What is the outcome of the National Trial?
The National Trial started in April 2018 and continued until August 2021. The National Trial was to test the extended powers for the SEND Tribunal. The department commissioned an independent evaluation of the National Trial. This found broadly positive evidence in support of the Tribunal’s extended powers. Find more about the national trial impact here.
As findings of the trial are boradly positive the Government has confirmed that they are continuing the extended powers of the First-tier Tribunal (SEND) to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHC) Plans.
Before the Single Route of Redress SEND Tribunal Extended Powers you had only been able to appeal the educational aspects of EHC Plans. The continuation gives you the opportunity to raise all your concerns about an EHC Plan in one place. The extended powers given to the SEND Tribunal, maintains your right to request recommendations about the health and social care needs and provision specified in EHC Plans as well as any educational aspects if you are making a SEND appeal.
It is only possible for the Tribunal to consider the health and or social care aspects of the EHC Plan where you are already making an appeal about education aspects of the EHC Plan. The education aspect must remain a live aspect of the appeal throughout the tribunal.
You can make an appeal to the SEND Tribunal if you are unhappy with:
- a decision not to issue an EHC plan,
- with the special educational content or
- placement in the plan,
You are also able to request recommendations about the health and social care content of the plan at the same time if there is an education element. to your appeal. This means the Tribunal are able to take a more holistic, person-centred view of the needs of the child or young person.
This does not stop you complaining about other aspects of your disagreement through other complaint processes. You can seek advice about the different routes available, to raise concerns including from your local Information Advice and Support Service (IASS). In Hackney this is Hackney SENDIAGS.
If the SEND Tribunal makes a recommendation about health or social care elements of an EHC Plan, this is not legally binding. But the local authority and or health commissioner is generally expected to follow such recommendations. Where there has been a decision to not followed, the tribunals recommendations the reasons for not following them must be explained and set-out in writing to you and to the Department for Education through the evaluators.
If they are not followed, you can complain to:
- the Local Government and Social Care Ombudsman (LGSCO)
- or Parliamentary and Health Service Ombudsman (PHSO)
- or seek to have the decision judicially reviewed.
Further information on the roles of these bodies can be found on their websites via the links above.
When can a parent or young person request recommendations about the health and social care elements of an EHC plan?
You can request the Tribunal makes recommendations about the health and or social care aspects of EHC plans as part of an appeal relating to:
- the description of the child or young person’s special educational needs in an EHC Plan
- the special educational provision specified in an EHC plan
- the school or other educational institution named in an EHC plan
- a decision by the local authority not to issue an EHC plan
- a decision by the local authority not to carry out a re-assessment for a child or young person who has an EHC Plan
- a decision by the local authority not to amend an EHC Plan following a review or re-assessment
- a decision by the local authority to cease to maintain an EHC Plan
The SEND Tribunal extended powers places responsibility on local authority SEND teams to:
1. Inform parents and young people of their new rights through decision letters and the local offer (website)
2. Provide evidence to the Tribunal from the health and social care bodies in response to any issues raised within the timeframe set by the Tribunal, seeking permission to bring extra witnesses to the hearing as necessary
It also places responsibility on health and social care commissioners to:
1. Respond to any request for information and evidence within the timeframe set by the Tribunal
2. Send a witness to attend the hearing as required
3. Respond to the parent and or young person and the LA SEND team within 5 weeks of a recommendation being made, setting out the steps they have decided to take or giving reasons why they are not going to follow the recommendation.
If you wish to appeal against a local authority decision on any of the grounds above and want to request that the Tribunal considers your concerns about the health and or social care aspects of the EHC plan, you should follow the process for bringing an appeal to the Tribunal and tick the box on the form relating to a health and or social care appeal.
Before you can register an appeal with the Tribunal, you must contact a mediation adviser within two months of the LA decision you wish to appeal and consider whether mediation might be a way to resolve your disagreement with the LA.
If you want to appeal only about the school or other institution named in the EHC Plan you do not have to contact a mediation adviser.
You can go to mediation about the health and social care elements of an EHC Plan, but this is not compulsory. You can request recommendations about health and social care issues without having to receive mediation advice or attend mediation about those issues, provided there is also an education issue about which you are appealing.
Once a mediation adviser has been contacted, or once you have taken part in mediation, you will be issued with a certificate. This will be necessary if you are still unhappy and wish to progress to an appeal with the Tribunal.
An appeal to the Tribunal must usually be made within 2 months of the decision about which the appeal is being made or 1 month following the issuing of the mediation certificate, whichever is the later.
Mediation provides an opportunity for us to resolve disagreements and it can be completed more quickly than an appeal.
If mediation resolves the educational issues, you will not be able to appeal to the Tribunal on any health and or social care aspects of the EHC Plan.
It does not affect your right to make an educational appeal.
Some aspects of the disagreement can go to appeal even when other aspects are resolved.