The extended powers of the SEND tribunal
3 April 2018 saw the introduction of the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 and with it, the beginning of a 2 year First-tier Tribunal pilot.
The 2 year pilot (known as ‘the National Trial’) now gives the Tribunal the power to consider appeals in relation to the health and social care elements of Education, Health and Care Plans (“EHCPs”) whereas previously, only the education element of an EHCP could be appealed.
So what are the key things to know?
- The pilot began on 3 April 2018 so only applies to local authority decisions made on or after that date.
- There must be an ‘education’ element to any appeal, even where health or social care is being appealed.
- All appeals which include education, health and social care are expected to be listed for 2 day hearings (at the moment, they are normally only listed for 1 day).
- The Tribunal will only be able to make health or social care recommendations (rather than directions). They will be non-binding but any body choosing not to follow the recommendation must have good reasons for doing so.
- When the Tribunal makes a recommendation in respect of health or social care, it must send a copy of the recommendation to the relevant Clinical Commissioning Group (local authorities will be expected to notify the Tribunal of the relevant contact). There is no requirement in the regulations for the Tribunal to send the complete decision to the CCG – but there is the power to do so.
- The CCG or social care must provide a response to the recommendations within 5 weeks to the child’s parents and the local authority. The response should confirm what steps it intends to take and any reasons for not following a recommendation.
- The local authority must send the CCG’s or social care’s response to the Secretary of State within 1 week of receipt.
- Where the CCG or social care doesn’t implement the Tribunal’s recommendations, the likely routes of redress will be via the Local Government Ombudsman or Judicial Review.
Most people see the pilot as a good thing as it finally identifies one route for appealing against an EHCP and there is a general view that it will promote ‘joined up working’ between public authorities and departments.
Further detailed guidance is available from the DfE website.
For further information on this topic please contact Laura Thompson, or you can give us a call on 0345 070 6000.