Inclusion Now 57

Legal Question

“My son Martin’s mainstream school is in a locked down area. The school has told us that all the children in his year group will be sent home until further notice. All lessons will now be delivered on-line. My son uses adaptive computer technology with assisted technology at school. The school have said we are unable to take my son’s computer technology home. The Head of IT said that she is unable to set it up in our home after a Covid-19 risk assessment. We do not have the computer equipment at home, which means that Martin will not be able to access the school curriculum without access to adaptive and assisted technology. What are mine and my son’s rights?”

A new law has come into force recently that places a legal duty on schools to provide online education for children of compulsory school age, if they are unable to attend school due to Covid-19. The law is temporary and doesn’t provide specific details on what they must do, but guidance has been published by the Department for Education on this. This confirms that for many children with SEND that teaching will need to be adapted. We would of course expect this to be the case, as there is duty on Schools under the Equality Act 2010 to make reasonable adjustments. If they do not make the required reasonable adjustments you could have grounds to a claim for disability discrimination which can be pursued in the First-tier Tribunal (Special Educational Need and Disability).

Exactly what reasonable adjustments should be made will depend on your son’s specific needs and will be different for different children but it is important that the school should work together with you to establish what adjustments should be made any issues with this.  If there are any issues such as it not being possible for staff to set up the computer because a risk assessment has determined it is not safe to, I would recommend that you consider if the risk assessment can be challenged. To do this I recommend checking if it is specific to your son and a visit to your house as if it is not, you could argue it is not an adequate risk assessment.

In addition to the duty on the School to provide remote education and make reasonable adjustments, the Local Authority may also be under a legal duty to provide support if your son is in receipt of an Education, Health and Care Plan (EHCP). This is because he is still entitled to the special educational provision and health care provision detailed in the plan whilst he is not permitted to attend school. This means that if Section F of your son’s EHCP contains the provision for an adaptive computer with assisted technology and he is not receiving this provision whilst at home then you may be able to challenge this through a Judicial Review.  This is because, he should still be receiving the special educational provision that he is entitled to despite being unable to attend school due to the Covid restrictions. If this is not possible following a risk assessment with the school then technically this does not exempt the Local Authority from their legal duty. However, a Local Authority may try arguing that it does.

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 up to date advice on your specific circumstances will always be beneficial. Please also take into consideration that the legislation and guidance in relation to Covid-19 is frequently changing and this could impact on any advice given.

By Lydia Neill and Beth Holbrook.

Lydia Neill is a Paralegal in the Public Law Team at Simpson Millar.
Beth Holbrook is an Education Law solicitor based in the Lancaster office of Simpson Millar.