SEND within a Covid-19 Pandemic
- Parental responsibility to ensure regular attendance at school
- Educating a child outside school and off-rolling
- Schools and social distancing
- Local authority’s obligations to arrange special education provision and EHCp timeframes
Parental obligation to ensure regular attendance at school
- Under Section 444(1) of the Education Act 1996, a parent commits an offence if they fail to ensure their child’s regular attendance at a school where the child is registered.
- Under Section 444(1A), a parent commits a further offence where the circumstances in Section 444(1) apply and the parent knows that the child fails to attend regularly at the school and fails to cause the child to attend.
- It is a defence to this offence if a parent can prove that they had a reasonable justification for their failure to cause their child to attend regularly at school.
- Under Section 444(2A), it is a defence if the parent proves that if at the time the child was prevented from attending by reason of sickness or any unavoidable cause.
- There are also defences if the local authority is under a legal obligation to arrange home to school transport and fails to do so, or where the child is of no fixed abode and their parent is engaged in a trade or business of such a nature that requires them to travel and the child has attended school, as a registered pupil, as regularly as the nature of the trade or business permits.
- Furthermore, if the child has reached the age of 6, they must have made at least 200 attendances during the last 12 months.
- Potential options open to local authorities:
- Parenting orders,
- Education attendance orders
Securing education otherwise than at school
- Section 7 of the Education Act 1996 provides as follows:
“The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable –
(a) to his age, ability and aptitude, and
(b) to any special educational needs he may have, either by regular attendance at school or otherwise”
- This allows parents of children of compulsory school age to educate their children otherwise than at school. This includes allowing parents to off-roll their children.
- However, it is very important for parents to realise that by off-rolling their child, they are taking on full responsibility for ensuring their child receives an efficient full time education. This includes meeting any special educational needs that that child has. The parents is responsible for arranging and funding this.
Schools and social distancing
- On 28 August 2020, for England, the government set out updated guidance for full opening of schools. This guidance must be taken into account by schools and covers their operations which include transport, attendance, school work force, safeguarding, catering, estates, educational visits, school uniform, wraparound provision, curriculum expectations, pupil wellbeing and support, behaviour expectations and catchup support.
- The guidance accepts that a small number of pupils will still be unable to attend in line with public health advice because they are self-isolating and have had symptoms or a positive test result themselves, or because they are a close contact of someone who has coronavirus.
- The small number of pupils who will remain on the shielded patient list can return to school, as can those who have family members who are shielding.
- The guidance anticipates that where a pupil is unable to attend school because they are complying with clinical or public health advice, schools are expected to be able to immediately offer them access to remote education. Schools should monitor engagement with this activity.
- Where pupils with significant risk factors are concerned, it is recommended that schools discuss parental concerns and provide reassurance of the measures that would be put in place to reduce the risk in school.
Local authority’s obligations to arrange special education provision
- Under Section 42 of the Children and Families Act 2014 (in England) and Section 324 of the Education Act 1996 (in Wales), a local authority maintaining an EHC plan or Statement of Special Educational Needs is under a non-delegable duty to arrange all of the special education provision contained within section F or part 3 of the EHC plan or Statement of Special Educational Needs respectively.
- This is now a duty and not simply a requirement to make reasonable endeavours (as had temporarily been the case earlier in the year).
- It is important to note that the legal method of enforcing this statutory obligation is through judicial review in the High Court. Granting a remedy in judicial review proceedings is always at the discretion of the High Court (or Upper Tribunal) respectively.
- Many parents will be aware that there were easements to a local authority’s obligation to comply with statutory timeframes through the EHC plan/Statement process. This related to, inter alia, the length of time local authorities had to make decisions as to whether they would conduct statutory assessment, the length of time they had to conduct such statutory assessments and then decide whether or not to write an EHC plan/Statement as well as conducting annual reviews.
- NB – The legislation has always allowed an extension to these timeframes in specified limited circumstances.
- From 25 September 2020, those easements no longer apply.
Kevin McManamon – [email protected]