Guidance
Annex A: details of the amendments to the existing Regulations
Updated 26 August 2020
Applies to England
© Crown copyright 2020
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This publication is available at https://www.gov.uk/government/publications/changes-to-the-law-on-education-health-and-care-needs-assessments-and-plans-due-to-coronavirus/annex-a-details-of-the-amendments-to-the-existing-regulations
The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (S.I. 2020/471) (‘the Amendment Regulations’) amend 4 sets of Regulations for the period 1 May to 25 September 2020 (inclusive). With one exception (the duty on a local authority annually to publish its response to certain comments on its SEND Local Offer), the amendments relate to the timings of processes relating to education, health and care (EHC) needs assessments and plans.
The specific timescales for particular processes being concluded may be modified if, for a reason relating to the transmission or incidence of coronavirus, it is either (depending on the regulation in question) not reasonably practicable or impractical for a local authority, health commissioning body or others to conclude that process. The modified duty will then, depending on the process, be:
- for the body to discharge that duty ‘as soon as reasonably practicable’
- to discharge that duty ‘as soon as practicable’
- in other instances, such as regulation 8(1) of the Special Educational Needs and Disability Regulations 2014[footnote 1] for bodies needing to co-operate in the securing of an EHC needs assessment, to respond in a timely manner
Some of the processes already have allowable exceptions to the timescales; the Amendment Regulations augment these with exceptions relating to coronavirus (COVID-19).
References in the Amendment Regulations for each of the relevant timescales
These tables are an index as to the references in the Amendment Regulations for each of the relevant timescales.
Special Educational Needs and Disability Regulations 2014 (S.I. 2014/1530)
| Where in existing Regulations there is a statutory timescale | Who is subject to the duty | Duration | Amendment Regulations: regulation that provides for varying the timescale |
|---|---|---|---|
| Regulation 4(1) (determination whether or not special educational provision may be necessary) | Local authority | 6 weeks | Amendment to insert new regulation 4(3) by regulation 6 of the Amendment Regulations. |
| Regulation 5(1) (decision whether or not to conduct an EHC needs assessment) | Local authority | 6 weeks | Amendment to insert new regulation 5(4)(e) by regulation 7 of the Amendment Regulations. |
| Regulation 8(1) (duty to co-operate in EHC needs assessments) | Body co-operating with a local authority in securing an EHC needs assessment | 6 weeks | Amendment to insert new regulation 8(2)(d) by regulation 8 of the Amendment Regulations. |
| Regulation 10(1) (decision not to secure an EHC plan) | Local authority | 16 weeks | Amendment to insert new regulation 10(4)(e) by regulation 9 of the Amendment Regulations. |
| Regulation 13(2) (timescales for EHC plans) | Local authority | 20 weeks | Amendment to regulations 13(3) and 10(4) by regulations 10 and 9 of the Amendment Regulations respectively. |
| Regulation 15(2), (4), (5), (7) and (8) (transfer of EHC plans) | Local authority | (2) 15 working days, (4) 6 weeks, (5) 12 months and 3 months | All subject to gloss[footnote 2] in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Health commissioning body | (7) and (8) both 15 working days | Both subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. | |
| Regulation 16(2) and (3) (change of responsible commissioning body) | Health commissioning body | (2) and (3) both 15 working days | Both subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| New Regulation 18A (Circumstances in which it is not necessary to review an EHC plan) | Local authority (duty under section 44(1) of the Children and Families Act 2014) | 1 year | New regulation 18A inserted by regulation 11 of the Amendment Regulations provides for exceptions to the duty. |
| Regulation 20(9) and (10) (review where the child or young person attends a school or other institution) | Local authority or school | (9) 2 weeks | Subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Local authority | (10) 4 weeks | Subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. | |
| Regulation 21(7), (8) and (9) (review of EHC plan where the child or young person does not attend a school or other institution) | Local authority | (7) and (8) 2 weeks, (9) 4 weeks | All subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Regulation 22(3) and (4) (amending an EHC plan following a review) | Local authority | (3) and (4) both 8 weeks | New regulation 22(6) inserted by regulation 12 of the Amendment Regulations. |
| Regulation 25(1) (notification of decision whether it is necessary to re-assess educational, health care and social care provision) | Local authority | 15 days | Subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Regulation 27(2) and (4) (amending or replacing an EHC plan following a re-assessment) | Local authority | (2) 14 weeks, (4) 1 year | 27(2): insertion of new regulation 27(3)(e) by regulation 13 of the Amendment Regulations. 27(4): subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Regulation 33 (requirement to consider mediation) | Parent or young person | 2 months | Subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Regulation 34(1) and (2) (where a parent or young person does not wish to or fails to pursue mediation) | Mediation adviser | (1) 3 working days, (2) 2 months | Both subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Regulation 35(2), (3) and (4) (mediation – health care issues) | Local authority | (2) 3 working days | Subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Health commissioning body | (3) 30 days | Subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. | |
| Local authority | (4) 30 days | Subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. | |
| Regulation 36(2) (mediation - no health care issues) | Local authority | 30 days | Subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Regulation 39(1) and (3) (mediation certificate under section 55(5)) | Mediation adviser | (1) and (3) both 3 working days | Both subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Regulation 42(3) and (4) (steps to be taken by a local authority) | Local authority or health commissioning body | (3) 2 weeks | Subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Health commissioning body | (4) 1 week | Subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. | |
| Regulation 44(2) (compliance with the orders of the First-tier Tribunal) | Local authority | (2)(b) 2, 10 and 14 weeks, (2)(c) 5 and 11 weeks, (2)(d) 2 weeks, (2)(e) 5 weeks, (2)(f) 2 weeks, (2)(h) 5 weeks | Time limits in regulation 44(2)(b) and (c) are subject to regulations 44(3) and 13(3). (Regulation 13(3) is amended by regulation 10 of the Amendment Regulations.) Regulation 44(2)(d), (e), (f) and (h) are subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Regulation 45(3), (3A), (4), (5), (6) and (6A) (unopposed appeals) | Local authority | (3) 2 weeks, (3A) 10 and 14 weeks, (4) 5 weeks, (5) 2 and 5 weeks, (6) 5 and 11 weeks, (6A) 5 weeks | Regulation 45(3) and (6) are subject to regulations 45(7) and 13(3). (Regulation 13(3) is amended by regulation 10 of the Amendment Regulations.) Regulation 45(3A) is subject to the new regulation 45(8), inserted by regulation 14 of the Amendment Regulations. Regulation 45(4), (5) and (6A) are subject to gloss in regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Regulation 47 (disclosure of EHC plans in relation to higher education) | Local authority | 15 working days | Subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
| Regulation 56(3) (publication of comments on the local offer) | Local authority | 1 year | Subject to gloss in new regulation 2A inserted by regulation 5 of the Amendment Regulations. |
The Special Educational Needs (Personal Budgets) Regulations 2014 (S.I. 2014/1652)
| Where in existing Regulations there is a statutory timescale | Who is subject to the duty | Duration | Amendment Regulations: regulation that provides for varying the timescale |
|---|---|---|---|
| Regulation 11(2)(a) (monitoring and review of direct payments) | Local authority | 3 months | Subject to gloss in new regulation 2A inserted by regulation 17 of the Amendment Regulations. |
The Special Educational Needs and Disability (Detained Persons) Regulations 2015 (S.I. 2015/62)
| Where in existing Regulations there is a statutory timescale | Who is subject to the duty | Duration | Amendment Regulations: regulation that provides for varying the timescale |
|---|---|---|---|
| Regulation 4(1) (determination whether or not special educational provision may be necessary) | Local authority | 6 weeks | Amendment to insert new regulation 4(3) by regulation 21 of the Amendment Regulations. |
| Regulation 5(1) (decision whether or not to conduct a detained person’s EHC needs assessment) | Local authority | 6 weeks | Amendment to insert new regulation 5(4)(d) by regulation 22 of the Amendment Regulations. |
| Regulation 8(1) (duty to co-operate in a detained person’s EHC needs assessment) | Body requested to co-operate with the local authority in securing a detained person’s EHC needs assessment | 6 weeks | Amendment to insert new regulation 8(2)(e) by regulation 23 of the Amendment Regulations. |
| Regulation 10(1) (decision not to secure an EHC plan) | Local authority | 16 weeks | Amendment to insert new regulation 10(4)(d) by regulation 24 of the Amendment Regulations. |
| Regulation 13(2) (timescales for EHC plans) | Local authority | 20 weeks | Amendment to regulation 13(3) by regulation 25 of the Amendment Regulations. |
| Regulation 15(1) and (4) (needs assessments which are not completed) | Local authority | (1) and (4) both 20, 16 and 6 weeks | Both subject to gloss in regulation 2A inserted by regulation 20 of the Amendment Regulations. |
| Regulation 16(2), (3) and (4) (transfer of a kept EHC plan) | Local authority | (2) and (3) both 5 working days | Both subject to gloss in regulation 2A inserted by regulation 20 of the Amendment Regulations. |
| Health commissioning body | (4) 15 working days | Subject to gloss in regulation 2A inserted by regulation 20 of the Amendment Regulations. | |
| Regulation 17(1) and (2) (restriction on disclosure of EHC plans) | Local authority | (1) and (2) both 5 working days | Both subject to gloss in new regulation 2A inserted by regulation 20 of the Amendment Regulations. |
| Regulation 19 (requirement to consider mediation) | ‘Appropriate person’ (i.e. a detained person’s parent, where the detained person is a child, or the young person, where the detained person is a young person) | 2 months | Subject to gloss in new regulation 2A inserted by regulation 20 of the Amendment Regulations. |
| Regulation 20(1) and (2) (where the appropriate person does not wish to or fails to pursue mediation) | Mediation adviser | (1) 3 working days, (2) 2 months | Both subject to gloss in new regulation 2A inserted by regulation 20 of the Amendment Regulations. |
| Regulation 21 (mediation) | Local authority | 30 days | Subject to gloss in new regulation 2A inserted by regulation 20 of the Amendment Regulations. |
| Regulation 24(1) and (3) (mediation certificate under section 55(5) of the Act) | Mediation adviser | (1) and (3) both 3 working days | Both subject to gloss in new regulation 2A inserted by regulation 20 of the Amendment Regulations. |
| Regulation 27(3) (steps to be taken by a home authority) | Local authority | 2 weeks | Subject to gloss in new regulation 2A inserted by regulation 20 of the Amendment Regulations. |
| Regulation 29(2) to (6) (compliance with the orders of the First-tier Tribunal) | Local authority | (2) 2 weeks, (3) 10 and 14 weeks, (4) 5 and 11 weeks, (5) and (6) both 2 weeks | Regulation 29(2) and (6) are both subject to gloss in new regulation 2A inserted by regulation 20 of the Amendment Regulations. Regulation 29(3) is subject to new regulation 29(6A) inserted by regulation 26 of the Amendment Regulations. Regulation 29(4) and (5) are subject to regulation 29(7) and regulation 10(4) as amended by regulations 26(b) and 24(b) respectively of the Amendment Regulations. |
| Regulation 30(3) to (6) (unopposed appeals) | Local authority | (3) 2 weeks, (4) 10 and 14 weeks, (5) 5 and 11 weeks, (6) 2 weeks | Regulation 30(3) and (6) are both subject to gloss in new regulation 2A inserted by regulation 20 of the Amendment Regulations. Regulation 30(4) and (5) are subject to regulations 30(7) and 10(4) as amended by regulations 27 and 24(b) respectively of the Amendment Regulations. |
The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 (S.I. 2017/1306)
| Where in existing Regulations there is a statutory timescale | Who is subject to the duty | Duration | Amendment Regulations: regulation that provides for varying the timescale |
|---|---|---|---|
| Regulation 6(3) and (6) (responding to health care recommendations) | Health commissioning body | (3) 5 weeks | Subject to gloss in new regulation 2A inserted by regulation 30 of the Amendment Regulations. |
| Local authority | (6) 1 week | Subject to gloss in new regulation 2A inserted by regulation 30 of the Amendment Regulations. | |
| Regulation 7(1) and (4) (responding to social care recommendations) | Local authority | (1) 5 weeks, (4) 1 week | Both subject to gloss in new regulation 2A inserted by regulation 30 of the Amendment Regulations. |
Footnotes
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The full list is: The Special Educational Needs and Disability Regulations 2014: regulations 8(1); 44(2)(b) (in relation to the 2 weeks requirement in the header to 44(2)(b) - the time limit for notifying about the making of an assessment or reassessment); 44(2)(c); 45(3) and 45(6). The Special Educational Needs and Disability (Detained Persons) Regulations 2015: regulations 8(1); 29(4)(a) and (5); and 30(5). ↩
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A number of the amendments provide for a gloss to how the requirements over timescales should be read. ↩