I wrote to you on 15 May about the temporary legal changes that we were making to the law on both children’s social care services and special educational needs and disabilities in response to the COVID-19 outbreak.
Children’s social care
I was pleased to have the opportunity recently to consider in Parliament the temporary regulations we introduced in April to support children’s social care services during the COVID-19 pandemic, and to set out the range of support the Government has put in place for vulnerable children. As I said then, the social care duties to our most vulnerable children that are set out in primary legislation remain in place and the majority of secondary legislation has been left unchanged.
I remain of the view that putting the temporary regulations in place was the right thing to do in light of the considerable uncertainty at that time about the course of the pandemic and its effect on every part of society. Whilst the pandemic has caused considerable upheaval and sadness for many, our worst fears for children’s social care have thankfully not materialised.
We actively seek regular feedback from a variety of sources including local authorities, social workers, charities, Ofsted, and other key partners. As a result of this work we know that the majority of the flexibilities provided have rarely been used and only when needed in response to COVID-19.
Use of the temporary regulations has been taken seriously by senior leaders in children’s social care. They have told us that they have robust sign-off processes in place for when a regulation has been used and that decisions on the use of the regulations are being made with the child at the heart.
Given the improved outlook, I am intending to update the guidance for local authorities and providers further to make clear that the majority of the flexibilities are no longer appropriate and should not be used.
I also announced in a Written Ministerial Statement yesterday, the overwhelming majority of these regulations will expire as planned on 25 September.
There may, however, be a case to be made for extending a very small number of temporary changes for a further period. The flexibilities I have in mind are as follows:
• Medical reports
In order to become a foster carer or adoptive parent, one needs to provide a medical report from a General Practitioner. As restrictions are eased and schools return, we expect that there may be more children needing care than is usual, and therefore there will be a higher need for potential adopters and foster carers. Our National Health Service still faces significant challenges as we enter a period of recovery. Therefore, I am minded to extend the amendments to allow more time for General Practitioners and other health professionals to provide information to support the process of approving much needed potential adopters and foster carers. This does not remove the requirement for medical reports to be provided but moves the time during the process that the report must be provided before the child is placed with the foster parent or adoptive parent.
• Virtual visits
We must be able to keep essential services, such as social worker visits, operating during any local lockdowns, and in cases where households are being required to self-isolate due to a case, or suspected case, of coronavirus, or contact with someone who has tested positive for coronavirus, in line with medical advice from the NHS test and trace service. Therefore, I am suggesting that it may be appropriate to continue to enable visits in these situations to happen virtually. However, in all other situations I would expect face to face visits to take place. Moreover, in my view the flexibilities regarding timing of these visits should lapse, as the provision for virtual visits should now provide sufficient flexibility on the basis that workforce capacity, the original reason for these flexibilities being introduced, is now no longer the concern that it was.
• Ofsted inspections
Ofsted inspections have not taken place since March so Ofsted will need a period of catch-up before it can resume normal service. As announced last week, Ofsted are planning to carry out a phased return to routine inspections. This will include risk-based assurance visits to children’s social care settings, based on the previous inspection judgement, the amount of time since a setting was last inspected and other information Ofsted hold about the setting. These assurance visits will occur between September 2020 and March 2021. At this point full graded inspections will recommence. I am therefore recommending that the suspension of the existing frequency regulation for Ofsted inspections be extended until 31 March 2021, to allow Ofsted to provide the most assurance, to the sector and the wider public, about the safety and care of children.
A short consultation will launch later this week. Following this consultation, should the decision be that some flexibilities should remain in place, I am committed to ensuring that Parliament has an opportunity to scrutinise any new statutory instrument which would be laid at the end of August and come into force on 25 September when the current regulations lapse.
Special educational needs
When I wrote in May, I also explained that we had made temporary changes to the law on education, health and care plans to allow local authorities and health commissioning bodies greater flexibility during this public health emergency. These temporary changes were designed to balance the needs of children and young people with the ability of local authorities, education providers and health services to respond to the outbreak, especially while the vast majority of those with EHC plans were not attending their usual school or college.
Firstly, on 1 May we issued a notice under the Coronavirus Act 2020 to modify the duty on local authorities and health commissioning bodies (e.g. Clinical Commissioning Groups) to secure or arrange the provision specified in EHC plans, to require them to use their ‘reasonable endeavours’ to do so. Since then, we have issued two further notices, for the months of June and July respectively. As part of plans for all children and young people – including those with EHC plans – to return to education settings full time from the beginning of September, we have announced that, unless the evidence changes, we will not be issuing further national notices to modify this duty following the expiry of the current notice at the end of July. We will consider whether any such flexibilities may be required locally to respond to local outbreaks. Our focus will increasingly be on supporting local authorities, health bodies and education settings as they work towards full provision being restored for all children and young people with EHC plans.
Secondly, since 1 May where a reason relating to the incidence or transmission of coronavirus makes it not reasonably practicable or impractical to meet a statutory time limit for a particular process relating to EHC needs assessments and plans, local authorities and their partners will need to act as soon as reasonably practicable (or in line with any other timing requirement in the regulations amended). These changes are currently in force until 25 September. We have been closely monitoring the impact of these temporary changes and are committed to keeping them in place for no longer than is necessary. We expect to decide next month as to how long the changes to timescales should continue. We will be seeking views and evidence from local authorities; parent representatives and specialist organisations to inform this decision.
We remain committed to ensuring that the lifting of the temporary changes is managed in a way that supports the needs of children and young people with special educational needs.
Supporting vulnerable children, whatever their needs, remains my top priority as we move into recovery. The COVID-19 pandemic has brought challenges to us all. There remains more work to do to ensure that vulnerable children do not suffer, and that the services that support them are able to do so as effectively as possible. I look forward to continuing to work with colleagues in Parliament, and with the many professionals dedicated to this cause.
Vicky Ford MP
Parliamentary Under-Secretary of State for Children and Families