The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 came into force on 3rd 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).
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.
- 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.
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.
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.
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.
For further information, you can access The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017