Expanding the powers of the SEND First-tier Tribunal

On 26 October 2017 the Minister of State for Children and Families, Robert Goodwill, announced the expansion of powers of the SEND First-tier Tribunal (FTT). The changes will enable judges to make non-binding recommendations on the health and social care aspects of Education, Health and Care Plans (EHCP) alongside appeals on the education aspects of the Plan. The national trial is to start in March 2018.

When the Children and Families Act 2014 came in force in September 2014, there was disappointment that there were not stronger remedies for parents seeking redress for health and social care alongside the educational aspects of their child’s EHCP. Currently, the FTT can only make orders with respect to Section B (description of special educational needs), Section F (educational provision) and Section I (name of placement and/or type of placement). There are limited exceptions developed by case law – see LB of Hillingdon v SS and Others (SEN) (2017) & P v Worcestershire County Council (2017)). The FTT cannot currently make any orders in respect of health of social care provision set out in the Plan.

To start the process of looking into how this could be remedied, the SEND Tribunal ran a limited pilot appeal scheme from June 2015 to August 2016 involving only 17 out of 152 Local Authorities that had elected to take part. The pilot allowed judges to consider concerns about health and social care alongside appeals involving education, enabling judges to make non-binding recommendations for health and social care.  The results of the pilot were received well. The outcome can be read from page 181 in the Department for Education’s ‘Review of Arrangements for Disagreement – (SEND) Research report, March 2017’. Understandably, however, because only 17 Local Authorities took part, the findings were limited due to the very small number of appeals heard. More evidence needed to be gathered before deciding whether it should be made a permanent part of the SEND FTT’s remit. The new trial will start in March 2018 and will run for two years following which a decision will be taken on its future use. Regulations will set out new duties on all Local Authorities and health commissioners, similar to the duties under the previous pilot. Under the previous pilot the Tribunal could recommend that the EHCP should be amended or include a description of the child/young person’s social care and/or health needs and the level of provision required.

In preparation for the launch in March 2018, the Department for Education (DfE) has written to all Local Authorities and key health commissioners and is organising training to clarify duties and provide further detail on what will be expected to prepare for the trial and during the trial itself.

The DfE has stated that the aim of the national trial is to enable the Tribunal to take a more holistic view of the child or young person’s needs, encourage joint working, and bring positive benefits to families.

Where the pilot recommendations could be particularly helpful

We think that a Tribunal Judge’s recommendations could be helpful in the following types of situations:

• Where there are poor quality professional reports that do not fully quantify and specify the level of support required to meet educational needs
• Where there are late or non-existent reports from professionals (e.g. speech and language therapist, occupational therapist, physiotherapist, Child and Adolescent Mental Health Services (CAMHS), social care services)
• Disagreement about the child/young person’s need for provision from CAMHS and adult mental health
• Failure of social care to carry out social care assessments
• Funding disagreement about residential placements – particularly for young adults who require bi-partite/tri-partite funding.

What do we think?

The analysis of the first trial shows that the pilot encouraged more joint working across all three areas. It can also act as a lever to encourage reaching resolution before the hearing.

Importantly, the use of telephone case management can be helpful in ensuring both parties have thought of all areas that need to be considered and collated sufficient evidence to enable decisions to be made. We often find that parties and professionals from all three disciplines do not engage with the appeal until the hearing itself. It is hoped that this might be avoided with good use of active case management.

Whilst the pilot recommendations are non-binding, the DfE has said (at page 28 of the ‘Review of Arrangements for Disagreement – (SEND) Research report, March 2017) that:

‘While the First-tier Tribunal’s recommendations are non-binding for health and social care partners, we would generally expect that recommendations are followed. If recommendations are not followed, families would be able to complain to an Ombudsman or in exceptional circumstances, seek to have the decision judicially reviewed.’

It remains to be seen how many parents have to follow through Tribunal recommendations in this way. Parents should not have to do this after having just gone through a Tribunal appeal.

It is hoped that Local Authorities and health commissioners will learn from working more closely together and that the DfE will follow progress carefully so that guidance can be given swiftly to set all bodies on the right track. Swift guidance and action has been lacking somewhat with the changes brought about with the introduction of EHCPs. Many parents voice concerns about the lack of accountability for Local Authorities that fail to adhere to the SEND Code of Practice and DfE guidance.

In our view the pilot recommendations are a step in the right direction. The Children and Families Act did not go as far as many parents would have hoped but this is a way of bringing it back in line, albeit in a ‘diluted’ format. It will be interesting to see how far the recommendations will be followed and what is learnt when the scheme is reviewed three years from now.  Hopefully, we can take forward what is learnt to improve outcomes for children and young people with SEND but, for some, it will be too late.