.

Children with SEND may often do better in exams than teacher assessments suggest. If teacher assessment is used to inform the allocation of grades, how will we ensure children with SEND are treated fairly?

The government has confirmed that exams will not go ahead in May and June and they have suggested that Ofqual will put in place a process to determine exam grades based on teacher assessment and a range of other data and evidence, such as performance in mock exams, non-exam assessment and prior attainment. We know that the government has been working closely with both UCAS and Ofqual and that the intention is for all students who need grades to have them. We also understand that students will be offered ‘choices’, which may include deferral or the opportunity to take exams later in the year. The government has produced some advice on their website

Do we have to keep children with SEND in school during the closure period because they are classed as ‘vulnerable’ pupils?

The general principle is that children should be at home if it is safe for them to do so. Whilst schools are required to be open for vulnerable children, it is not a ‘requirement’ that all children and young people with Education, Health and Care plans attend school during the period of closure.

Section 1.10 of the government guidance for families is clear that decisions should be made locally based on risk assessments of health and safeguarding. The guidance is now clear that some children will be safer at school (or in their usual educational setting) whilst others will be safer at home. Schools, LAs and colleges are advised to make this decision on a case-by-case basis.

For some children (for example those with SEMH or with autism), the significant change of routine or setting may mean that it is more appropriate for them to be at home than in school. Again, these decisions should be made by those who know the children best and are well placed to assess the competing risks.

If a child has to attend a different school/setting during the closure period, what arrangements will be made for transport?

The government is making plans (in partnership with LAs) for alternative transport arrangements for children to attend the best educational setting for them if they are attending school (section 1.7 of the government guidance for families). We read this as being the arrangements will be made and funded as required.

In a special school where there may be pupils with significant medical needs or with complex SEND, effective provision is not possible if adhering to the government’s guidelines. Are staff and pupils safe to operate in these circumstances?

The closest analogies here are hospitals and GP surgeries. In hospitals, steps have been taken to reduce the risks, but some risks remain as there is sometimes no other way to provide key services. In GP surgeries, many appointments are now being delivered online or using the telephone. Ultimately, the level of risk must be assessed for all concerned and decisions made on that basis. There may not be any risk-free option. Boards of Governors may choose to close a school if they believe that is the safest option for staff and pupils. However, this may change if legislation changes.

Does the emergency legislation remove protections for children with SEND?

The emergency legislation (Coronavirus Bill) will ‘relax’ the Children and Families Act in relation to ‘named schools’ on Education, Health and Care plans (EHCP), but in general the legal protections around the nature and level of provision remain. 

Those delivering EHCP provision will be required to use their reasonable endeavours to do so. Meeting the letter of existing EHCPs may be difficult in the current context, however those involved in meeting the needs of pupils with EHCPs in their settings should maintain the spirit of individual EHCPs to the greatest extent practicable in these uniquely challenging circumstances. 

Schedule 16 of the bill would give DfE powers to change the legal protection in relation to the nature and level of provision delivered via an EHCP Plan (Section 42, Children and Families Act 2014) on a rolling monthly basis. The bill gives DfE the power to disapply the requirement for local authorities to review the plan at least annually under Section 44(1) Children and Families Act 2014. 

Disabled children remain protected by the Equality Act and Public Sector Equality Duty. 

Are all staff working in schools ‘key workers’?

The full list of ‘key workers’ as determined by government can be found here. For schools, the list of key workers includes teaching staff and any specialist education professionals required for schools to remain open and operational. We understand this to be interpreted broadly and to include support staff, therapeutic staff  and any other required operational staff.

Is there any advice about completing annual reviews during school closure?

In theory, nothing has changed in terms of the requirement for annual reviews to be undertaken. Depending upon the availability of families and the various professionals, it may be possible for annual reviews to go ahead using online meeting technology. Pragmatically, it may make sense for all parties involved to agree a revised timeline for the annual review.

It is also worth noting that the statutory requirements around ‘requests to assess’ including the 20-week turn-around time remain in place.

Some children and young people with SEND may not be able to communicate they are experiencing symptoms of the virus? How can staff stay safe and do the right thing for children in these circumstances?

Staff should be aware of the visible symptoms of Covid-19 and should follow the government guidance in relation to hygiene and, if required, self-isolation. Providing services in these circumstances may depend on the willingness of staff to come to work. As leaders, we can reduce the risk as much as possible, but we cannot eliminate the risk altogether. Ultimately, it is about balancing competing risks to make decisions about whether it is safer for children (and therefore staff) to be at school together or at home with their families in self-isolation.

A list of Government gidance about COVID-19, relating to children and young people with SEND can be found by visiting the following pages on the Government website:

Supporting vulnerable children

Guidance for schools and other educational settings

Early years and childcare closures