The National Trial which extends the powers of the First-tier (SEND) Tribunal to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHC) Plans will begin on 3rd April 2018. The Trial is due to last for two years. This means that for the first time parents/young persons will be able to ask the Tribunal to make recommendations in relations to Sections C, D, G, H1 & H2 of an EHC Plan, in addition to considering the educational aspects (B, E, F & I).
Boring law bit: you can find the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 “the Recommendations Regulations” at http://www.legislation.gov.uk/uksi/2017/1306/made/data.pdf and the associated guidance at https://www.gov.uk/government/publications/extended-powers-send-tribunal-national-trial
In case you are wondering why the National Trial doesn’t come into force until 3rd April, local authorities already have two huge deadlines on 31st March 2018 that they must meet. Firstly, all children/young persons transferring from a Statement of Special Educational Needs (SSEN) must be in receipt of their Final EHC Plan and all young persons transferring to post-16 placements in September, must be in receipt of their Final EHC Plan detailing the placement they are to attend. It was therefore sensibly thought out that due to the extreme pressure on Local Authorities (which we know from research they are struggling to meet) the new Trial under which they have additional duties, should only come into force once those deadlines have passed.
Is the National Trial a good thing?
First and foremost, for parents/young persons and all of those working in this area, the ability to be able to request recommendations about the health and/or social care aspects (needs and provision) specified in an EHC Plan is potentially very exciting. For example, this means that if you are unhappy with your local authority’s decision not to issue an EHC Plan, then alongside appealing that decision you can also ask the Tribunal to make recommendations about the health and social care needs/provision that should be specified in the EHC Plan.
It is the first time that parents/young persons have had one single place (or ‘route of redress’ as the Government are calling it) to raise all of their concerns about an EHC plan rather than just the educational aspects. However, the Trial does not come without its difficulties.
Key points for parents/young persons:
The starting point is that, as the National Trial does not begin until 3rd April 2018, only Local Authority decisions or EHC Plans issued or amended after this date will be included. In simple terms, if your decision letter or EHC Plan is dated BEFORE 3rd April and you are dissatisfied with the health/social care sections, you will need a new Right of Appeal dated on or AFTER 3rd April 2018 to be able to ask the Tribunal to consider making recommendations.
Top tip – if you are currently awaiting a decision/EHC Plan from your Local Authority and anticipate that you will be unhappy with what they are offering in terms of health/social care, do NOT chase for the decision until 3rd April – that way you can address the health/social care aspects as part of your Appeal.
Despite the additional powers granted to the SEND Tribunal, they will only be able to consider the health/social care aspects of an EHC Plan, if the parent/young person is already making an Appeal in relation to the educational aspects (B, E, F and I). You CANNOT request recommendations for health/social care alone. There must first be an educational element to your Appeal and the Tribunal can then consider the health/social care aspects as part of that Appeal.
The National Trial applies to all types of Appeals except Refusal to Assess. You can ask for recommendations in relation to health/social care for all other Appeals, including:
Content Appeals (the description of a child/young person’s needs – Section B, the provision specified – Section F or the School or other institution named – Section I);
A decision of the Local Authority not to issue an EHC Plan;
A decision not to carry out a reassessment for a child/young person with an EHC Plan;
A decision not to amend an EHC Plan following an Annual Review; or
A decision to cease to maintain an EHC Plan.
Perhaps the biggest concern is that while recommendations the Tribunal may make when considering the health/social care aspects should ‘generally be followed’, they are not legally binding - unlike binding decisions on education. Thus, while we can force a Local Authority to carry out the provision a Tribunal has ordered in Section F of a child’s EHC Plan, if Local Authorities/Health Commissioners refuse to carry out the Tribunal’s recommendations in relation to health/social care they are legally able to do so. The Recommendations Regulations are clear that if a health/social care recommendation is not to be followed, the local authority/health commissioner must set out their reasons for not doing so to the parent/young person (in writing). This must be done within five weeks. If local authorities/health commissioners do NOT follow the recommendations, the important point to note is that parents/young persons CANNOT go back to the Tribunal but would instead have to complain to the Local Government and Social Care Ombudsman (LGSCO) or seek to have the decision Judicially Reviewed. I will be doing a blog post to explain what judicial review is and when it may be used, next month.
Another big concern (and one I have raised directly with the Lead Judge of the SEND Tribunal) is the additional costs parents may incur. One thing that is not mentioned in the Regulations or the guidance but was disclosed at the most recent SEN User Group meeting is that cases on the National Trial will initially be listed for a two-day Tribunal Hearing. This could have serious cost consequences for parents.
These extra costs mean that if you are a parent instructing a Solicitor/Barrister to represent you, this is an additional day’s fees. Even if you are representing yourself, the cost has to be considered for your witnesses to attend for two days, which we know could be near impossible to arrange for good experts who have very busy diaries.
On the flip side, one thing that was not discussed at the SEN User Group meeting but is mentioned in the Guidance, is that LAs and CCGs “will be reimbursed for reasonable costs incurred in taking part in the trial. A grant will be awarded for SEND Tribunal trial activity up to the total value of £4,000 per case for the period of the trial” – seemingly recognising the additional costs a case involved in the National Trial may incur, but with no such compensation for parents.
Unfortunately, we do not yet have an answer as to how much more expensive cases on the National Trial will be in comparison to a normal Tribunal Appeal but it is something I will be keeping a close eye on.
As usual, with many of these things, although the National Trial and the Tribunal’s extended powers appear very encouraging, they should not proceed without caution. We do not yet know how many parents will seek recommendations as part of the Trial, or how effective it will be. Many local authorities may follow the recommendations, but many may not.
My concern is for those parents who do not have legal representation, trying to navigate a wholly new system when there are so many customs to comply with.
Similar to when the Children and Families Act 2014 was first introduced, a system that was supposed to make things ‘simpler’ for parents, ‘easy to understand’, to ‘encourage collaborative working’ and consider a more ‘holistic view of the child’ is also what this new National Trial strives for – we just have to hope that unlike the Children and Families Act, the National Trial achieves that aim.