By Nicole Lee, Specialist Solicitor at SEN Legal
Whilst the United Kingdom (and indeed the world) does its best to adjust to a life in the wake of COVID-19, and the majority of Courts and Tribunals grinds to a halt, the SEND Tribunal has in fact coped extremely well. You can see our full update on the SEND Tribunal User Group meeting here for the full update.
Therefore, whilst it’s absolutely true that there remains a lot of uncertainty at what the future will hold, the legal position in respect of Special Educational Needs remains largely unchanged. The Children and Families Act 2014 remains in force in the same way, the deadlines under the SEND Regulations 2014 remain in force in the same way, and the SEND Tribunal continues to function normally (in some cases, better than it was pre-COVID-19).
It’s really important that parents are aware of this fact, as understandably, the COVID-19 pandemic has caused problems with missed deadlines and delays in delivered provision across the country. However, whilst the situation means it may well be reasonable to give your Local Authority a short grace period in respect of the deadlines (such as getting a decision following your last Annual Review), COVID-19 is not a blank cheque the Local Authority can use to stop issuing decision, and thereby, deprive children and young people or their right to Appeal to the SEND Tribunal.
This is of particular importance to children and young people who have uncertainty about their placement from September 2020, and those who wish to apply to join the National Trial when their Appeal is submitted.
The reason this is important, is that the improved turnover of Hearings at the Tribunal, means that Rights of Appeal received in the immediate future have a reasonable chance of getting through the Tribunal before September 2020. The Tribunal are bringing some Hearings forwards due to their increased capacity and are also intending to sit through the holiday periods, meaning that time is of the essence in obtaining your Right of Appeal.
Secondly, time is of the essence in respect of those who wish to join the National Trial when their Appeal to the Tribunal is extended. From the 3rd April 2020, the SEND Tribunal entered into a “National Trial” whereby children and young people could request that the SEND Tribunal consider the content of the Health and Social Care sections of their EHC Plans, as well as the educational sections.
The sections would be treated differently by the Tribunal, as the Tribunal would continue to make binding orders about the contents of the educational sections (B, F and I), and could additional make non-binding recommendations about the content of the health and social care sections (C, D, G, H1 and H2). However, if the Local Authority and/or Health Authority decline to follow those recommendations, they must provide lawful reasoning for doing so, or risk a challenge by way of Judicial Review. The National Trial has therefore resulted in a single right of redress for children and young people with special educational needs and disabilities who also have health and social care needs.
However, you may note that the National Trial was initially for a 2-year period, starting 3rd April 2018. The National Trial should therefore have come to an end on 3rd April 2020. The SEND Tribunal have confirmed that they intend to grant a short extension to the National Trial period, up to 30th August 2020. It may be extended beyond that point, but there is no guarantee.
Those who wish for their Appeal to be included on the National Trial must obtain their Right of Appeal, and submit their Appeal, before the 30th August 2020. At this point, Appeals submitted after the 30th August 2020 will not be eligible for the National Trial, and will only be able to be registered as standard Tribunal Appeals.
Before you can Appeal, you need obtain your Right of Appeal from the SEND Tribunal, which requires some form of decision being issued by your Local Authority. If your Local Authority is using the COVID-19 as an excuse not to issue decisions, then you will not have a Right of Appeal, and may be deprived of the opportunity to join the National Trial.
These are difficult times for us all, Local Authorities included. However, as the SEND Tribunal process continues to roll as best as possible, so too should Local Authorities. Do not allow your Local Authority to delay on issuing your Right of Appeal beyond what you deem reasonable, particularly if you’re in a year of phase-transfer, or if you want your Appeal to be included on the National Trial.