Changes to EHC plans and tribunals
The Coronavirus Act 2020 grants the Government flexibility through a range of emergency powers. These powers include measures which impact Education Health and Care (EHC) plans.
This includes:
- Requests for EHC needs assessments
- Decisions about whether to issue plans
- Preparing and issuing plans
- Mediation
- The process for a local authority reviewing for the first time the making and use of direct payments from personal budgets under an EHC plan
- The timing of actions on a local authority or health commissioning body following non-binding recommendations of a first-tier tribunal decision related to an EHC plan
Government guidance is clear that local authorities should not apply a one-size-fits-all policy to EHC plans and decision-making. Local authorities must continue to carry out needs assessments and cannot change an EHC plan just on the basis on the Coronavirus pandemic. Local authorities must continue to take into account the views, wishes and feeling of a child, young person, and their family.
Annual reviews
At present, there have been no notices issued by the Secretary of State cancelling or modifying the duty to review ECH plans annually. However, due to circumstances, annual reviews may take a different form, for example by phone or virtual meeting, but they must still take place.
New regulations have provided more flexibility about the timescales during which annual reviews are conducted, provided the reason for the delay is related to the incidence or transmission of coronavirus.
The legal time scale for local authorities’ involvement in EHC plans has been removed and now a local authority must complete these tasks ‘as soon as reasonably possible’. Local authorities have been granted more flexibility around:
- Providing advice and information in advance of the annual review meeting
- Making a decision following the annual review meeting as to whether to keep the EHC plan the same, amend it or cease it
- Finalising the amendments to an EHC plan after the draft has been sent to the parents or young person
New Education, Health and Care Plans
Local authorities must still consider new requests for EHC needs assessments and the correct legal test must be applied by the local authority when making this decision. Local authorities have been granted more flexibility around:
- Advising a parent or young person of the decision as to whether or not an EHC needs assessment will be carried out
- Advising a parent or young person if it has been decided that an EHC plan is not necessary
- Issuing a final EHC plan
However as before, a local authority must communicate decisions and send EHC plans as soon as reasonably possible. When a parent or young person receives a draft EHC plan, parents or the young person must be given at least 15 days to give their views on the draft plan. There is no change to the law here. However, there may be some flexibility with this deadline, depending on each individual, their family, and how Coronavirus may affect the timing of their response.
The special educational provision written into the final plan should be in line with the usual legal requirements for EHC plans and cannot be limited because of the coronavirus. However how provisions in the EHC plan are delivered during the coronavirus pandemic may change, for example weekly Occupational Therapy sessions may be delivered remotely.
Changes to mediation, tribunal and appeals
You always have the right to dispute a local authority decision regarding an EHC plan. The local authority is required to advise parents and young people of their right to seek mediation or to appeal a local authority decision by taking it to a First-tier Tribunal (the “SEND tribunal”). There are some small changes in relation to time scales for mediation, but the process is still being conducted between parents, local authorities and health bodies.
Currently, tribunals are conducting hearings remotely by paper, telephone and video, where technology permits it. There may be an option to use a court venue if there is no access to a stable telephone or internet connection, but parents and young people would need to check this with the Tribunal administration team. Alternatively, it may be appropriate to agree that the appeal go ahead on the paperwork rather than hold a full hearing.
We know that there is a change to the Tribunal’s timetable. New appeals are now going to be listed on a 20-week timetable. This means, from the time the appeal is submitted, it will take 20 weeks for a hearing date. For transfers where a pupil is moving from one stage of education to another (such as moving from primary to secondary school) the timetable will be 12-14 weeks.