The emergency Coronavirus Bill was published yesterday (19 March 2020) by the government.
The aim of the Bill is to help the government deal with the current COVID-19 pandemic. The Bill is not yet law. It will need to pass through Parliament so there will be a very short opportunity to influence it, which members of the Disabled Children’s Partnership will try to do.
We’ve had a look at it. 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 in England.
The Bill provides for certain statutory provisions to be disapplied. Specifically on SEND legislation (the Children and Families Act 2014) 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. This means a child with an EHC plan may have to go to a different 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. It changes 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. It also enables the Secretary of State to be able to modify various parts of the law. Probably the most important ones of these for disabled children (in addition to the above) are
- Duty to provide free travel arrangements – also becomes a requirement to use “reasonable endeavours”.
- Duty to provide alternative education for sick or excluded children – also “reasonable endeavours”.
On social care
Most of the existing law on social care for children – including disabled children – remains in place, including young carer and parent carer assessments. The relevant legislation here is the Chronically Sick and Disabled Persons Act 1970 and the Children Act 1989. This is in contrast to adult social care, where the Bill enables major changes to the Care Act 2014.
The parts of the Chronically Sick and Disabled Persons Act and the Children Act that are affected by the Bill are those relating to the transition to adult services. Under the Bill, local authorities would not have to comply with the provisions in those Acts relating to transition to adult services (and the mirroring sections in the Care Act are also disapplied).
The Bill also allows for changes to the Mental Health Act. This could weaken the safeguarding of children and young people who display challenging behaviour or who are autistic and are a cause for concern.
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. But it remains vital that disabled children and their families receive the support – both in school and at home. We will be seeking assurances from the government that this will be the case.
20 March 2020.