SEN round up: 2nd May 2020

You know when you get a paper cut?  You know you’ve done it and you know it’ll hurt, but it’s only about 20 minutes later it really hits and its agony rather than a twinge?  Well, that was SEN this week…

We knew the Secretary of State for Education had the power to issue the notice as granted in the Coronavirus Bill, but we perhaps didn’t expect him to issue it or accept the reality of its implications.  (Or maybe that was just me.)

So, this week’s round-up has plenty of changes from the DfE but also an application of the emergency legislation.  I have to give my thanks this week to Sinclair’s Solicitors whose well timed webinar answered some of the questions racing through my head.

Legal changes

Coronavirus act & changes to section 42 CAFA

This is the guidance released on Thursday evening and which came into effect on the 1st May and is applicable until 31st May although can be renewed.


This particular notice is around section F of the EHCP: the provisions.  Up until this point, it has been an absolute duty to ensure the provisions specified are in place.  Now this is reduced to reasonable endeavours.

This may mean the LA has longer than usual to try and secure the provision or to put some provisions on hold.  It DOES NOT mean they can make ‘no endeavours’ or ‘not enough endeavours’.  Speech and Language therapy was used as an example by Sinclair’s solicitors.  It would be reasonable to secure remote provision of speech and language provision rather than a carte blanche we cannot provide that.  The exception would be where online speech and language therapy was not accessible by the child perhaps because of other special needs or lack of facilities.

The LA would have to show that it has made reasonable endeavours to secure the provisions and not just ‘shut down’ should anyone decide to take this to a legal challenge.


The second significant change is around the timescales for the EHC processes.  Instead of having to follow the timescales that were set out in the CAFA, these have now been modified requiring the body to ‘discharge the duty as soon as is reasonably practicable’.  This part of the notice is applicable until 25th September (but can be ended sooner). 

A LA cannot refuse to undertake new assessments or issue plans and if challenged by the courts they will have to show that they have made reasonable efforts with their steps taken.  It will be more difficult to push the LA to do things in a timely fashion but it is not an open ended deadline.  Sadly, pre-action protocols which can be used to prod the LA into action when they are dragging their feet, are not applicable here since there is no ‘deadline’ to issue the protocol against. 

Section 43 and annual reviews

With regards to Annual reviews there has been no relaxation of duties around this.  These are still required (at the moment) to take place.

Schools are also required to still admit students with EHCPs.

Coronavirus act and changes to section 444 of the Education Act

Possibly of slightly less interest, but just as relevant a notice was also issued to disapply section 444 of the Education Act.  In a nutshell: you can’t fine for non-attendance at school.

This notice is effective from 1st May to 31st May and may be renewed.

There’s a video here with a further explanation from Hayley Mason (SENLegal):

DfE Updates

Overarching guidance for educational settings

Actions for schools during the coronavirus outbreak

28 April 2020: Updated guidance on bank holidays, Early Years Foundation Stage, recruitment and workforce.

School attendance: guidance for schools

30 April 2020: Updated to reflect changes made under the Coronavirus Act 2020 concerning school attendance.

Due to the current coronavirus (COVID-19) outbreak, schools will remain closed until further notice, except for the children of critical workers, and vulnerable children, who are encouraged to attend where it is appropriate for them to do so. While as many schools as possible should try to stay open for eligible pupils, this will not be possible for all settings. Local authority should oversee arrangements so that pupils are able to access provision elsewhere.

To reflect this, under the Coronavirus Act 2020, the law has been relaxed, so that the parent of a child of compulsory school age is not guilty of an offence on account of the child’s failure to attend regularly at the school at which the child is registered (section 444 of the Education Act 1996). This means that parents will not be penalised if their child does not attend school.

There is also a modification of the meaning of ‘pupil’ (section 3 of the Education Act 1996) in the context of pupil registration (section 434 of the Education Act 1996). This means that vulnerable children, and the children of critical workers temporarily attending another school when their school has closed because of coronavirus (COVID-19), should not be registered as pupils. They should return to their own school once it reopens.

Children who attend a school on a temporary basis because of coronavirus (COVID-19) will still be pupils for all purposes other than registration. For example, they will still be pupils for the purposes of the school’s SEN, safeguarding and school medical duties. The school will be able to apply its normal behaviour policy to such children and – as is the case with its registered pupils – it cannot charge these children for their education.

COVID-19 infection prevention and control – No changes

Supporting vulnerable children and young people

Changes to the law on education, health ad care needs assessments and plans due to coronavirus

30 April 2020: New Publication

Guidance on temporary changes to education, health and care legislation during the coronavirus (COVID-19) outbreak

Guidance on specific subjects

Providing free schools meals during the coronavirus outbreak

30 April 2020: Added Aldi and McColl’s to the list of supermarkets taking part in the national voucher scheme.

Coronavirus: cancellation of GCSEs, AS and A levels in 2020

1 May 2020: Updated ‘Coronavirus (COVID-19): cancellation of GCSEs, AS and A levels in 2020’ to reflect Ofqual consultation closing.

Disapplication notice: school attendance legislation changes

30 April 2020: New Publication

Temporarily disapplies offences relating to the failure of parents to secure regular attendance at school of a registered pupil. Parents can be sure that they will not be prosecuted or receive a criminal conviction by not sending their children to school.

Disapplication notice: school inspection legislation changes

30 April 2020: New Publication

Temporary disapplication of:

  • Ofsted’s duty to inspect state-funded schools within prescribed intervals and to provide inspection reports
  • the duty on a local authority or, in the case of an academy, the proprietor, to prepare a statement of action within a prescribed period following an Ofsted inspection which finds that the school requires special measures or significant improvement
  • the duty on the governing bodies of voluntary or foundation schools which have been designated as having a religious character, and the proprietors of academies designated as having a religious character, to arrange inspections covering collective worship at the school and denominational education provided by the school within prescribed intervals and for the person conducting such an inspection to inspect and produce a report within prescribed periods

Modification notice: school registration legislation changes

30 April 2020: New Publication

This notice is relevant to all schools.

It modifies pupil registration:

  • so a person is not to be treated as a pupil at a school merely because education is provided for them at the school on a temporary basis
  • so the child is not to be registered as a pupil at the host school

Modification notice: EHC plans legislation changes

30th April 2020: New Publication

Modifies the duty on local authorities to secure special educational provision and on health commissioning bodies to arrange health provision in accordance with EHC plans, so that they can discharge this by using their ‘reasonable endeavours’.

Finance and Administration

Use of free early education entitlements funding during the coronavirus outbreak

28th April: New Publication

This guidance includes information on:

  • the government’s position on continued DSG funding during the coronavirus outbreak
  • the flexible funding arrangements available to local authorities to secure sufficient free childcare places
  • how the coronavirus job retention scheme (CJRS) interacts with the new flexible funding arrangements


Induction for new qualified teachers during the coronavirus outbreak

1 May 2020: Updated to reflect the new regulations. Absences related to the coronavirus outbreak will not trigger an automatic extension of the induction.

Anything else?

Edukey’s webinar series continues to be incredibly popular with over 2600 attendees each week!

The first two full videos can be found on their website:

This week continues with presentations about effective CPD and Edukey launches the first of 4 Wellbeing Webinars.

SENDCOSolutions (SENsible SENCO) has produced additional information to support her contribution to the webinars.

Mental Health, Wellbeing, Bereavement and Behaviour

Online Learning and Assistive Technology

SEN Transition