By now you will probably be aware of the Coronavirus Act 2020 (The Act) and its potential impact on social care and educational services in England and Wales. The purpose of this article is to highlight some key points and to provide sources of information to keep you up to date.

This article focuses mainly on the parts of the Act relevant to parents of disabled children and so deals with social services and education services particularly in relation to Education, Health and Care Plans (EHCPs) and Statements of Special Needs.

Luke Clements, Cerebra Professor of Social Justice in the Law School of Leeds University, has written a briefing paper about The Act which is available here.

What impact could the Act have on families with disabled children?

The Act has the potential to make a number of significant changes to the duties of local authorities including in the following areas:

• Special educational needs (SEN)/Additional Learning Needs (ALN);
• Social services care assessments and support (Only applies to adults in England (NOT children); potentially applies to both adults and children in Wales)
• Transition from children to adult social services;
• Carer’s assessments and support (but not carers of children or young carers);
• Mental Health Assessments (this could affect 16-18 year olds in both England and Wales.)

Essentially, it is possible for Ministers to downgrade the ‘duties’ that local authorities owe to people and replace them with mere ‘powers’. There will only be ‘duties’ in circumstances where failure to provide care and support will result in a breach of an individual’s human rights (in England) or where failure to provide care and support will result in an individual experiencing or being at risk of abuse or neglect (in Wales).

This means that local authorities don’t necessarily have to provide the services that they normally would. Please see Professor Clements’ briefing paper for a detailed explanation of what this means in practice.

When will the Act come in to force?

Whilst the Act is now technically ‘law’, it is important to note that not all of the sections of the Act relating to the above areas are not yet enforceable. In order for them to come into force, the relevant ministers in England or Wales must issue and publish a ‘notice’ and they must take reasonable steps to bring the notice to the attention of those likely to be affected. The notice must give the reasons why the issuing of the notice is considered necessary and proportionate. The reasons must relate to the incidence or transmission of coronavirus.

When the Government does decide to implement these sections, the notes accompanying the Act state that these measures will apply ‘for the shortest possible time at the peak of the coronavirus outbreak’. However, it is unclear at the moment how long the Government will deem these temporary measures to be necessary.

How long will the Act be in place for?

The Act is currently in place for 2 years and will be reviewed every 6 months. When The Act ceases, the relevant existing legislation will apply again and local authority duties will return.

What parts of the law can Ministers change?

The exact parts of the law that can be changed are listed in Schedule 17 of the Act for both England and Wales. It’s possible for Ministers to remove currently listed legislation or add other legislation. For parents of disabled children, it’s important to note that the Equality Act 2010 is not currently included so there’s no intention to weaken the reasonable adjustment duties and other equality duties that public bodies owe to disabled people.

Have Ministers actually changed the law yet?

At the time of writing (1 April 2020) the situation is as follows:

England: The Westminster Government issued a notice in the form of regulations on 31 March which came into immediate effect and downgraded local authorities’ duties in relation to:

• transition from children to adult social services
• adult social care assessments and support (but not children’s);
• carers (but not carers of children or young carers).

It also released guidance for local authorities on how to apply the regulations. The Westminster government has also issued guidance on vulnerable children and young people. Please note that paragraphs 20-21 “confirm that SEN duties have not yet changed” under the Coronavirus Act. So, until the government issues a notice, local authorities must secure the special educational provision in all EHC Plans.

Wales: The Welsh Government issued a notice in the form of regulations on its website on 26 March which downgraded local authorities’ duties in relation to:

• the Mental Health Act 1983;
• adult social care assessments and support (but not children’s);
• carers (but not carers of children or young carers).

How can I keep myself informed of changes?

The situation has been developing rapidly so please keep an eye on our social media news items for updates. You may also find the following sources of information useful:

• Special Needs Jungle– this is a useful source on what is happening with SEN in England. This link deals with ECHPs and there is a list of related articles at the bottom of the article.
• @SteveBroach on Twitter- Steve Broach is a barrister and tweets on issues related to disability and SEN
• @SENLegalltd on Twitter
• @39PublicLaw on Twitter

Additional Guidance

NICE have issued guidance called Coronavirus: National Institute for Health and Care Excellence (NICE) guidelines to support the NHS and social care to respond quickly to the challenges of the coronavirus pandemic which you may find useful. Both the Westminster and Welsh governments expect the relevant public bodies have regard to the guidance.

The Department of Health and Social Care has published important Framework Guidance for adult social care – although this must clearly also apply to disabled children’s services too. The Guidance Responding to COVID-19: the ethical framework for adult social care (19 March 2020) can be accessed by clicking here.

Additional helpful links (England)

• https://contact.org.uk/advice-and-support/coronavirus-information-for-families-with-disabled-children
• https://disabledchildrenspartnership.org.uk/coronavirus/
• https://councilfordisabledchildren.org.uk/news-opinion/news/covid-19-support-and-guidance
• https://councilfordisabledchildren.org.uk/help-resources/resources/nhs-england-nhs-improvement-frequently-asked-questions-faqs

DfE coronavirus helpline

Email: [email protected]

Telephone: 0800 046 8687

If you have a query about coronavirus (COVID-19), relating to schools and other educational settings in England contact the DfE coronavirus helpline.

Lines are open Monday to Friday from 8am to 6pm and weekends 10am to 4pm.