Inclusion Now 56

Inclusion Now 56 – Legal Question

“My son Steve is in Year 6. I’ve been sent an NHS letter telling me he falls within the shielding group criteria for COVID-19, meaning he should not go out. Steve has an EHCP that includes speech, occupational and physiotherapy, and teaching assistance to help him take part in a full-time programme of learning activities, which can’t be done via on-line learning. Both the Local Authority and school are saying they can’t do anything as he’s in the shielding group and staff don’t want to put him and themselves at risk of contracting the virus. I’m worried Steve will receive no education until a vaccine becomes available, which could be up to 18 months – my son has a right to an education. What should I do?”

The Local Authority are ordinarily under an absolute duty to secure special educational provision and health care provision in accordance with an Education, Health and Care Plan (EHCP). In light of the Coronavirus Act 2020 Modification of section 42 of the Children and Families Act 2014 (England) Notice 2020, this duty has been relaxed to one of ‘reasonable endeavours.’

This means that any duty imposed on the Local Authority is to be treated as discharged if they have used reasonable efforts to put provision in place during the period specified in this notice.

This notice is in force until at least 1 July 2020. However, the Secretary of State may extend this further but as of 16 June (at the time of drafting), there has been no indication that this notice will be extended or otherwise. The Secretary of State for Education has been threatened with legal action over the notice but is reported to be defending the action.

Although this situation is subject to change given the fast moving nature of things, whilst this notice is in force, the Local Authority are only under a duty to ‘try’ and secure the provision in accordance with your son’s EHCP but there is nothing in law to say they must do so. As soon as the notice expires, the duty to secure provision in plan is more definite. However, whether or not the notice is in force, there is a duty on both the Local Authority and the school to ensure that children remain safe.

We do not know how long the shielding of vulnerable individuals will be considered necessary and nor do we know if and when a vaccine will be available to protect people against COVID. This means that the Local Authority and the school should be considering reasonable alternatives for your son whilst he is shielding. This may mean that it is necessary to deliver provision different (or in a different way) to what is specified in his plan but they should essentially try and get as close as possible whilst maintaining your son’s safety.

Examples of this may include the provision of resources to allow you to effectively home educate your son, ensuring that appropriate PPE is provided to therapists who may, at some point, be able to make direct contact with your son or for your son’s therapists to draft individual programmes and/or strategies for you to implement at home. Exactly what is appropriate is going to depend on your son’s specific needs and will be different for different children but it is important that local authorities and schools work together to establish what can be achieved safely whilst this situation continues.

If families find themselves in difficult situations like these then they can seek legal advice on their individual circumstances. It is important to remember that the law and the guidance is changing regularly and up to date advice on your specific circumstances will always be beneficial.

Lydia Neill

Lydia is a Paralegal in the Public Law Team at www.simpsonmillar.co.uk

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