Temporary changes to the law and EHC needs assessments and plans

On 1 May 2020, some temporary changes to the law around special educational needs and disabilities (SEND) and Education, Health and Care (EHC) plans were made. If your child has an EHC plan, or is being assessed for one, this is what you need to know.

The temporary changes to the law affected two areas:

  • The duty to secure special educational provision and health care provision in accordance with an EHC plan – this about making sure that a child gets the support that’s set out in their EHC plan. This legal change has now ended and the law has returned to what it was before coronavirus. 
  • The timescales for EHC needs assessments and plans – this change will stay in place until 25th September 2020. 

You can find out what these mean for parents, children and young people in the drop down sections below.

Changes to the law were made because of the coronavirus outbreak. Services and support for children and young people with SEND have had to change, nurseries, schools and colleges are physically closed, and some services are under strain. The changes to the law aim to try and find a balance between the rights of children and young people with SEND and the demands on local authority and health services to respond to their needs.

The changes to the law started on 1 May 2020 and can’t be applied to things that happened before that.

Some of the changes to the law may look complicated, or you may not be sure whether they apply for your child or not. If you’d like advice or help about your situation, contact us for more information. You can also find more information about the legal changes on the Devon County Council SEND webpages and the IPSEA website.

You can also read more about returning to school in September.

What are the changes to the timetables for EHC needs assessments and plans?

If your child is having an EHC needs assessment or has an EHC plan, the law about some the timescales for these processes has temporarily changed.
Usually there are clear and firm legal timescales by which various points in the EHC needs assessment and EHC plan processes need to happen. This includes 20 weeks for the whole needs assessment process and the 12-month EHC review process.
Where it is not practical to meet a time limit  because of problems brought about by coronavirus, the specific time limit will now not apply. But the process must still be completed as soon as reasonably practical.
The changes to the law are about the timing only. These are the main processes that are affected:
  • request for EHC needs assessment
  • the decision about whether to issue an EHC plan
  • preparing and completing an EHC plan
  • review of an EHC plan (annual review)
  • mediation processes
  • the process for a local authority to do a first review of review of how direct payments are being used from a personal budget that’s part of an EHC plan
  • the timing of actions that the local authority and health commissioning body must take when a tribunal makes non-binding recommendations about health and social care matters within an EHC plan
These are the main things to know.
  • Working together and good communication are still vital and it’s really important to keep in touch with the SEN 0-25 team staff and make sure your views and your child’s are shared and listened to.
  • Any changes made to timescales must be done on an individual basis – the local authority or health service can’t make blanket policies that apply to everyone.
  • Where there is a delay and timescales are changed the local authority and health bodies must finish their processes as soon as it is practical.
  • Other decisions, including those about the content of an EHC plan, must carry on being made within the usual legal framework.
  • The changes to the law about timescales apply until 25 September 2020.

Are there any changes to reviews the of an EHC plan (annual reviews)?

EHC plan reviews still need to be done and the local authority should follow the usual processes. But because of social distancing, and changes to the way schools and colleges are operating, reviews may need to be done in a different way. Having a review meeting, even if it’s a short virtual one, can help you and your child feel reassured that the plan is up to date and meeting your child’s needs.
If it’s not practical for the local authority to finish the review process within the usual time scale, then they must finish it as soon as it is reasonably practical. Throughout the review process it’s still really important for your child or young person to be involved as much as they are able and for their views to be shared and listened to.
If your child’s needs or circumstances have changed a lot, and therefore their EHC plan is likely to need to change, talk to your contact at the SEN 0-25 team. These reviews, as well as those for children in care, those in residential or schools and colleges or those in schools outside Devon are likely to be the priority for review.

Are there SEND laws that haven’t changed?

Although the law has temporarily changed around timescales and the support given in EHC plans, other areas of the law haven’t changed. These are two of the main areas where things stay the same.
  1. The duty on education settings to admit. This means that any nursery, school or college named on your child’s EHC plan must still admit them. If they are temporarily closed, then your child must be added to the school roll and treated in the same way as other children at that school.This means if your child needs to be in nursery, school or college the staff must work with you to make plans for that to happen. All children and young people with an EHC plan should be risk assessed to see whether they need to be in school or can have their needs met at home.
  2. The timescale for a nursery, school or college to respond to a proposal to name them in an EHC plan.When the local authority drafts an EHC plan, and agrees that one will be issued, it must contact the nurseries, schools or colleges that might be named on the plan. They must send them a copy of the draft EHC plan plus all the reports and ask them to see whether they can meet your child’s needs. They have 15 days to get back to the local authority with their answer.  This timescale has not changed.

What were the changes to the 'duty to secure provision'?

The ‘duty to secure special educational provision and health care provision in accordance with an EHC plan’ is about making sure that a child gets the support that’s set out in their EHC plan. Usually it’s the duty of local authorities and health services to set up or arrange the support your child gets and make sure it happens as it’s written in the plan.
The change in the law meant that local authorities and health services had a duty to use ‘reasonable endeavours’ to do that. The legal change was reviewed every month by the Secretary of State for Education. This change in the law ended on 1st August 2020. That means that from that date onwards the law returns to normal. 

What did ‘reasonable endeavours’ mean?

Schools and colleges, the local authority and health services still had to think about individual children and young people with an EHC plan, and what their needs and situations are.
For some children, the support that’s in their EHC plan could still be given. However, for many children this wasn’t the case and the support they had needed to be changed temporarily. Depending on what services were still available and in what form, children and young people may have been given different support from what they would usually get in school or college.
Whatever temporary changes were made to the support set out  in your child’s plan, a record should have been made and staff should have talked to you about what they wanted to do and why.
Changes to support should also have been regularly reviewed.

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Page published 14 August 2020 Reviewed regularly