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Planning for September

Schools are finally out for Summer!

For some of us that will mean a return to having children at home, others can down tools from home learning, and for some, it may be no change at all. Whatever your situation you may be wondering;

“What will September 2020 look like?”

If you are looking for definite answers to that one, I must disappoint you early on. None of us can predict the future and right now it is even more tough. Every school will be taking a slightly different approach, and every child is different.

What we can share with you is what SHOULD be taken into account by schools, when planning September 2020. We can dispel some myths and share the most recent news on the guidance and legal requirements for September 2020. So, if you are ready, we will dive straight in:

  • All children should be returning to school in September. There should be full provision in place.

  • Guidance says that TA support can be used to support changes in staffing, but not at the expense of children with SEND. Schools are expected to have all provisions in place and not to divert support elsewhere.

  • Minimise contact and social distancing where possible. Guidance acknowledges this may not always be possible with children with SEND and in this case emphasis on bubble groups instead. Provision should not be removed just because it cannot be done from a distance.

  • Those with care needs should continue to receive care as usual, with the use of PPE as appropriate.

  • The downgrading of the legal requirement to provide the provision in an EHCP is expected to cease, and all duties will be in place from August. This may change according to evidence on COVID-19, but that is the expectation at the time of writing. Therefore, children will be entitled to their full provision as set out in their plan.

  • Timescales for carrying out EHCP assessments, issuing plans, issuing amendments and time to comply after tribunal, have been relaxed. This is a Coronavirus exception and should only be for that reason. Steps should be completed when it is reasonably practicable. Regulations are in place until 25th September 2020 and it’s not known if they will be extended.

  • Government will consider local flexibility. It isn’t clear what this involves, but it may be that individual local authorities may not need to comply, but no decision has been made on this at the moment.

Do parents have to send children back?

  • Yes is the short answer.

  • The ‘shielding concept’ will no longer apply by September (at time of writing). In theory, they should return to school, there is clear guidance on how this will work safely even for those who need aerosol generating procedures whilst in school.

  • A very small groups of children may not have to attend school if this is in agreement with a medical professional, andthe usual law on school absence applies here. If you have an ‘objectively good reason’ you may be able to keep them at home, but there is often dispute about what is a good reason and what isn’t. A very small minority of children will fall into this category. If you believe you are one, seek further advice.

  • All should have full time education.

  • In some situations a wider discussion may need to be had between medical and education professionals about how that tranisition back to school is managed. This may mean some flexibility for children with SEND.

  • Usual attendance rules and fines will be in place from the first day back. If you think there may be a dispute, communicate effectively and quickly. Ask if there is any dispute about the absence. Much more effective to challenge at this stage before any further legal steps are taken against you for non-attendence. Get further advice and support.

Elective homeschooling

  • As usual a parent can choose to homeschool, but that will take the child off the school roll and comes with other responsibilities. However, a local authority has an obligation to the child to ensure they are safe and receiving an appropriate education.

  • Local authority can use the safeguarding process if they believe there is not a suitable education being provided at home.

Schools saying they can’t accommodate children due to lack of staff or no 1:1 support.

  • If they have an EHCP then there is an absolute duty to provide the support, so the school must do this.

  • If no EHCP is in place they should still be making reasonable adjustments, so they can remove support, but would need to justify it when looking at their resources.

Reasonable endeavours forms / reduction in provision agreements.

  • In September there is no longer a ‘reasonable endeavours’ duty. They should provide what is in the plan. Before September there may be a place for these forms or agreements, but they should not be in force from September 2020.

Risk Assessments

  • For each child the LA, school, and parents should have completed risk assessments previously. In September the risk assessment process cannot be given as a reason for the child not to attend school. All the guidance says the child must be in school.

What provision should be in place?

  • All provisions as set out in their EHCP should be in place on return to school, unless the government take further action to change this.

Remote education

  • Must be in place where children cannot attend a setting because of health advice or public health advice. It may not be an obligation if you are keeping them at home otherwise.

Remedies

  • Informal resolution

  • Complaints procedures through schools, LA’s, Local Government Ombudsman (now open after being closed during the pandemic) - Often take a long time to resolve.

  • OFSTED

  • Department of Education

  • Education and Skills funding Agency - Academies

  • Judicial Review - Legal process to challenge decision, consider the timescales for this as it is quite short.

  • If you need help get advice. You can use our Community Support Service or contact your local SENDIAS team.

Exclusion - Governments ‘zero tolerance for social distancing’ approach.

  • The guidance has recognised children with SEND may have more difficulty in maintaining social distancing. Exclusion must be consistent of relevant legislation. If the reason for the exclusion is social distancing failures, but the reason they can’t socially distance successfully is due to their disability or SEND, then that would be considered discriminatory.

IMPORTANT NOTE

All this information is gathered from legitimate sources and training provided by legal experts. However, it is not written by legally qualified staff and should be used as an overview guide only. If you have any specific concerns you should seek personalised professional legal advice. This does not constitute legal advice.

For the full guidance follow this links.

Relevant Guidance: reopening

DfE Guidance “Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)”-updated on 6 July 2020

DfE Guidance for full opening: schools –published on 2 July 2020

DfE Guidance for full opening: special schools and other specialist settings –2 July 2020

Joint Ministerial Letter to children and young people with SEND and their parents dated 21 July 2020

Relevant Guidance: attendance

DFE Disapplication notices: school attendance legislation changes –current notice only in force until 31 July 2020

DfE checklist for school leaders to support full opening: behaviour and attendance

DfE guidance for parents on elective home education –April 2019

SEND Webinar – Returning to School in September - 39 Essex Chambers