12th May 2020

Response to steps taken to relieve councils of certain duties to children with special educational needs and disabilities (SEND)

10 June 2020 Update:

The Government has now issued a new notice which extends the measures through June. After publication of this response and note, the Government updated its guidance to reflect the fact that the timescales under which LAs and CCGs must comply with binding orders from the First-tier Tribunal have been eased.

We have made some small edits to our note to clarify certain passages.

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The Children’s Commissioner has serious concerns about the regulations that came into effect on 1 May, downgrading the duties of councils towards children with Education, Health and Care Plans (EHCPs).

I fully acknowledge that local authorities and CCGs are working under extremely challenging conditions and that clearly not all provision for children with SEND can be delivered in the usual way at the moment. I also welcome the fact that communication about these changes has been clearer than changes to the social care regulations, and that the accompanying guidance emphasises the importance of working directly with families to determine the best way forward.

However, I am of the view that the downgrading of key duties towards children with SEND is disproportionate to the situation. The SEND system was already under considerable strain before Covid-19 and I am worried that these changes could result in local services being stripped back further.

During the passage of the Coronavirus Bill, amendments were put forward which would have seen the duty to use “reasonable endeavours” replaced with a duty to “take all practicable steps” – a higher set of expectations. I would prefer to see the Government adopt this higher expectation.

The Government, LAs and CCGs should set out their reasons and evidence for implementing or making use of the changes. The Government should also publish as soon as possible an assessment of the impact of these changes on children’s rights.

I welcomed the announcement of the SEND review last year as an opportunity to address the root causes of the problems in the SEND system, including lack of resourcing. While the pandemic has of course meant that this work has been disrupted, I hope that the review can be completed as soon as possible, despite the current crisis.

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