The Special Educational Needs and Disability Tribunal (SENDIST) is changing. A national trial is being launched from 3 April 2018 which means it will be able to look at the Health and Social Care aspects of an Education Health and Care Plan (EHCP).
Currently, appeals to the SEND Tribunal can only relate to Sections B, F and I of the child or young person’s EHCP meaning that only educational matters can be dealt with. When amending the law in relation to special educational needs in 2014, it was hoped that the EHCP would also incorporate aspects of Health and Social Care (hence Education, Health and Care Plan), however this has simply not been the case.
From June 2015 to August 2016 a pilot took place which extended the powers of the Tribunal to make recommendations about the health and social care aspects of the EHCP. There were 30 pilot appeals, 9 of which went on to a full hearing. The March 2018 guidance on the national trial indicates that the results were promising:
- Health and social care disagreements were resolved and the extended powers acted as a ‘lever’ to promote resolution prior to the hearing
- The extended powers simulated more joint working across the education, health and social care and increased stakeholders’ knowledge and understanding of the system
- Most stakeholders, including parents and LA’s, supported the principle of a single route of redress
Whilst these results seemed to indicate a success for the pilot, there was simply not enough evidence to make a robust assessment of its impact as only 30 appeals took place during the 14 months. As such, the National Trial will be running for two years from 3rd April 2018. The aims of the national trial are to:
- Create a more holistic, person-centred view of the child or young person’s needs at the Tribunal
- Bring appeal rights in line with the wider remit of EHC plans
- Encourage joint working between education, health and social care commissioners
- Bring out positive benefits to children, young people and parents
Whilst the aims of the trail seem encouraging, specialist SEN solicitors are concerned that the recommendations made by the Tribunal in relation to health and social care are, by their nature, non-binding. There will therefore be cases where the Local Authority of the Clinical Commissioning Group (CCG) consider the recommendations, but decide simply not to implement them. In these instances, the remedy would be a complaint to the Local Government Ombudsman, or in serious and exceptional cases, Judicial Review.
Cases for the national trial can only be brought following a final EHCP dated on or after 3rd April 2018, or a decision letter from the Local Authority dated on or after 3rd April 2018 and must be started with an education element, however if this aspect is agreed early, health and social care can be dealt with by the Tribunal.
The Tribunal timetable in relation to cases under the national trial will remain largely the same, however it is hoped that an increase in Case Management and the power of the Tribunal to make bespoke recommendations (such as recommending that they will want to see Occupational Therapy advice) will have the effect of compelling evidence sooner and sharing the burden between parties in instructing a sufficient number of experts.
Week 0 – The appeal is registered and the notice to appeal is sent. There will be a telephone Case Management hearing at this stage.
Week 6 – The Local Authority must respond to the appeal – this gives them two weeks longer than they currently have to allow time for health and social care issues to be properly dealt with.
Week 7 – The final evidence deadline
Week 8 – There will be a further Case Management hearing at this stage to refine the issues in dispute
Week 10 – The bundles will be produced by the Local Authority at this sage which should be sent to the Tribunal and all parties
Week 12 – The final hearing will take place. These will be automatically listed for a two-day hearing. The panel will consist of three members; a judge, a SEN expert, and a health/social care expert
Appeals against the Local Authority’s decision to refuse to assess a child or young person will not come under the national trial but can certainly still be appealed against. Appeals against a Local Authority’s decision not to assess your child can be difficult and it can be useful to take specialist legal advice before lodging your appeal. We, as specialist SEN experts, have years of experience appealing against decisions of the Local Authority, and would be happy to help with your appeal.
It is hoped that the two year trial will be as successful as the pilot, and there is no doubt that more extensive evidence will be produced following it. It is wondered, however, how often the Local Authority and CCG will actually consider and implement the non-binding recommendations of the Tribunal.
The national trial will affect thousands of appeals over the next two years. If you need assistance appealing against the Local Authority’s decision regarding the EHCP process, contact our specialist team of education solicitors on 0333 202 7175. Our education lawyers have years of experience dealing with these appeals and would be happy to help you through the process.