The Coronavirus Act
The Coronavirus Act 2020 is a temporary law the government has said will help it deal with the current public health crisis due to the coronavirus pandemic. It came into force on Wednesday 25 March 2020.
Below we've explained some of the implications of the Act in relation to disabled children and their families.
Education - England
The law regarding EHC plans has changed in two key ways:
- The government has issued a notice under the Coronavirus Act 2020 confirming that local authorities and health commissioning bodies (e.g. Clinical Commissioning Groups) must now use their reasonable endeavours to secure the provision set out within a child or young person's EHC plan. This means that local authorities and health bodies must consider, for each child and young person with an EHC plan, what they need to provide during the period of the notice. This may result in a child or young person's provision being different from that which is set out in their EHC plan. For example, they may offer support virtually rather than face to face. This legal change will be in force from 1st to 31st May 2020 and will be reviewed monthly.
- Secondly, the usual timescales in regulations for various EHC processes have been replaced by requirements on local authorities, health care professionals and others to act as soon as reasonably practicable (or in line with any other timing requirement in the regulations being amended). This means, for example that local authorities will not have to keep to the statutory timescales for EHC processes if this is difficult or impossible, as long as the reason relates to coronavirus. These changes will be in force from 1st May to 25th September 2020 and will be kept under review.
Detailed guidance has been published alongside these temporary changes.
Most SEND law, and key elements of the EHC process have not changed. For example: local authorities must still consider requests for EHC needs assessments, gather all the required information for EHC needs assessments, issue EHC plans where required, and hold annual reviews.
On other education legislation, it provides for the temporary closure of schools (or particular schools); and also for them to be required to stay open over holidays or to take particular groups of children.
The most important points for families with disabled children in addition to the above are:
Duty to provide free travel arrangements - also becomes reasonable endeavours.
Duty to provide alternative education for sick or excluded children - also reasonable endeavours.
Local authorities' duties under the Children's Act 1989 remain in place. These include the duties to assess and arrange provision to support disabled children's needs while they are under 18, and the needs of their carers.
But the government has eased the obligations under the Care Act 2014, Chronically Sick and Disabled Persons Act 1970 and 1989 Children Act around young people's transition to adult services.
What this means for families is that the local authority does not have to carry out a detailed assessment of what a young person's and their carer's care and support needs might be when they turn 18.
Usually the law requires any children's services a child receives before their 18th birthday to continue after their 18th birthday until the adult social care takes over - or a decision is made that a person is not entitled to care and support as an adult. These duties on local authorities have also been temporarily eased.
In addition, the Coronavirus Act eases obligations around adult social care. Local authorities:
- Do not have to carry out a financial assessment of family income - but may still charge retrospectively for services they provide to you and your child.
- Do not have to prepare or review care and support plans. They will still be expected to carry out person-centred care planning which provides sufficient information to all concerned, particularly those providing care and support, like parents and siblings, at short notice.
- Have had the duty (they must do this by law) to meet eligible care and support needs, or the support needs of a carer, reduced to a power (they can do this if they think it is needed). Local Authorities will still be expected to take all reasonable steps to continue to meet needs as now. But the government says that these changes have been introduced so that local authorities can prioritise the most urgent needs in the event that they are unable to do so.
They still need to respond to requests for care and support, consider the needs and wishes of people needing care and their family and carers, and make an assessment of what care needs to be provided.
These changes are temporary. The government has said that all assessment and reviews that are delayed and not completed will be followed up after the crisis is over.
If you are currently going through the transition process with your child, make sure you keep all information about what the local authority has done so far in a safe place. You can carry on getting any evidence that you need to support you and your family if this is possible.
Please see our pages on moving into adult services. Charity Preparing for adulthood also has lots of resources you may find helpful at this time. You can also call our free helpline on 0808 808 3555 if you have any questions.
The Act also allows for changes to the Mental Health Act, which could weaken the safeguarding of children and young people who display challenging behaviour or who are autistic and are a cause for concern.
Contact's view of the Coronavirus Act
Our Head of Policy Una Summerson says:
"Overall, for disabled children, the Act is less destructive to the legal framework and protections than we might have feared; and certainly compared with its impact on the Care Act, where a whole swathe of duties on local authorities around assessment of disabled adults are removed and the duty to meet needs has been set very high.
"However, local authorities are still expected to do as much as they can to comply with their duties, and the changes do not remove the duty of care they have towards disabled adults at risk of serious harm or neglect.
"It is important that parents and local authorities are aware that the majority of the law on SEND remains untouched - including the duties to assess education, health and care needs and, where necessary, to make EHC Plans. However, given the current crisis local authorities may need more time to carry out EHC processes.