New SEND Tribunal Recommendations Power Will Be Introduced In April 2018


The Law Of… Improving The SEND Tribunal System

Currently, when parents or carers appeal against a Local Authority's decision relating to an Education, Health and Care Plan (EHCP) the SEND tribunal is unable to consider health and social care needs and provision.

But from April 2018, this is set to change.

Thomas Mitchell, Solicitor in Education and Community Care, explains how these changes could have a positive impact on families. 

What Is Going To Change?

From April 2018, health and social care needs and provision can be considered as part of an appeal when it is against:

  • A decision not to issue an EHCP
  • The content of an EHCP
  • A decision not to amend an EHCP following a review
  • A decision not to conduct a reassessment
  • A decision to cease to maintain an EHCP

Therefore, families will now be able to appeal against Sections B, C, D, F, G, H and I of an EHCP.

When the SEND tribunal makes a recommendation regarding health care needs and/or provision a copy of the decision will be sent to the responsible commissioning group. The group must respond in writing within 5 weeks to the child’s parent or young person confirming what steps it has taken in light of the recommendations and whether it has decided not to follow any recommendations explain why that is the case.

When the tribunal makes a recommendation regarding social care needs and/or provision the Local Authority must respond in writing within 5 weeks to the child’s parent or young person. It must confirm what steps it has taken in light of the recommendations and whether it has decided not to follow any recommendations, explain its reasons for doing this.  

"It appears that the Department for Education will collate responses as local authorities are required to send copies of responses to the Secretary of State for Education within 1 week of receiving or sending the response", Tom explains.

"Presumably, this is so that the Department for Education can measure the effectiveness of the pilot."

"It should be noted that the tribunal only has the power to make recommendations. So, it remains to be seen whether recommendations will be actioned and if not whether there is any recourse to challenge any failure to implement them either through legal action or other remedies."

How Will The Changes In April Affect Children And Young People With EHCPs?

The new law will apply to decisions that are made on or after 3rd April 2018, and so it is unlikely to apply (at least theoretically) this year to those who are transitioning between phases of education, such as those moving from primary to secondary school or those moving from school to post-16 education.

EHC plans should be issued for children moving from primary to secondary school by 15th February 2018 and by 31st March 2018 for young people going to a post-16 institution.

"But, in our experience and based on previous years, it is likely that LAs will fall short of issuing transition EHC plans on time", Tom reveals.

"Figures obtained through Freedom of Information Act requests for primary to secondary transitions show that last year 2,405 children in England did not receive their transition EHC plan on time – a shortfall of 17%."

"Data for last year is not available for post-16 transitions, but figures obtained for 2016 show that in England 9,700 EHC plans were not issued by the 31st March deadline – a shortfall of 65%."

Tom explains what you can do if your child's EHCP, or your EHCP, isn't delivered on time:

"It's great news that parents and young people will soon be able to challenge decisions relating to health and social care provisions, as this means they have a better chance of getting the right support for their needs."

"Unfortunately, we work with a lot of families who have been let down by their local authorities, whether it's not receiving an EHCP on time or not getting the right provisions or placement."

"The deadlines for EHCPs to be issued are fast approaching and local authorities have a legal obligation to meet them. If your Local Authority fails to deliver your child's plan – or your plan – on time, get in touch with our Education Law experts as soon as possible."

"We can help you take action and ensure that the plan is tailored to support all of your needs." 

To find out how we could help you please make a no-obligation enquiry or call freephone: 0808 129 3320.

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