The Coronavirus Bill: SEN Update

The Coronavirus Bill provides for various changes to the EHCP regime and duties on local authorities. Schedule 17 creates a power for the Secretary of State issue a notice for up to a month at a time:

• Modifying the duty to secure provision specified in an EHCP (s. 42 Children and Families Act 2014) to a duty to use reasonable endeavours;
• Disapplying the duty to admit under s. 43 CFA 2014;
• Disapplying s. 44(1) CFA 2014 (duty to undertake annual reviews of EHCPs).

Despite guidance currently available from HMG, it is important to note that the Bill does not provide for these measures to apply automatically – they will not unless and until the Secretary of State issues a notice (which he must take reasonable steps to bring to the attention of those likely to be affect). Until that time, the duties on local education authorities remain unchanged. At time of writing the Bill is still being debated in the Lords, so further amendments are also possible.

There are also changes to Tribunal procedure and practice. Guidance issued on Thursday confirmed that the First-Tier Tribunal (HESC) will move to fully digital working. In practice this means:

• No face-to-face hearings, initially for three weeks as of 23 March 2020
• All cases to be dealt with on papers, by telephone or video-link (arrangements to be confirmed by the Tribunal two days beforehand)

Consideration therefore needs to be given to practical matters:

• If the hearing is by video-link, test your internet connection before the hearing – and NB that the software is not compatible with Firefox so you will need to use an alternative browser
• If you are set down for a video hearing but are without video capability it will be possible to join by telephone.
• Consider your background, and the fact that hearings take place in private and so you will need to be in a place without interruptions.
• If you have a telephone hearing, consider the strength of reception if using a mobile.
• Witnesses should be available to join throughout the time allotted for the hearing, but if there are multiple witnesses then judges may set times for witnesses to join at the start of the hearing.