We look here at the precise terms of the Government announcement and the options open to special schools.
The Government announcement that all schools are to close (but remain open for children of critical workers and vulnerable children) from the end of today applies only to children at registered childcare providers (including nurseries and childminders), primary and secondary schools and further education colleges. It does not apply to special schools which are 'advised to make case by case basis assessments of the health and safeguarding considerations of pupils and students on an education, health and care (EHC) plan'. This will be particularly critical for children with complex health care and clinical needs with multiple NHS care plans.
The announcement says 'for some, they will be safer in education provision' while 'for others, they will be safer at home' and confirms that 'we trust leaders and parents to make these decisions and will support them as required'. Special schools are therefore permitted and able to assess the needs of their pupils on EHC plans and, where appropriate, decide that they are safer at home. This will need to take their home circumstances into account, specifically whether the parent(s)/carer(s) are able and well enough to look after them and whether any other members of the household have, or are suspected to have coronavirus. Where a parent/carer is a key or critical worker, the child may need to be educated in school.
Where staffing levels at the school are such that it will not be safe to educate the child in the school, the school will need to liaise with the local authority to arrange for staff from elsewhere to educate the child at the school or for the child to be educated at another school or academy.
Ultimately, the duty to secure the special education provision specified in the EHC plan lies with the local authority. A special school should therefore look to the local authority to make the necessary arrangements which may involve securing staff or premises from other schools, academies or multi academy trusts. If, in the current circumstances, it is not reasonable for the special education provision to be provided at the school specified in the EHC plan, then a court or tribunal would look to the reasonableness of the steps or measures taken by the local authority to secure that provision by other means.
With today's school closures confined to registered childcare providers, primary and secondary schools and further education colleges, special schools need to review the health and safeguarding considerations of their children and decide whether they will be safer at school or at home. If they will be safer in school but staffing levels are such that this is not possible, special schools need to inform their local authority so they can arrange alternate provision. If you require advice and support on any of the issues raised in this article and/or your dealings with the local authority, please get in touch.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.