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What does the emergency Coronavirus bill mean for disabled children?

Friday 20th March 2020


The emergency Coronavirus Bill was published on 19 March 2020 by the government.

The aim of the Bill is to help the government deal with the current coronavirus pandemic. The Bill is not yet law and will need to pass through Parliament so there will be a very short opportunity to influence it, which Contact and our partners will try to do.

We've had a look at it and - with the important caveats that this is hot off the press; it's a long piece of legislation and we are not legal professionals - here is our initial assessment as it related to disabled children and their families.

On education

The Bill provides for certain statutory provisions to be disapplied.  Specifically on SEND legislation (the Children and Families Act 2014) in England. It enables to Secretary of State to make orders:

  • Disapplying the duty on institutions named in an Education, Health and Care (EHC) plan to admit (so a child with an EHC plan may have to move school)
  • Disapplying the duties on reviews and re-assessments.
  • Modifying the duties on local authorities and the health service to secure (respectively) the special education and health provision specified in an EHC plan (changing it to a requirement to use reasonable endeavours to deliver the provision).

But other duties - including to undertake EHC needs assessments and make plans remain in place: the Bill includes no provision to alter those.

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.

It also provides for the suspension of statutory provisions regarding school attendance - this would mean no fines or prosecutions - and for the Secretary of State to be able to modify various statutory provisions.

The most important ones for us (in addition to the above) are

  • Dty to provide free travel arrangements - also becomes reasonable endeavours.
  • Duty to provide alternative education for sick or excluded children - also reasonable endeavours.

On social care

The Bill would mean that local authorities would not have to comply with the Chronically Sick and Disabled Persons Act 1970 and 1989 Children Act provisions relating to transition to adult services (and the mirroring sections in the Care Act are also disapplied), but other provisions, including young carer and parent carer assessments, remain.

On safeguarding

The Bill 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.

In conclusion

But overall, on SEND, the Bill is probably 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 are removed and the duty to meet needs comes against the high bar of it being necessary to avoid a breach of the adult's rights under the Human Rights Convention.

Other views

Steve Broach, a specialist barrister, has produced a video for special needs jungle highlighting the very real concerns with the Coronavirus Bill published yesterday. It is important, however, 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 regulations may be amended to allow local authorities more time to carry out EHC processes.

Related information

You might find it helpful to read these two resources from WellChild and Carers UK:

https://www.carersuk.org/help-and-advice/health/looking-after-your-health/coronavirus-covid-19

https://www.wellchild.org.uk/2020/03/11/covid-19-information-for-parents-and-carers/