Department for Education relaxes statutory timescales in four sets of regulations relating to SEN system

Various statutory deadlines in four sets of regulations dealing with special educational needs and disabilities, principally those that relate to EHC [Education, Health and Care] needs assessment and plan processes, will be modified with effect from tomorrow (1 May).

The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 were laid before Parliament by the Secretary of State for Education today (30 April).

The Explanatory Memorandum, which can be viewed here, says that relaxation of deadlines would allow those bodies involved in EHC needs assessment and plan processes to “deploy their resources more flexibly to respond to the coronavirus (COVID-19) outbreak and focus their remaining resources on those whose need is greatest”.

The regulations affected are:

• The Special Educational Needs and Disability Regulations 2014 and The Special Educational Needs and Disability (Detained Persons) Regulations 2015: These Regulations set out how requests are made for EHC [Education, Health and Care] needs assessments, how local authorities must make decisions over whether to conduct an assessment or issue a plan, how to keep those plans under review and the processes for making appeals against decisions. Many of these processes have statutory time limits. The Special Educational Needs and Disability Regulations 2014 also require local authorities to publish responses annually to comments from those with SEND and their parents on their published Local Offer of SEND services.
• The Special Educational Needs (Personal Budgets) Regulations 2014: These Regulations set out a requirement for local authorities within three months of direct payments being made from a Personal Budget that is part of an EHC plan to review the making and use of those direct payments.
• The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017: These Regulations require local authorities and health commissioning bodies to take various actions within a statutory time period when the First-tier Tribunal (SEND) makes non-binding recommendations in respect of certain types of health and social care matters within an EHC plan. (This is part of a National Trial that is in progress.) The Tribunal is responsible for handling appeals against local authority decisions regarding EHC needs assessments and plans.

On the relaxation of deadlines, the Explanatory Memorandum says COVID-19 has affected the ability of local authorities (SEND and social care services), health commissioning bodies and others (such as those who provide advice and information for EHC needs assessments) to meet them.

“In these circumstances, rather than having to complete a process within a specific timescale (for example, providing advice and information for an EHC assessment within 6 weeks), the bodies subject to the duty will be subject to different requirements as set out in the relevant regulations (such as ‘as soon as is reasonably practicable’) over when to complete the process,” it adds.

“This will allow local authorities, health bodies and the other bodies subject to duties over the timing of their actions to have more flexibility in deciding how their priorities should change as a result of the outbreak. It will not always be in the public interest for health professionals, for example, to prioritise their input to an EHC plan if clinical work were a more immediate need during the emergency. The instrument allows those decisions to be made without the driver of the specific statutory deadlines that are designed for more normal circumstances.”

The Explanatory Memorandum stresses that, “crucially”, the duties on these bodies are not lifted entirely: “they must complete the processes required of them to a modified timescale”.

The document also says that the changes are a response to calls from families of those with SEND for greater certainty as to what they can reasonably expect over the EHC needs assessment and plan processes during the outbreak.

It stresses that it is timescales that are being changed, not the substance of the processes.

Once the instrument ceases to be in force (due on 25 September 2020), the usual timing requirements will resume.

The DfE has said it will publish non-statutory guidance on the changes.