The DfE has published a notice under the Coronavirus Act 2020 as well as amending regulations and guidance which make some changes to the special educational needs and disability (SEND) framework arising from the Children & Families Act 2014 and the SEND Regulations 2014.
Please note: the information contained in this legal update is correct as of the original date of publication
The DfE has published a notice under the Coronavirus Act 2020 as well as amending regulations and guidance which make some changes to the SEND framework arising from the Children & Families Act 2014 and the SEND Regulations 2014. The changes broadly reflect the previous indications for change given by the DfE over the past few weeks and will impact on local authorities, health bodies and parents of children, or young people, with SEND.
The Secretary of State’s notice is set out here.
Section 42 of the 2014 Act places an absolute duty on local authorities to secure the special educational provision in an EHCP and on health commissioning bodies to secure healthcare provision in an EHCP. This is an absolute duty for these bodies and, in the case of local authorities, had been linked to the need to ensure sufficient funding was provided to ensure the specified provision could be provided by the relevant school or other institution.
The notice, which is in force initially until the end of May 2020, replaces that absolute duty with a duty to make reasonable endeavours to secure the relevant provision. This does not mean that local authorities or health commissioning bodies can step back from making provision available during this period. The accompanying DfE guidance here, makes it clear that both bodies must consider the individual needs of the child/young person and decide what provision they can reasonably make in the current circumstances. The DfE guidance suggests that:
This process of reviewing provision will have resource implications for local authorities and health commissioning bodies. It will be important to look at how these decisions are made and communicated in situations where many SEND Teams or health authority staff will be working from home. There will need to be some form of virtual decision making and moderation to ensure a consistent approach is maintained that meets the needs of the child and young person as well as reflecting the reality of practical provision during the Coronavirus outbreak.
Given that it is possible that some children or young people with EHCPs may still be attending a school, communication between local authority, health commissioning body and school will be vitally important. Where services/provision may no longer be available to the school, it may be necessary for the school and local authority to revisit the SEND risk assessments that should be in place to determine whether a place can remain open at the school for the child/young person during the lockdown period.
The regulations here and the detailed list of changes are set out here.
These changes disapply timescales, mainly found in the SEND Regulations 2014, for certain aspects of the processes leading to the assessment or making of an EHCP. The amending regulations operate where it is impractical or not reasonably practicable for the local authority or another body to comply with a timescale in the original 2014 regulations for a reason relating to Covid-19. In such cases, the local authority, or other body, must undertake the task as soon as reasonably practicable.
The changes permitted under the 2020 regulations only apply to the timescales for complying with the duty. The changes do not remove the requirement to comply with the duty.
The areas which are potentially subject to relaxed timescales are:
Clearly, these will have implications across the sector. It may reduce immediate burdens on local authorities, health bodies and other agencies involved in EHC needs assessments, decisions over EHCPs and annual reviews. However, there may be consequential impacts on parents and/or schools awaiting decisions on EHC needs assessments and EHCPs which are required to inform appropriate provision for children and young people. Again, communication between all parties will be key to ensuring that the process continues to work and that decisions are made (and effectively communicated) within reasonable timescales.
The DfE guidance does indicate some areas are not changing and these are important to note:
Browne Jacobson’s Education Team has extensive experience of advising on SEND matters, including tribunals, and is able to support you with any concerns or queries arising from these changes. Should you wish to have a further discussion, please contact Richard Freeth or Sophie Jackson.
There’s been little evidence of interventions or financial management reviews this year and it appears the Education and Skills Funding Agency (ESFA) has re-focussed on financial delivery. It’s also telling that there were no discernible changes to the reporting of financial irregularities in the Academies Trust Handbook 2022.
The Children’s Commissioner, Rachel De Souza, has recently published a report “Beyond the labels: a SEND system which works for every child, every time”, which she intends to sit alongside the DfE’s SEND Review (2019) and SEND Green Paper (2022) and which she hopes will put children’s voices at the heart of the government’s review of SEND system.
The Equality and Human Rights Commission (EHCR) recently issued new, non-statutory guidance regarding the wearing of natural or protective hairstyles, specifically in reference to their representation in uniform, behaviour or standalone appearance policies.
There’s greater opportunity than ever for parents, carers and guardians to voice any concerns they have relating to their child’s education and for their concerns to be heard and to be taken seriously. While most staff in schools and academies are conscious of their legal duties relating to complaints management, many are struggling to cope with such a significant increase in the volume of complaints they must manage.
This guidance has been prepared to support academy trusts (Trusts) who want to hold a fully virtual Annual General Meeting (AGM) or a hybrid AGM, as we know that Trusts may want to be prepared for future disruption as well as having a general interest in holding more meetings virtually. The guidance also applies to other meetings of the Members (known as General Meetings).
We’re pleased to collaborate with Lloyds Bank, who recently asked us and audit and risk specialists Crowe UK to offer guidance that academy trusts would find helpful when considering setting up a trading subsidiary.
The DfE has published new guidance and opened the application process for window two of the Trust Capacity Fund (TCaF) for 2022/2023, with a fund of £86m in trust capacity funding focused particularly on education investment areas.
The Independent Inquiry into Child Sexual Abuse was established in March 2015. We now have its report. As you would expect with such a broad scope, the report is long and makes a number of far-reaching recommendations. In this article, Dai Durbridge highlights seven of the 20 recommendations, sets out how they could impact on schools and suggests what steps to take now.
Browne Jacobson’s education team has been named as winner of the ‘Legal Advisors to Education Institutions’ category at the Education Investor Awards 2022 for a record sixth time.
Since the new Suspensions and Exclusions Statutory Guidance was published, we have received a lot of questions about the use of managed moves. For the first time, the Statutory Guidance does explain what a managed move is, but in relatively broad terms and does not cover the mechanics of how a managed move should operate.
Over 3000 young people from across the UK and Ireland took part in a virtual legal careers insight event, aimed at making the legal profession more diverse.
Holly Quirk, an associate barrister in Browne Jacobson’s Manchester office, was awarded the Legal Professional of the Year Award at this year’s Manchester Young Talent Awards.
The risk of assault against staff is, sadly, something that all schools need to consider carefully. Here one legal expert explains what they can do to protect staff and ensure they fulfil their duty of care.
Browne Jacobson’s education team has again been confirmed as a national powerhouse after securing five Tier 1 rankings relating to Education in the latest edition of Legal 500 and maintaining a Band 1 UK-wide ranking for Education in Chambers & Partners UK 2023.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
In this article we set out the criteria, expectations and support schools should consider if notified they fall within this new category.
The words “Grammar schools” are once again being whispered in government and the question of whether the creation of new grammar schools will finally be implemented as a central focus to DFE policy has re-surfaced.
As a result of a recent Charity Commission legal action, the former trustee of a Welsh charity was ordered to pay over £117,000 to Wrexham charities which support cancer patients.
Academy trusts no longer need to seek consent for contractual indemnities within the ‘normal course of business’. What do trusts need to consider?
In this article we set out the most common issues we encounter, along with guidance on assessing and mitigating the risk from assaults.
In this article we set out some of the support that's available to schools in a bid to reduce the overhead that complaints management generates.
As we start the Autumn term, the first part of the process for changing school admission arrangements can begin.
On 21 September 2022, we had the pleasure of hosting a Whitehall & Industry Group (WIG) lunchtime briefing, delivered by the Director General for the DfE’s Strategy Group, Julia Kinniburgh.
Law firm Browne Jacobson and the University of Nottingham are launching a ground-breaking two and a half year Knowledge Transfer Partnership which aims to develop and embed long-lasting equality, diversity and inclusion (EDI) principles and learnings into the firm’s practices and processes, amongst its key client-bases and the national legal sector.
In an academic environment, there can be pressures to publish, particularly where funding is dependent upon research and reputation. Whilst there can be competition between Higher Education establishments to be the first to publish, there can also be internal conflicts over authorship rights where several individuals have contributed to the work.
The Health and Safety Executive (HSE) have announced they will be carrying out a programme of inspections to primary and secondary school establishments from September 2022. The inspections will assess how schools are managing the risks from asbestos and meeting the Duty to Manage requirements, set out in Regulation 4 of the Control of Asbestos Regulations 2012.
In July 2022, the Supreme Court handed down its long-awaited Judgement in the case of Harpur Trust v Brazel relating to the correct calculation of statutory holiday pay for part year workers. This decision has implications for all part year workers on contracts which subsist all year round, whether their hours are normal or irregular.
Universities and colleges are not immune from deception by unscrupulous bad actors. The extent to which educational institutions can manage and control risk not only depends on financial management and internal controls, but also the robustness of security and processes which can be exploited from outside the organisation.
The new set of Legal 500 directory rankings have been published and we are proud to once again be recognised as one of the country’s leading firms advising the Education sector.
Browne Jacobson has been ranked as a Top Tier law firm in 25 key practice areas in Legal 500 UK 2023, the independent directory of comparative law firm performance. The firm also continues to underpin its status as one of the leading law firms in the East Midlands region with 16 Tier 1 rankings.
Since the UK left the EU and are now able to move away from the EU data protection regime, the UK government have implemented a national data strategy with the aim of reducing the burden on organisations but maintaining a high data protection standard.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
The law around disability discrimination against pupils is not straightforward – but the reputational risk, let alone costs, of falling foul of the law are huge, so it’s worth upskilling staff whenever possible, as these two lawyers outline.
On 20 July 2022, the Supreme Court issued its long-awaited judgment in the case of Harpur Trust v Brazel, upholding the decision of the Court of Appeal. For those of you familiar with this case, you will know that it concerns the statutory leave requirements for part-time and part-year workers. For schools and academies whose workforce consists of a variety of types of part-time and part-year workers, this case is one that must be understood before any changes are applied. Come and join Emma Hughes, Head of HR Services as she puts questions to Ian Deakin, Employment Partner, and Sarah Linden, Senior Associate.
The Department for Education (DfE) have announced that the conversion of Donisthorpe Primary School in Leicestershire on 1st September marked the 10,000th academy conversion.
