Bristol City Council has backtracked on the rejection of EHCP Needs Assessment Requests but has told Bristol Send Justice that it is sticking with ‘best endeavours’
At the beginning of April, Bristol City Council replied to parents applying for Education Health and Care Plan Needs Assessment Requests (EHCPNA), to say they would be filing requests without acting on them because of Coronavirus related issues. Out of a total of 80 parents submitting a Needs Assessment Request in March 2020, the council says 30 parents were sent an email saying the request would be filed but not acted upon.
In an email shown to us by a Bristol parent at the time, the council wrote: ‘The Local Authority has received a request for an EHC Needs Assessment for (name removed). Ordinarily, we would send a decision to you as to whether or not the Local Authority will start an EHC Needs Assessment within 6 weeks of receiving this request.
However, during this extraordinary period with Coronavirus, the SEND Regulations (Section 4) states The local authority need not comply with the time limit referred to in paragraph (1) if it is impractical to do so because – the authority has requested advice from the person identified as having responsibility for special educational needs (if any) in relation to, or other person responsible for, a child’s education at a provider of relevant early years education during a period beginning one week before any date on which that provider was closed for a continuous period of not” During such times, the request is recorded as an “Exception Case”. We have recorded this request and as soon as we can proceed, we will of course be in touch with you.’
In response to this action, Bristol Send Justice contacted Bristol City Council to point out its incorrect usage of Section 4 of the SEND Regulations. At the time, the Send action group wrote a letter to the council saying: ‘We consider it to be highly irresponsible and unprofessional to suggest to parents that the Local Authority’s statutory duties have in some way been suspended, when nothing could be further from the truth. Please confirm that no further letters stating this erroneous position will be sent to parents/carers and that all those who have received such a misleading communication will be contacted to confirm that the six week time limit for responding to EHCNA remains in force.’
This week in response, Executive Director of People Jacqui Jensen and Cabinet Member for Education and Skills Councillor Anna Keen, backtracked on the Section 4 action. In a letter to Bristol Send Justice, they stated that the email from the SEN team was sent to the parents with the ‘best intentions’ to make them aware that there ‘could’ be a delay in meeting statutory timescales, accepting that quoting Section 4 was ‘inappropriate in these circumstances’.
But Bristol Send Justice remains concerned about the council’s interpretation of ‘best endeavours’ regarding EHCPS. The letter from Jensen and Keen continues ‘The SEND team continue to use their best endeavours to manage the usual SEN practices and keep everything as normal as possible during the Covid 19 situation, subject to any guidance issued by the Dfe’.
But what is ‘normal’ for Bristol is a worrying state of affairs considering the council is already having to respond to Ofsted and the CQC with a Written Statement of Action (WSoA) concerning ‘significant weaknesses’ with the process. Last year, just three EHCPs out of more than 400 were processed to legal timeframes.
The Send ‘best endeavours’ approach has consistently caused consternation on Twitter amongst education solicitors and barristers claiming that until the Secretary of State officially downgrades SEN duties to ‘best endeavours’ – as Northern Ireland has now done, then local authorities are acting unlawfully by doing so.
Northern Ireland has made its notice under the Coronavirus Act, downgrading the SEN duties there to ‘best endeavours’. No notice yet made for England or Wales as far as I know. Thanks @Nicholas808SEN for the heads up #SEND https://t.co/GQgqg286R6
— Steve Broach (@SteveBroach) April 17, 2020
In response to the letter from the council, a spokesperson for Bristol Send Justice said: ” We do note with concern references in BCC’s letter to using ‘best endeavours’ to comply with the law. Whilst the Coronavirus Act 2020 does envisage a situation where certain absolute duties on Local Authorities may be temporarily suspended or modified, this only applies where the Department for Education has issued a Notice to this effect and ensured the widespread publication of such a Notice. To date, no such Notices have been issued (unlike in Northern Ireland) and as such BCC, and every other Local Authority in England, remain under the same statutory duties as previously with regard to children and young people with Special Educational Needs and Disabilities (SEND); though of course we recognise the practical implications inherent in the current exceptional circumstances (e.g. the difficulty of undertaking certain professional assessments due to social distancing and school closures).”
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