Guidance

Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)

Updated 26 August 2020

This guidance was withdrawn on 28 September 2020

You should follow the guidance in the special educational needs and disability (SEND) code of practice: 0 to 25 years.

Applies to England

Purpose of this guidance

On 1 May 2020 some aspects of the law on education, health and care (EHC) needs assessments and plans changed temporarily to give local authorities, health commissioning bodies^{[footnote 1]} , education settings and other bodies who contribute to these processes more flexibility in responding to the demands placed on them by coronavirus (COVID-19).

These changes were:

a) The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’). This instrument temporarily amends 4 sets of Regulations that specify timescales that apply to local authorities, health commissioning bodies and others: principally for various processes relating to EHC needs assessments and plans. Where it is not reasonably practicable or is impractical^{[footnote 2]} to meet that time limit for a reason relating to the incidence or transmission of coronavirus (COVID-19), the specific time limit (such as to issue a plan to someone eligible for one within 20 weeks of the initial request) in the regulations being amended will not apply. Instead, the local authority or other body to whom that time limit applies will have to complete the process as soon as reasonably practicable or in line with any other timing requirement in any of the regulations being amended (see Annex A: details of the amendments to the existing Regulations). These changes will come to an end on 25 September 2020, after which all the usual statutory timescales will come back into force.

b) From 1 May to 31 July 2020, section 42 of the Children and Families Act 2014 (duty to secure special educational and health care provision in accordance with EHC plan) was modified by a notice from the Secretary of State for Education issued under the Coronavirus Act 2020. During this period, local authorities and health commissioning bodies were required to use their ‘reasonable endeavours’ to discharge this duty. To help ensure that children and young people receive the support they need to return to school, we will not be issuing further notices to modify this duty unless the evidence changes.

This guidance provides a summary of the legislative changes described in paragraph (a) above and sets out the key implications for all those who play a part in the processes relating to EHC needs assessments and plans. It is intended to help those with statutory duties relating to SEND to understand how the temporary changes to the law affect them and how to discharge any duties that have been amended. It also sets out our expectations over how EHC needs assessment and plan processes should be managed if there are likely to be cases still in progress when the Amendment Regulations expire on 25 September where the coronavirus exception has been used.

This guidance is non-statutory. All decisions must be made on the facts of the case and the interpretation of legislation is ultimately a matter for the Courts.

The target audience for this guidance is:

• families and parent carer forums
• SEND Information, Advice and Support Services (SENDIASS)
• local authorities (both their SEND and social care services, at a strategic and operational level)
• health commissioning bodies (again, at both strategic and operational level)
• early years providers, schools, colleges and other education settings
• others who contribute advice and information to EHC needs assessments, such as educational psychologists and other health care professionals
• mediation advisers

This guidance also confirms which key elements of the processes over EHC needs assessments and plans are unchanged. Notably this includes that a local authority must:

• still consider requests for a new EHC needs assessment
• still secure all of the required advice and information in order to be able to issue a plan
• have regard to the views and wishes of a child, the child’s parent^{[footnote 3]} or a young person when carrying out its SEND functions under the Children and Families Act 2014 (‘the 2014 Act’)

Given that the changes to legislation are temporary, we will not be updating the statutory guidance, the SEND code of practice: 0 to 25 years. We recommend that anyone referring to the SEND code of practice about EHC needs assessment and plan processes that are operational between now and 25 September also reads this guidance. It is also important to refer to the Amendment Regulations for the full detail of the changes.

This document is part of delivering on our ongoing commitment to ensuring that children and young people with complex needs are supported effectively during this national health emergency. As such, it sits alongside the autumn term guidance for:

• early years and childcare providers
• mainstream schools
• special schools and other specialist settings
• further education (FE) colleges and providers

The autumn term guidance provides information on steps these settings will need to take to ensure children and young people with SEND can return to full-time provision.

Introduction

The coronavirus (COVID-19) outbreak has put significant extra pressure on the ability of local authorities and their partners to meet the statutory timescales for EHC needs assessments and plans.

In recognition of this, the government has legislated so as to strike the right balance during the outbreak of coronavirus (COVID-19) between:

• the needs of children and young people with SEND to be protected and receive the right support in a timely way
• managing the demands on local authorities, health bodies and education settings to respond to the outbreak

It is only those aspects of the law relating to the timescales for particular EHC needs assessment and plan processes that are changed temporarily because of the coronavirus (COVID-19) outbreak: all other aspects of SEND law are unchanged.

The temporary changes to the timescales will only be in force until 25 September 2020. The section on ‘Managing transition to the usual statutory timescales after 25 September 2020’ sets out our expectations over how to manage cases still in progress on 25 September where the coronavirus exception has been applied.

Themes in this guidance

Throughout this guidance we have sought to emphasise:

• it is only some aspects of the law relating to the timescales for particular EHC needs assessment and plan processes that have changed temporarily. The duties in law over EHC needs assessments and plans have not been ‘turned off’
• the ongoing importance of co-production with children and young people with SEND and their parents
• that the impact of coronavirus (COVID-19) may mean that the processes in place previously may, for the time being, need to change

• how important it is, in identifying the best way forward and giving the families clarity about what is happening, for there to be effective and timely communication between:

  • local authorities (SEND and social care services) and health commissioning bodies
  • families of those with SEND
  • all those others involved in the processes for EHC needs assessments and plans, such as education settings and other health professionals

The importance of co-production

At this challenging time, it is even more important that local authorities, health services, education settings and all those involved in the processes relating to EHC needs assessments and plans work with families to identify appropriate ways forward. It is a fundamental principle of the SEND system that children and young people with SEND and their parents need to be fully involved in decisions about their support. Co-production and effective communication remain key, both at the strategic level and in relation to individual cases.

Parent carer forums have an important role, working with local authorities and their partners, to gather and feed in parents’ views on EHC needs assessment and plan processes when the usual ways of working are under such strain.

Local authorities, health services and the other bodies involved in the processes relating to EHC needs assessments and plans should communicate regularly with the families of those children and young people with EHC plans, who are being assessed for plans or who apply for an EHC needs assessment. Where the Amendment Regulations affect what families experience, they need clarity as to when decisions will be made as part of the various processes relating to EHC needs assessments and plans.

It is also crucial that local authorities ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate effectively in discussions and decisions about their support. The local SENDIASS has a critical role to play. It is important that local authorities ensure that these services are sufficiently resourced to support families.

Co-operation between local authorities and early years providers, schools, colleges and other education settings

The duty on early years providers, schools and colleges to co-operate with the local authority in the performance of its SEND duties remains in place. Close working and communication between all parties is a central element in ensuring that EHC needs assessment and plan processes are carried out in a timely way.

Timescales for EHC needs assessments and plans

Description of the changes to the Regulations

From 1 May to 25 September 2020 (inclusive) the Regulations which provide most of the statutory timescales for the EHC needs assessments and plan processes have been modified. Points to be aware of include:

• the law is only changed where in a particular case it is not reasonably practicable or impractical^{[footnote 5]} for a local authority, health commissioning body or other body to discharge its duties for a reason relating to the incidence or transmission of coronavirus (COVID-19)
• the modification is to the timing. Where it is not reasonably practicable or impractical to conclude an action within the statutory timescale – for example, 6 weeks for a decision whether to make an EHC needs assessment – because of the incidence or transmission of coronavirus (COVID-19), the local authority or other body to whom that deadline applies will instead have to complete the process either as soon as reasonably practicable or in line with any other timing requirement in the regulations being amended. Further details are set out in Annex A: details of the amendments to the existing Regulations. Some of the processes relating to EHC needs assessments and plans already have allowable exceptions to the timescales. The changes in the law provide for an additional exception to these processes where delay is because of coronavirus (COVID-19)
• the Secretary of State for Education must review the effectiveness of the changes to the Regulations

To illustrate how the amendments to the law work:

• where a local authority has decided that it is necessary to issue an EHC plan following an EHC needs assessment the duty has been to do so as soon as practicable but in any event within 20 weeks^{[footnote 6]} of an initial request. The Amendment Regulations^{[footnote 7]} provide that if the incidence or transmission of coronavirus (COVID-19) makes it impractical for the local authority to do so within the 20 weeks they must discharge their duty to do so as soon as practicable
• where a request is made to a local authority to re-assess educational, health care and social care provision, the duty has been to notify the child’s parent or the young person whether or not it is necessary to reassess the child or young person within 15 days^{[footnote 8]} of the request. The gloss^{[footnote 9]} to the duty in Regulation 2A of the Amendment Regulations, that changes the way in which the provision should be read, applies here. It means that if it is not reasonably practicable to complete this process within the 15 days because of the incidence or transmission of coronavirus (COVID-19), the local authority must do so as soon as reasonably practicable

The timescales in the regulations being amended include the following:

• the handling of requests for EHC needs assessments and re-assessments, decisions whether to issue plans and the preparation, issue, review and amendment of plans
• annual reviews of EHC plans (but not the dates for annual reviews relating to transfers between phases of education)
• the processes relating to mediation
• the processes where there is a change of local authority or health commissioning body for a plan
• the process for a local authority reviewing for the first time the making and use of direct payments from a Personal Budget that is part of an EHC plan
• the action that a local authority must take when the First-tier Tribunal makes an order
• the actions that the local authority and health commissioning body must take when the First-tier Tribunal makes non-binding recommendations in respect of certain types of health and social care matters within an EHC plan (as part of the National Trial, which continues and has been extended until at least 31 August 2021)

The Regulations being amended include those that set out the processes over EHC needs assessments and plans for detained persons (the Special Educational Needs and Disability (Detained Persons) Regulations 2015).

The duties over timescales apply variously to:

• local authorities (SEND and social care services)
• health commissioning bodies
• those who provide advice and information for EHC needs assessments, including educational psychologists, other health professionals and education settings
• parents or young persons (when requesting a mediation certificate)
• mediation advisers

Annex A: details of the amendments to the existing Regulations sets out the full list of regulations that have been changed. For detail of what exactly has changed, refer to the Amendment Regulations themselves.

How the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 can affect timescales for the EHC needs assessments and plan development processes

The deadlines for these processes when coronavirus (COVID-19) has not caused delay

The Special Educational Needs and Disability Regulations 2014 (the ‘2014 Regulations’) set out the detail of the processes relating to EHC needs assessments and plans. The usual process for handling requests for EHC needs assessment and EHC plan development is illustrated in the diagram on page 154 of the SEND code of practice: 0 to 25 years.

New exceptions relating to coronavirus (COVID-19)

The 2014 Regulations make provision for various permitted exceptions to the normal timescales for local authorities and their partners, such as where ‘exceptional personal circumstances affect the child, the child’s parent, or the young person’. The Amendment Regulations additionally provide a coronavirus exception for the following:

• a local authority decision that it is not necessary for special educational provision to be made in accordance with an EHC plan – 6 weeks (regulation 4(1) of the 2014 Regulations)
• a local authority decision whether to conduct an EHC needs assessment – 6 weeks (regulation 5(1) of the 2014 Regulations)
• the duty of a body to co-operate with a local authority to provide advice or information – 6 weeks (regulation 8(1) of the 2014 Regulations)
• a local authority decision not to issue a plan following an EHC needs assessment – 16 weeks (regulation 10(1) of the 2014 Regulations)
• a local authority decision to issue a plan following an EHC needs assessment – 20 weeks (regulation 13(2) of the 2014 Regulations)

If, for example, it is impractical for the local authority at any point between 1 May and 25 September 2020 (inclusive) to meet the initial 6 week deadline for deciding whether to conduct an EHC needs assessment because of a reason relating to the incidence or transmission of coronavirus (COVID-19), then it must instead reach that decision as soon as practicable.

When one process with a statutory deadline concludes and a further process begins: example of seeking information and advice following a decision to conduct an EHC needs assessment

Following a decision to conduct an EHC needs assessment, the local authority must seek information and advice from various bodies. Those bodies have a duty to co-operate and provide the advice and information requested within 6 weeks. Where the due date is between 1 May and 25 September 2020 (inclusive), if a reason relating to the incidence or transmission of coronavirus (COVID-19) makes it impractical for those bodies to provide that advice or information in time, the coronavirus exception will apply. Instead they must provide the requested advice and information in a timely manner.

This delay may also mean that the local authority is late in making its decision not to make an EHC plan (within 16 weeks) or in issuing a final EHC plan (within 20 weeks). If so, the coronavirus exception will again apply. The reasons relating to the incidence or transmission of coronavirus (COVID-19) that affect the timescales in the relevant regulations do not have to be at the end of the process, they may be at any time during the process between 1 May and 25 September 2020 (inclusive).

Cases in progress on 1 May 2020

The Amendment Regulations came into force on 1 May 2020.

When the coronavirus exception applies for cases in progress on 1 May 2020

The only reasons relating to the incidence or transmission of coronavirus (COVID-19) that affect the timescales in the relevant regulations to which the coronavirus exception might apply are those that happen between 1 May and 25 September 2020 (inclusive).

A statutory process which started before 1 May 2020 where the deadline for the completion of that particular process is on or after 1 May 2020 might be subject to the coronavirus exception. If the local authority or other body subject to that duty, such as the provision of advice and information within 6 weeks, judges that it is impractical to meet the deadline for a reason relating to the incidence or transmission of coronavirus (COVID-19) and that reason applied on or after 1 May 2020, then the coronavirus exception will apply.

The following are examples of assessments in progress on 1 May 2020 where a coronavirus exception might apply:

• a needs assessment was requested in early April and a decision is due in mid-May. As at 1 May 2020, the capacity in the local authority’s SEN casework team is reduced because of reasons relating to the incidence or transmission of coronavirus (COVID-19). This might mean that the local authority cannot meet the 6 week timescale for making a decision. If so, the coronavirus exception means that the local authority will instead need to reach its decision as soon as practicable
• the local authority decides to conduct an EHC needs assessment in early April. It requests advice and information from an educational psychologist (EP) (and others), to be provided within 6 weeks. However, as at 1 May 2020, the capacity in the EP service is reduced because of reasons relating to the incidence or transmission of coronavirus (COVID-19). The coronavirus exception might therefore apply to the date for the submission of the EP advice and information. Where it is judged to apply, the EP service will need to provide the advice and information in a timely manner

As above, in either case the delay may also mean that the local authority is late in meeting its deadline to complete the process: in 20 weeks, if it decides to issue a plan; or 16 weeks if it does not. If so, the coronavirus exception will again apply.

When the coronavirus exception does not apply for cases in progress on 1 May 2020

If the deadline for a particular stage in the process had passed before 1 May 2020, the relaxations to timescales for that process for a reason relating to the incidence or transmission of coronavirus (COVID-19) made by the Amendment Regulations could not apply because the Regulations were not in force then. Any reasons relating to the incidence or transmission of coronavirus (COVID-19) that led to any statutory deadlines missed before 1 May 2020 cannot be subject to the coronavirus exception.

Key elements of the processes relating to EHC needs assessments and plans are unchanged

These temporary changes to processes relating to EHC needs assessments and plans only relate to certain statutory timescales. All of the other requirements of the EHC needs assessments and plan processes remain unchanged, including the following:

• a local authority must still consider requests for a new EHC needs assessment or a re-assessment
• where the local authority decides to carry out an EHC needs assessment, it must still secure all of the required advice and information in order to be able to issue a plan
• section 19 of the 2014 Act, which requires local authorities to have regard to the views and wishes of a child, the child’s parent or a young person when exercising its SEND functions under the Act, remains in force
• a final EHC plan must still include all of the required advice and information
• the provision set out in the final plan should be in line with the statutory requirements for any EHC plan and not be limited because of the circumstances of coronavirus (COVID-19)
• reviews and re-assessments of EHC plans must still take place (although there can in some circumstances be flexibility over the timing of an annual review that does not relate to a transfer between phases of education, see below)

A local authority must continue to have regard to the guidance in paragraph 9.43 of the SEND code of practice: 0 to 25 years on the handling of delays.

9.43 The child’s parent or the young person should be informed if exemptions apply so that they are aware of, and understand, the reason for any delays. Local authorities should aim to keep delays to a minimum and as soon as the conditions that led to an exemption no longer apply the local authority should endeavour to complete the process as quickly as possible. All remaining elements of the process must be completed within their prescribed periods, regardless of whether exemptions have delayed earlier elements.

Where the circumstances relating to the incidence or transmission of coronavirus (COVID-19) set out in the Amendment Regulations apply to more than one process, then an exception may apply to each of those processes. If a process with a statutory timescale begins where a delay relating to coronavirus (COVID-19) is likely, the local authority should advise the parent or young person of this.

Examples of how local authorities might need to adapt how they manage the processes relating to EHC needs assessments and plans

New ways of working are needed in the current exceptional circumstances. Some local authorities are establishing virtual advisory panels by a secure virtual meeting platform to assist with decision-making. Many already have arrangements to share information in advance through secure electronic methods. Where sufficient recent information is not already available, professionals may be able to carry out observations of a child if he/she is still in a setting where this can be done in ways consistent with guidance on reducing transmission of coronavirus (COVID-19). Alternatively, information could be gathered by phone or by a virtual meeting. To help manage demands on services, where services use templates for their advice and information these might need to be adapted for use during the outbreak so that reports are more concise whilst still containing the essential information about the child or young person’s needs, provision and outcomes.

Whilst such new ways of working are helpful during these exceptional circumstances local authority decisions over EHC plans must continue to be made in accordance with the statutory framework; and must be based on the individual needs, provision and outcomes for the child or young person. This includes local authorities not applying blanket approaches in relation to EHC needs assessments or plan processes and decision-making. For example, local authorities cannot implement a general policy of refusing to consider new requests because of coronavirus (COVID-19). Neither can they make blanket decisions based on particular age groups of children and young people, those with certain types of need, or based on whether they are at home or in school.

The timescale for parents or young persons (‘at least 15 days’) to give views and make representations on the content of a draft plan: no change

One of the timescales relating to EHC plans^{[footnote 10]} is giving parents or the young person at least 15 days to give views and make representations on the content of a draft plan. There is no change to the law here. Local authorities will wish to be alert to the circumstances of parents and young people in the time of the outbreak and to take this into account in managing this timescale. It may be harder for parents and young people to contact early years providers, schools and colleges, for example, to gather information relating to deciding their preference over setting. Parents and young people may themselves be unwell or otherwise directly affected by the outbreak.

Annual reviews of EHC plans

The government has legislated to provide extra flexibility for local authorities over the timing of annual reviews if they do not relate to transfers between phases of education (see below). Where it is impractical for a local authority to complete an annual review of a plan within the prescribed timescales for a reason relating to the incidence or transmission of coronavirus (COVID-19), then (except with transfers between phases of education) the local authority must complete it as soon as reasonably practicable^{[footnote 12]} .

Annual reviews may, in the current circumstances, need to take a different form. However, it is important that they continue to ensure that the child or young person is at the centre of the process and can engage with the process in a meaningful way. A review meeting, even if by necessity briefer than usual, can be reassuring for parents, children and young people, through ensuring that their EHC plan is up-to-date so that they can receive appropriate provision.

Many local authorities have been working on improvements to the timeliness and quality of annual reviews and will want to continue to build on this work to manage reviews effectively during the outbreak. For example, it may be appropriate to use a simpler format to gather information electronically and to hold the meeting by phone or as a virtual meeting. Professionals contributing to the review may need to base that on the information already available and discussion with the family as they may not be able to meet the child or young person. While meetings might take a different format, they should still involve all the key professionals wherever possible.

Local authorities should identify priorities for review, which may include:

• children and young people with significant changes of need or circumstances
• looked after children
• children and young people in residential provision
• children and young people in out of area provision, especially independent and non-maintained provision

Local authorities must already have completed this year’s required transfer reviews for a child or young person moving between key phases of education (transfers into or between schools, moves from secondary school to a post-16 institution or apprenticeship, or moving between post-16 institutions). There is no change to the statutory deadlines for these reviews. Where, exceptionally, completion has been delayed, these transfer reviews need to be finalised urgently.

Implications for early years providers, schools, colleges etc

The timescale for education settings to respond to a proposal to name them in an EHC plan: no change

The expectation in the SEND code of practice: 0 to 25 years that local authorities give early years providers, schools and colleges up to 15 days to respond to a proposal to name their institution in an EHC plan remains in place. The request to consider a placement that is sent to the setting for consultation over the naming of that setting will include the draft plan and all of the advice and information received as part of the assessment. This provides considerable levels of information about the individual’s needs, provision and outcomes. In addition, the proposed setting can, as part of its consideration, make direct contact with the parent or young person to discuss the admission.

We therefore expect that, in most instances, settings should remain able to engage effectively in this aspect of the EHC plan process and families might still reasonably expect this to happen as part of the timely completion of an EHC plan. We recognise, however, that staff absence for reasons such as illness and self-isolation may affect the speed with which a setting can reply. In such circumstances, the setting needs to communicate with the local authority about a possible delay in responding.

Communication is key to effective decision-making here. We recommend that in parallel with sending the proposal to the setting, the local authority also makes phone contact. We look to education settings to make arrangements that enable them to continue to respond to consultations on future admissions.

Complaints and rights of appeal of parents and young persons: no change

These are unprecedented times. It may not be appropriate during the outbreak for local authorities, health bodies, educational psychologists and other professionals to provide their usual level of service delivery in relation to the EHC needs assessments and plan processes. This is why the law in relation to this matter has temporarily been modified.

In most instances, families and the local authority and their partners will be able to work together to agree a mutually satisfactory arrangement for the time being. However, where a parent or young person may be dissatisfied with a local authority about the timeliness with which processes relating to EHC needs assessments or plans have been progressed, then effective ways of resolving disagreement are crucial.

In the current fast-changing and complex situation, it is particularly important that there are effective ways of resolving such disagreements swiftly, wherever possible using established decision-making mechanisms within the local area. The complaints mechanisms described in Chapter 11 of the SEND code of practice: 0 to 25 years are unchanged.

In the first instance, families will often be able to use the local authority’s complaints procedures. Local authorities will need to ensure that these procedures remain effective for the current context. SENDIASS will continue to have a key role to play in supporting families in finding the best way forward.

Rights of appeal to the First-tier Tribunal (SEND): no change

Rights of appeal to the First-tier Tribunal (SEN and Disability) remain unchanged.

HM Courts and Tribunal Service has confirmed that its service will continue during the outbreak and that the tribunal is making efforts to conclude as many appeals as possible, particularly phase transfer reviews.

In the same way that local authorities are finding new ways of working remotely, guidance from the tribunal indicates that it will be increasingly using phone, video and other technology to conduct its business during the current period.

There is no change to the remit of the tribunal.

The 2014 Regulations set out various timescales for a local authority to comply with an order from the First-tier Tribunal, with permitted exceptions to some of those timescales. The Amendment Regulations temporarily provide an additional coronavirus exception.

The National Trial, which extends the power of the First-tier Tribunal (SEND), is continuing and has recently been extended until at least 31 August 2021. The trial provides that as part of a special educational appeal, the tribunal will be able to make non-binding recommendations on the health and social care aspects of EHC plans. These recommendations need to be considered in the usual way by the responsible health and social care bodies and, where agreed, included in the final EHC plan.

The Amendment Regulations temporarily modify current timescales for actions that local authorities and health commissioning bodies must take where the tribunal makes non-binding recommendations in respect of certain types of health and social care matters within an EHC plan.

Managing transition back to the usual statutory timescales after 25 September 2020

The temporary changes to the statutory timescales made by the Amendment Regulations will expire on 25 September, so any case that is in progress after that date to which the coronavirus exception has previously been applied will become subject to the usual statutory timescales (such as 6 weeks for needs assessments, 6 weeks for the provision of advice or information and 20 weeks for issue of a final plan).

Local authorities, health commissioning bodies and others who play a part in these processes will need to consider how best to ensure that these cases are progressed in a timely way, given that the law will have changed. It will be crucial to discuss with families where the progress of their assessments or plans will be affected by the change in the law (because for example the estimated date for a plan being issued has changed). Similarly, engagement with the Parent Carer Forum will be key if the changes will have a significant impact on families across the area.

Local authorities and their partners should identify the risks of any cases becoming overdue and do their best to prevent this. If it looks as if a number of cases will become overdue, local authorities should discuss their plan for managing this with their Department for Education SEND Adviser.

Annually publishing a response to comments on the SEND Local Offer

The Amendment Regulations also provide that local authorities can take more than a year to publish their response to comments (from those with SEND and their parents) on their SEND Local Offer if it is not reasonably practicable to meet that deadline for a reason relating to the incidence or transmission of coronavirus (COVID-19). Where such an exception does apply, the local authority must publish the comments as soon as reasonably practicable.

Footnotes

1. Section 42 of the Children and Families Act 2014 uses the term ‘responsible commissioning body’ to describe the body that is under a duty to arrange the health care provision set out in an EHC plan. In practice, the responsible commissioner is usually the Clinical Commissioning Group or in some cases NHS England for directly commissioned services. The operational delivery of health provision is usually through health providers. For the purposes of this document we are using the term ‘health commissioning body’. ↩

2. Which of these tests applies depends on the wording of the relevant regulation, for detail see Annex A: details of the amendments to the existing Regulations. ↩

3. We use the term ‘parents’ in this document in the same way that it is used in the SEND legislation, that is all those with parental responsibility, including parents and those who care for the child. ↩

4. Which of these tests applies depends on the wording of the relevant regulation, for detail see Annex A: details of the amendments to the existing Regulations. ↩

5. Regulation 13(2) of the Special Educational Needs and Disability Regulations 2014. Regulation 13 of the Special Educational Needs and Disability (Detained Persons) Regulations 2015 sets out similar provisions in relation to detained persons. ↩

6. Regulations 9 and 10 of the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 amend regulation 13(3) of the Special Educational Needs and Disability Regulations 2014 by extending the reasons in regulation 10(4) for not complying with a time limit and applying these to regulation 13(3). Similar amendments apply to the Special Educational Needs and Disability (Detained Persons) Regulations 2015. ↩

7. Regulation 25(1) of the Special Educational Needs and Disability Regulations 2014 ↩

8. Regulation 25(1) of the Special Educational Needs and Disability Regulations 2014 is now subject to the gloss in new regulation 2A (as inserted by regulation 5 of the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020). ↩

9. Regulation 13(1) of the Special Educational Needs and Disability Regulations 2014 ↩

10. Regulation 18A of the Special Educational Needs and Disability Regulations 2014, inserted by regulation 11 of the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 ↩