Joining up Education, Health and Social Care

The new Special Educational Needs and Disability (SEND) Pilot Regulations giving the SEND Tribunal the ability to made recommendations on health and/or social care aspects of the Education, Health and Care Plan (EHCP) will apply to decisions made from 3 April 2018.

We are receiving an increasing number of enquiries from parents where greater cohesive working is clearly needed across all three statutory services to make a placement work. It is hoped that the recommendations will assist in bringing services together but what do parents do when, for example, their child has complex health needs and the NHS/clinical commissioning group refuses to fund health provision which parents and the school say is  required to make the placement work?

• Will a recommendation from the Tribunal reverse that decision? Unlikely, in our view.
• Will a recommendation result in some creative solutions? Possibly.
• Will a series of recommendations cause a flurry of activity in the higher echelons of power? We hope so, because that is what is desperately needed for children with the most complex needs.

What the law says

Under the Children and Families Act 2014, the Education Act 1996 and by the provisions governing the format of an Education, Health and Care Plan (EHCP) there is a clear division of the responsibility between the relevant public agencies (Local Authority (LA), Clinical Commissioning Group (CCG) and Social Services) for education, health care and social care of children and young people.

Section 63(2) of the Children and Families Act 2014 requires that the LA ‘Pay any fees payable in respect of education or training provided for the child or young person at the school, institution or place in accordance with the EHC[P]’.

East Sussex County Council v KS 2017

This case highlights the dysfunctional nature of the current funding and arrangement of provision for children and/or young adults with complex needs.

The case concerned a little girl, L, aged five at the time of the Upper Tier Tribunal hearing. She was born prematurely with considerable needs and her start to education has been significantly delayed.

Chailey Heritage School, a non-maintained special school, had made an offer of a place to L subject to the LA paying the education fees and the CCG meeting the clinical fees. However, the CCG refused to pay the clinical fees quoted by the school as the CCG deemed the provision was unnecessary.

The LA had named an alternative placement in the EHCP.  L’s parents appealed to the First Tier Tribunal against the contents of Sections B, F and I of the EHCP stating that the school named by the Local Authority (LA), was unable to meet needs.

The First Tier Tribunal agreed and they ordered Chailey Heritage School to be named as L’s placement in section I.

 The LA appealed to the Upper Tier Tribunal on the basis that:

• The LA should not be the finder of last resort for healthcare provision where the NHS is responsible for assessing need and when doing so concluded it was not required.
• The Tribunal has no authority to order the LA to fund non-educational elements of provision. Therefore, the First-Tier Tribunal was unable to name Chailey Heritage School as it unlawfully conferred a duty upon the LA to fund non-educational provision.

The Upper Tier Tribunal found that the First Tier Tribunal had correctly assessed whether LA’s named school could adequately meet L’s needs. They had applied the relevant test and were entitled to find that the school could not make adequate provision to meet those needs. However, the Upper Tier Tribunal ruled that the First Tier Tribunal had erred in ordering the naming of Chailey Heritage School in Section I. The CCG did not accept that all the services to which the clinical fees related were required and had refused to provide the funding for the school’s clinical fees. The Upper Tier Tribunal ruled that the LA could not be lawfully ordered to pay these clinical fees by the First Tier Tribunal having named the school. The case was ordered to be remitted to the First Tier Tribunal for re-hearing.

Implications of the decision

This case may have implications for others where there are distinct elements of school fees attached to educational and non-educational (health/medical) provision which are both provided by the school. If the provision is educational and appears in Section F of the EHCP then the Tribunal will be able to order the placement. Funding will be then required from the LA. However, where provision is deemed to be health provision and therefore non-educational, it will be stated within Section G of the EHCP. In the absence of agreement of the CCG to fund the provision in Section G, the LA cannot be ordered to fund it. The child or young person will therefore be unable to take up the school place unless funding agreement is reached.

As this case has not fallen under the pilot scheme the Tribunal was unable to make recommendations regarding health and social care. This is unfortunate, as it may have been a case where the limited powers given by the pilot might have assisted. As it is, the result in this case was a further delay as the case was remitted back to the First Tier Tribunal for a rehearing. This is surely not in the spirit of the collaborative multi-agency approach promoted by the 2014 changes.

You can read about the new SEND Tribunal pilot here and read the full East Sussex case here.

If you would like to talk about your child’s special educational needs/additional learning needs then please contact us at senexpertsolicitors@boyesturner.com – our expert SEN solicitors are here to help.