SEND Tribunal National Trial - What you need to know

What is the SEND Tribunal?

• The Special Educational Needs and Disability Tribunal (SENDIST) is an independent specialist tribunal that hears appeals during the EHCP process. This includes appeals from parents or a young person (YP) whose request for an Education, Health and Care Needs Assessment is turned down, to appeals where parents or a YP are challenging the contents of a final Education, Health and Care Plan (EHCP) issued by their local authority (LA).
• This follows the implementation of the Children and Families Act 2014 requiring Statements of SEN for children and YP to be replaced with EHCPs.

What is the National Trial?

• Since 3 April 2018, SENDIST have been running a National Trial which allows parents and YPs who appeal to SENDIST about:
  • Their LA not issuing an EHCP;
  • The special educational needs, provision and placement in the EHCP;
  • Their LA not carrying out a re-assessment for a child/YP who has an EHCP;
  • Their LA not amending the EHCP following a review or reassessment;
  • Their LA’s decision to cease to maintain the EHCP

to also request SENDIST makes a recommendation about the health and social care needs and/or provision for the child or YP. In an EHCP this relates to Sections C and G and D and H respectively.

• SENDIST is able to make these recommendations about health and social care following implementation of the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017

Why did the National Trial start?

• Before the National Trial was in force, parents and YP could only challenge the educational parts of an EHCP, Sections B, F and I.
• The Government wanted to provide parents and YP with an option to have an initial single point of redress if they were unhappy with the educational, health and social care parts of their EHCP. The National Trial aims for LAs, health and social care to work more collaboratively, rather than parents or YP having to raise points of concern to different LA departments or the health service separately.
• The Trial started following a 15 month pilot that involved 17 LAs. During this time parents and YP could choose to have their appeals included under this pilot scheme for SENDIST to make recommendations on health and social care. Only 30 appeals lodged during this period were also part of the pilot, so the Government decided that more evidence was needed to review the effectiveness of the trial, hence the National Trial being implemented.

How long will the National Trial last for?

• It was previously scheduled to run until the 31 March 2020. It has recently been extended so it will now run until 31 August 2020, which means any parents or YP who want their appeal to be part of the National Trial will need to have lodged their appeal before 31 August 2020 to be eligible.
• Independent evaluation of the implications of the National Trial on parents, YP and LAs is ongoing. These findings will determine whether SENDIST maintains its powers, after the Trial has concluded, to make non-binding recommendations on the health and social care sections of an EHCP.  

How do I know if the National Trial applies in my LA?

• As set out in the name, the Trial applies nationally to all LAs within England. When you receive a decision letter from your LA giving you a right of appeal for any of the above examples the letter should explain about your right to appeal the health and social care sections of the EHCP, as well as the educational sections. All LAs must also provide this information on their local offers.

Do I have to appeal about both health and social care to be part of the National Trial?

• Not at all! You can appeal about either health, or social care, or both. You just need to indicate which sections you are appealing about on the SENDIST appeal form but your appeal must also include education alongside the health and/or social care elements.

What decisions can SENDIST make about health and social care?

• Under the National Trial SENDIST can only make non-binding recommendations about health and social care needs and provisions, to go in Sections C and G and D and H respectively. This is in comparison to the educational sections of an EHCP, where SENDIST’s decision is binding on the LA. These decisions will be made by an Order from SENDIST at the conclusion of an appeal.
• It is important to note that a hearing for a National Trial appeal can be scheduled to take place over 2 days, whereas for appeals just addressing the educational sections will usually be on 1 day. SENDIST can also direct if parties and their witnesses need to attend for both days of a National Trial hearing.

What happens once SENDIST has made their recommendations about health and social care?

• For health recommendations:
  • The relevant commissioning body (CCG) will be sent a copy of the decision;
  • The CCG must respond to the parent/YP and the LA within 5 weeks in writing and confirm what steps they will now take in response to the recommendations and given reasons if they are not going to follow all or some of the recommendations;
  • The LA needs to send a copy of this response to the Secretary of State within 1 week of receiving this.

•  For social care recommendations:
  • The LA will be sent a copy of the decision;
  • They must respond to the parent or YP within 5 weeks in writing and confirm what steps they will now take in response to the recommendations and given reasons if they are not going to follow all or some of the recommendations;
  • The LA needs to send a copy of its response to the Secretary of State within 1 week.

What happens if the CCG/LA does not follow SENDIST’s recommendations?

• It is expected CCGs and LAs will follow SENDIST’s recommendations, as SENDIST is a specialist tribunal.
• Unfortunately SENDIST does not have authority to challenge a CCG or LA who do not implement their health and social care recommendations. SENDIST cannot take any further action in this regard once they have issued their decision.
• In this instance the parent or YP can follow other routes of redress, such as a complaint to the LA or CCG through their respective complaints process, which can be escalated to the Local Government and Social Care Ombudsman or Parliamentary Health Service Ombudsman if required. 
• If neither of these options proves satisfactory there is a last resort of commencing Judicial Review proceedings, which can be costly and time consuming and we recommend seeking legal advice if you are considering this option.

Do I need legal advice before lodging an appeal under the National Trial?

Whilst you can lodge an appeal without legal representation we would nevertheless recommend seeking specialist legal advice so we can explain about specific points you will need to consider in your case and set out what to expect from the appeal process.

For more information about how the Special Educational Needs team at Boyes Turner can help you please email them at senexpertsolicitors@boyesturner.com.