The new SEND pilot recommendations - what's it all about?

The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 are coming into force on 3 April 2018. The DfE states that the new 2-year national trial will ‘extend the power of the special educational needs and disability (SEND) tribunal’ by allowing it to make non-binding recommendations on the health and social care aspects of Education, Health and Care Plans (EHCPs). Will the Regulations have any teeth? At first glance it appears not, but let’s take a closer look.

Background

The Children and Families Act 2014 was to bring together education, health and social care services for children and young people. However, parents and young people can only appeal to the First-tier Tribunal against the educational aspects of their EHCPs. The only legal remedy for health and social care is judicial review. The new pilot attempts to bring all three services under the First-tier Tribunal’s jurisdiction.

Points to note

• The pilot Regulations only apply to local authority (LA) decisions made on or after 3 April 2018 or EHCPs issued or amended after 3 April i.e. not to those EHCPS that were finalised by the 31 March 2018 deadline for post-16 and Statement transitions.
• The Tribunal can make health and social care recommendations that relate to the child/young person’s special educational needs (SEN)  in the following types of appeals:
  • LA refusal to issue a Plan
  • Content of a Plan (description of SEN, educational provision and name  and type of school – Sections B, F and I)
  • LA decision not to reassess following a request to do so
  • LA decision not to amend or replace the Plan following a review or reassessment
  • LA decision to end the Plan
• The Tribunal can only make recommendations where there is an education element to the appeal i.e. not where the issue is only related to health and/or social care. This means that if the education element of the disagreement is resolved though mediation, then an appeal against just the health and/or social care elements will not be permitted.
• Remember that any provision for education and training, whichever body delivers it (education, health or social care) is educational provision. Parents and young people must take extra care when considering whether they can/cannot appeal. Many LAs will place provision for education/training under health or social care provision and some parents/young people may mistakenly believe that they have no right of appeal.

What happens after the Tribunal makes a recommendation?

The Tribunal must send a copy of its recommendation to the responsible commissioning body (health and/or social services). The Tribunal can also send a copy of its decision of the whole appeal but does not have to. Health and/or social services must respond in writing to parents or the young person and the LA within 5 weeks, setting out the steps that will be taken and reasons why any of the recommendations will not be followed. The LA must send a copy of the response to the Secretary of State within a week of receipt.

What impact will the pilot recommendations have?

This is the second time that similar regulations have been made. The last time was optional for LAs. Seventeen LAs chose to take part in the last pilot from June 2015 to August 2016. A review of the pilot scheme showed that the Tribunal’s involvement assisted in resolving health/social care issues in several cases but the problem was that there were insufficient numbers of cases to make any solid findings. Out of only 30 cases in total, only 9 went on to a hearing). On a positive note, there was evidence of more joint working and the Tribunal’s involvement assisted in promoting resolution before the hearing. Most stakeholders supported the principle of a single route of redress but with only 30 appeals during the first pilot, a national trial is now needed to evaluate the impact of non-binding recommendations on health and social care.

The DfE has said that there will be a clear expectation that recommendations will be followed and if not followed, then parents and young people can complain to the Ombudsman or seek judicial review, which brings us back to pre-pilot days. A successful judicial review would have to show an error of law in the way the LA approaches its consideration of the recommendations, for example, an irrationality or failure to take all material considerations into account.

Ofsted and the CQC will be considering the responses to Tribunal recommendations as part of their pre-inspection analysis.

An interim review of the pilot will take place after a year and a full impact review will take place after 2 years after which a decision will be taken on whether to continue it.

Potential areas of concern

• LAs have already expressed concern that there will be little time to collate additional information from health and/or social care. Remember that the appeal timetable, 12 weeks, is relatively short and information should already have been provided pre-appeal. The problem with health and social care not contributing to requests for information or giving information that is not sufficiently detailed is unlikely to disappear. The 2015/2016 pilot trial may have found some success but that was only with 30 cases over a 15 month period. The real test will be 100s of cases over an extended period and offset against a background of LA financial cuts.
• Will health and social care want to be joined in on appeals? The guidance states that LAs will be required to provide evidence from health and social care and the Tribunal may allow additional witnesses to address these issues. If so, that may increase the complexity of appeals and make them run over to several days’ hearing, thereby increasing the cost for parents and young people. The cost to parents of representation and witnesses over a number of days would create an unequal playing field.
• Health and social care required to respond to the Tribunal’s recommendation. Changes in practice and procedure are possibly do-able but what is to stop these bodies simply stating that they cannot afford to make the recommended level of provision (after careful consideration, of course)?
• How effective will the recommendations be against a backdrop of statutory budget cuts? Will we simply see ‘soft’ recommendations followed through with any provision costing money left on the side?

We hope the pilot Regulations will lead to lasting changes to the way we support children and young people with complex needs. The pilot is certainly a start in the right direction but we suspect the path ahead will not be a straight one.

The full Regulations can be found here and the DfE’s guidance can be found here.

If you discuss this or any similar problems with your child’s EHCP then please contact us at senexpertsolicitors@boyesturner.com – our expert SEN solicitors are here to help.