School re-opening and SEND provision
Mass Asymptomatic Testing and SEND
The “rapid testing programme” continues to be rolled out.
From 8 March, secondary schools and FE colleges have offered testing on-site.
After their first 3 tests at school/college, secondary school pupils and FE students are recommended to test themselves at home twice a week. Small on-site testing facilities can remain at mainstream settings for those who are unable to home test.
Students of special schools and colleges who are unable to have an onsite test can test at home and should be provided with hom
testing kits without having to attend their setting first. Full scale on-site testing can remain at specialist settings beyond the initial return to school testing phase.
Members of the pupil’s household and/or support bubble can also get a twice weekly test and all primary and secondary school staff should be tested twice a week.
All testing is voluntary and therefore requires parental consent (or the consent of the young person if they are over 18). Admittance is not dependent on participation in the testing programme.
For some children and young people with SEND adjustments will be required.
Although the testing guidance for specialist settings is not expressed as being intended for students with SEND attending other settings, IPSEA’s view was that some of the adjustments proposed for special schools were also helpful for students with SEND attending mainstream settings. The DfE website now refers to this guidance under the heading “Specialist settings and pupils and other students with SEND” – so it seems that it is taking a similar view.
In particular, the guidance suggests:
• Discussing and agreeing strategies with children, young people and their families to reduce anxiety and put in place appropriate reasonable adjustments;
• Using risk assessments to ascertain which students cannot self-swab and/or will require extra support or reasonable adjustments;
• Using a trusted adult from the settings to support the self-swab or whether, in exceptional circumstances, a parent attends to support the student self-swab or to swab the student themselves – this is expressed as being a possible reasonable adjustment for a disabled student. Appropriate instructions and supervision would be required;
• Using suitably qualified staff to conduct the swabs where students are not able to do so themselves;
• Allowing a variation on the swabbing technique if required - a nose swab from both nostrils or a throat swab alone may suffice.
The setting that your child or young person attends will be able to give you more information on their programme and how the needs of the individual student will be supported.
NHS Test and Trace introduced a new type of LFD test called Orient Gene. These are for use only in testing sites at schools and colleges and involve a double nasal swab only (not a throat sample). Schools have been provided with information about this and the guidance for testing in specialist settings has been updated to reflect this.
Following an announcement by Public Health England on 20 January, the “daily contact testing programme” (testing pupils who are identified as a contact of someone with a positive COVID test) was paused. Isolation at home (with online learning) for ten days will be required as before.
Reducing transmission and use of face coverings
What should early years settings, schools and colleges do to reduce the risk of transmission?
The guidance on restricting attendance states that educational settings should use a ‘hierarchy of controls’ to reduce spread, including:
• ensuring pupils and staff stick to the guidance on self-isolation if they or a member of their family displays symptoms;
• cleaning hands more often than usual;
• ensuring good respiratory hygiene (‘catch it, bin it, kill it’);
• cleaning frequently touched surfaces often;
• minimising contact and mixing by altering, as much as possible, the environment (such as classroom layout) and timetables (such as staggered break times).
Settings were required to plan in line with the guidance but each setting will be implementing strategies based on their individual circumstances. Settings have been advised (by unions and legal advisors) to update their health and safety assessments in light of the current COVID situation. Note that these are not the assessments used in the first lockdown in relation to individual children, but the risk assessments schools undertake with regards to site, staff and pupil safety in general. If you have any questions about what specific steps your child or young person’s setting is taking, you should speak with the setting.
The guidance on safe working in education, childcare and children’s social care settings, including the use of personal protective equipment (PPE) sets out the strategy for infection prevention and control, including the specific circumstances in which PPE should be used. (This refers to medical-grade PPE; for more information on face coverings see below.) Additional PPE is only required where:
• the child or young person has intimate care needs which involve the use of PPE;
• aerosol generating procedures are being performed; or
• the child or young person is displaying symptoms of coronavirus and a distance of 2 metres cannot be maintained.
If a setting requires but is unable to obtain PPE the guidance states they should contact their LA for assistance.
The guidance also sets out specific steps to be taken to support children with complex medical needs (including tracheostomies) and those who might require personal contact or may spit.
Where a pupil routinely attends more than one setting part-time (a dual placement), they can attend both settings which should work together to minimise any risks. The guidance states that the pupil should not be isolated to manage these risks.
Settings should have planned for how children and young people who do require more complex, close contact support will return to education but if you have any questions about those plans, contact the setting to discuss.
The main guidance on face coverings in education was updated again in May 2021.
In summary, this applies to pupils in Y7 or above. The advice is that pupils should wear face coverings when
• moving around indoors in areas where social distancing is difficult to maintain
• in classrooms and during activities unless social distancing can be maintained. This does not apply in situations where wearing a face covering would impact on the ability to take part in exercise or strenuous activity, for example in PE lessons.
However, the requirement for face coverings will change from 17 May 2021.
From this point, face coverings will no longer be recommended for pupils anywhere in school. Face coverings will only be recommended for staff and visitors when in communal areas where they are unable to maintain social distance. Face coverings will not be required for education and training in community settings (e.g. extra-curricular clubs) where in a private room or a building hired for the sole use of pupils and staff.
Face coverings will still be required on public or school transport.
There may be temporary reintroduction of face coverings in response to local outbreaks.
The guidance remains clear that “No pupil or student should be denied education on the grounds that they are not wearing a face covering.”
There are exemptions from wearing a face covering. The guidance uses the example of pupils who cannot put on, wear or remove a face covering because of a physical or mental illness or impairment, or disability, or if staff are speaking to or providing assistance to someone who relies on lip reading, clear sound or facial expression to communicate.
PHE has produced a face coverings exemption toolkit which might be of use to parents and carers and can be found here.
Any policy about face coverings must be developed in accordance with the setting’s duties under Equality Act 2010.
Please note that while children in primary school do not need to wear a face covering, Head Teachers have discretion to ask staff/visitors to wear them in indoor areas where social distancing is not possible (excluding classrooms).
If you or your child or young person has a concern or question about how face coverings are going to be required in a settings, then you should speak with the setting.
Is school attendance now compulsory?
Education settings have now reopened and are subject to new guidance on how to manage risk and reduce transmission of COVID-19. In addition to schools, this guidance also applies 16-19 academies and special post-16 settings. This has recently been amended to reflect changes to guidance about shielding, face coverings and educational day visits (which can resume from 12 April 2021).
It’s important to note that this is not statutory guidance – but we expect all schools, colleges and other places of education will use the guidance to plan how they will deliver education.
The guidance for parents explains that all pupils should now be attending school unless they are;
- self-isolating because they:
- have symptoms or have had a positive test result
- live with someone who has symptoms or has tested positive and are a household contact
- are a close contact of someone who has coronavirus (COVID-19)
- they are one of the very small number of pupils under paediatric or other specialist care and have been advised by their GP or clinician not to attend.
See below information on shielding if your child is clinically extremely vulnerable.
From 8 March, school attendance is mandatory and parents’ duties under s.7 Education Act 1996 apply. This means that if your child is of compulsory school age and on the roll of a school, regular attendance is expected and action may be taken against you for unauthorised absences.
Additional catch-up provision due to missed education
What provision will school/college make to help a child/young person with SEND catch up?
This is going to be something to discuss with the school. We expect most settings to review their students following their return to school to try to identify gaps in learning and barriers to learning arising from their prolonged periods of absence.
To assist in supporting the return to school and catch up provision, grants are available for state-funded primary, secondary and special schools in the 2020-21 academic year.
The government previously stated that, with regards to children with “complex needs” it:
“strongly encourage[s] settings to spend this funding on catch up support to address their individual needs, including speech and language therapy, travel training, education psychologist time, or other small group and individual interventions. This could be either direct (i.e. the specialist spending time with the pupil) or indirect (i.e. the specialist spending time with school staff to design an intervention that the teacher/teaching assistant then delivers regularly)”
“Recovery premium” funding for schools has recently been announced.
Extra funding has also been provided to the 16 to 19 tuition fund to support small group tuition for 16 -19 year old students where learning has been disrupted.
What about repeating a year?
In law, education out of year (or repeating a year) is capable of being special educational provision ("SEP"). IPSEA has always recommended that it is specified in the EHC plan to ensure enforceability. Where a child or young person’s SEND requires such SEP, then the law says this must be provided.
Remember that considerations for children and young people with SEND include whether they may need more time to complete their studies. Many children and young people with SEND (particularly those undertaking post 16 education and training) may have missed a substantial proportion of their course and be unable to “catch up” what has been missed in 6-12 weeks.
In all cases, SEP is driven by what is required based on the evidence.
In all cases, the SEP required must be specified and quantified in the child/young person’s EHC plan
In all cases an EHC plan must be maintained as long as it is necessary to secure the child or young person’s SEP.
What about extending provision in a school setting for those aged 19 and over?
Where a LA decides that a young person would be best served by remaining in a school setting after they have turned 19 years of age, it can apply for a relaxation of the normal rules under the established Education and Skills Funding Agency process. Approval must be given by the Secretary of State to allow a young person aged 19 or over to remain at a school.
The government states that this may be necessary in “exceptional circumstances”. However, IPSEA has been advised previously that the process can be relatively straightforward and LAs may want to consider whether such application is necessary in light of the COVID-19 crisis and individual student’s circumstances.
EHC needs assessments and EHC plans
If my child has an EHC plan, does the LA still have a legal duty to deliver that provision?
Last year, the Coronavirus Act 2020 temporarily amended the absolute duty to make the provision in an EHC plan (section 42 of the Children and Families Act 2014) to a ‘reasonable endeavours’ duty. This meant that during the specified period of notices made under the Act (1 May to 31 July 2020) LAs needed to do whatever they reasonably could to put provision in place, but if they could not do so they would not necessarily be breaching the law.
Since 31 July 2020, however, the duties under s.42 and s.43 Children and Families Act 2014 have come back into full force. This means that LA’s have an absolute duty to secure the special educational provision specified in an EHC plan and settings named in EHC plans that are not wholly independent must admit the child/young person.
The guidance for specialist settings states that if it becomes difficult to secure provision that LAs, settings and health providers should:
"work with families to co-produce alternative arrangements for delivering provision. These decisions should be considered on a case-by-case basis which takes account of the needs of, and circumstances specific to, the child or young person, avoiding a ‘one size fits all’ approach."
The guidance, however, reiterates that there is no intention to downgrade the statutory duty of LAs under s.42 Children & Families Act 2014 at this time. It does say that the situation will kept under review.
However, if you have a complaint about the way the LA fulfilled its duties during the period the notices were in effect, the Local Government and Social Care Ombudsman (“LGSCO”) may be able to investigate – please see the section below on making a complaint or challenging a decision.
Do the LA still need to carry out EHC needs assessments?
IPSEA is aware of a number of LAs who indicated that they will not be carrying out any EHC needs assessments. Legally, this is not an option the government did not suspend the duty to consider requests for assessment or to conduct them. The guidance on EHC needs assessments and plans during the COVID-19 crisis made clear that requests for assessment were to continue to be considered.
Decisions about whether or not to assess continue to be made solely on the legal test. If a LA refuses to assess, then it must send out the statutory notification (along with notice of appeal rights and deadlines) to the parents or young person.
In IPSEA’s view it would not be acceptable for an LA to refuse to assess due to the fact the child or young person has been out of school. Time out of school may in fact make it more, rather than less, likely that a child or young person may require support through an EHC plan.
However, the deadlines which apply to LAs when considering EHC needs assessment requests were relaxed from 1 May 2020 to 24 September 2020. Where it was not reasonably practicable or impractical for an LA or other body to meet certain deadlines “for a reason relating to the incidence or transmission of coronavirus (COVID-19)”, they instead had to complete that step as soon as it was practicable for them to do so.
These changes are included in the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the “Amendment Regulations”), which amend the timescales in the SEN and Disability Regulations 2014. The changes do not apply to deadlines that fell before 1 May 2021 or after 25 September 2020. The Amendment Regulations can only be relied on for the period they were in force.
The guidance has been updated to reflect the fact that from 25 September 2020 the relaxations no longer apply and “any case that is in progress after that date to which the coronavirus exception has previously been applied will become subject to the usual statutory timescales (such as 6 weeks for needs assessments, 6 weeks for the provision of advice or information and 20 weeks for issue of a final plan)”.
The guidance makes clear that LAs, health commissioning bodies and others with a role in the process need to consider how best to progress the matter in a timely way from 25 September 2020. It emphasises the necessity of discussing this with parents and carers affected.
If practical barriers are raised by professionals asked to provide advice and information during an EHC needs assessments, the relevant professional body may have published guidance on how they can operate during the Coronavirus pandemic. For example, the British Psychological Society has developed specific Coronavirus resources for psychologists.
Will annual reviews still need to be carried out?
As above, the Amendment Regulations mean that annual reviews still need to be carried out but the usual deadlines were relaxed until 25 September 2020, provided the reason for the delay is “relating to the incidence or transmission of coronavirus (COVID-19)”. The guidance on EHC needs assessments and plans during the COVID-19 crisis provides more information on this.
From 25 September 2020, the relaxations no longer apply and LAs must conduct annual reviews in the usual way. You can find more information about annual reviews on our website, here.
IPSEA is aware that for many children and young people with SEND, there will have been changes to their needs in the period in which education was disrupted. In addition, the different ways re-opening has been undertaken will present different challenges for children and young people with SEND. If you feel there is an urgent need to amend the provision or placement in the child or young person’s EHC plan, speak to the school and the LA about this to see what review mechanisms could be put in place. You will find more information on our website, here.
Furthermore, LAs are required to conduct and conclude annual reviews in anticipation of phase transfer by the usual statutory deadlines. The guidance for specialist settings makes clear how important it is that annual reviews continue and the statutory deadlines are observed. It suggests that it may be appropriate to use electronic means to circulate information or to hold virtual meetings as long as parents/carers, children and young people are still able to participate in the process in a meaningful way.