Boyes Turner Annual SEN conference 2017

“The second conference I have attended and they get better and better. Really useful.”

“Really good – please make it a regular thing.”

“Thank you for another excellent seminar.”

Boyes Turner SEN team hosted their annual conference on 28 September 2017

Laxmi Patel, Head of Education at Boyes Turner, introduced the seminar.

Aileen McColgan, Barrister at Matrix Chambers, gave us an informative presentation on Education, Health and Social Care in post-19 provision.

Janata Ali, Special Educational Needs (SEN) specialist with 13 years of experience in education law who joined the Boyes Turner education team this year, spoke about the top five issues encountered in Tribunal appeals from a claimant solicitor’s viewpoint. She also spoke about developments in SEN including an update on the Department for Education statistics for children with SEN, and the Ministry of Justice statistics for SEN appeals and their outcomes. Finally she focussed on updates in relation to Tribunal appeals and processes both now and to come.

Below are a few questions and answers that were discussed:

Q: Our understanding is that transport can be included in an Education, Health and Care Plan (EHCP) in exceptional circumstances – is this right, and can this be included in Section F?

A: There is no authority that explicitly states as a matter of law that home/school transport can never be specified in an EHCP. Transport can be included in an EHCP but only in exceptional cases where the child has particular transport needs.

Circumstances that might be considered exceptional could include:

• The need for a 1:1 with medical expertise to travel with the child.
• The fact that the child needs accompanying throughout a journey.
• A driver, requiring training in order to be able to use an epi-pen.

It will very much depend on the facts of the case.

The benefit of getting transport into Section F of the EHCP is that it would be funded as part of the educational provision by the Local Authority (LA) rather than a contribution being requested from parents as is often the case for young people over 16 years.

The recent case of Staffordshire County Council v JM [2016] UKUT 0246 (AAC) considered this question. Laxmi reviewed this case in a recent article.

Q: Is it true that there is going to be a further pilot scheme for appeals, where the Tribunal will be able to consider social and health recommendations as well?

A: Yes, the first pilot scheme that ran from 1 April 2015 to 31 August 2016 is about to be extended to a national trial to start in early 2018.  It is expected that this will run for two years and will incorporate all LAs. This pilot will allow the Tribunal the power to make recommendations in relation to the health and social care needs and provision of children and young people in appeals against a local authority concerning the EHCP. This will apply to all rights of appeal, except a refusal to assess.

However, it should be noted that these recommendations are unenforceable against the LA, Health or Social Services. It was agreed that it was disappointing that there continues to be no right of appeal against the health and social care aspects of the EHCP, although the ability of the Tribunal to make these recommendations may be a small step in the right direction.

Q: Is it true that the Tribunal is considering procedural changes in relation to bundles? 

A: The Tribunal is proposing to update bundle guidance and capping the number of pages of evidence that each party can automatically submit in an appeal. The details of this are still to be confirmed.

Q: What if there is some additional evidence that needs to be submitted and is relevant to the case, but would exceed the page number cap?

A: It is likely that the tribunal would expect the party to apply for this evidence to be accepted. However, the party submitting the evidence would have to explain clearly why it is necessary.  It is thought that by capping the bundle size it will make parties consider more carefully the quality and quantity of the evidence that they are submitting and avoid repetition and inclusion of information that is not valuable to the appeal. However, we are still waiting to have details of the Tribunal’s proposals confirmed.

Q: What is the situation when an appeal for a particular school is successful but where the LA challenges that decision via an appeal to the Upper Tribunal? Can the child or young person start the placement agreed by the First-tier Tribunal or do they have to wait until the decision of the Upper Tribunal?

A: We agree that this is a difficult issue. Theoretically, if there is a final EHCP naming a school (as ordered by the First-tier Tribunal), then that school must admit the child. However, there is a risk that the placement will come to an end if the LA’s challenge at Upper Tribunal is successful. Parents must consider this risk when deciding whether or not their child should start at the school. Often the child or young person will remain at home or at their old school until the matter is resolved.

Q: Can certain psychological and mental health interventions be considered provision?

A: Yes, provision is not restricted to acquisition of knowledge. If it helps to train and educate a child or young person or allow them to access the curriculum then it can be provision within Section F. A couple of examples are:

• Mindfulness training which requires principles and practice to acquire these skills.
• Cognitive behavioural therapy that trains the child or young person on how to deal with anxiety.

In these examples the child or young person is receiving training and is learning strategies that will hopefully help them in the classroom and the community.

However, hypnosis, which requires no learning or training by the child or young person, is unlikely to be educational provision.