From April 2018, the Special Education Needs and Disabilities Tribunal has been running a trial period whereby its powers were extended beyond disputes in relation to education, to include health and social care issues too. This is referred to as the “National Trial”. The Department for Education have now confirmed the extended powers given to the SEND Tribunal in the National Trial, will continue and become permanent from 31st August 2021.
The SEND Tribunal now represents a single right of redress for children and young people with special educational needs and disabilities who also have health and social care needs. It is an important step in ensuring services are “joined up” and holistic – one of the key features of the Children and Families Act 2014. Implementation of the National Trial has meant significant changes for all bodies involved – local authorities, health authorities and the SEND Tribunal itself.
The following decisions are part of the National Trial:
- A decision by the local authority not to issue an education health and care plan following an EHC Needs Assessment.
- A decision by the LA not to carry out a re-assessment for a child/young person who has an EHC plan.
- A decision by the LA not to amend an EHC plan following a review or re-assessment.
- A decision by the LA to cease to maintain an EHC plan.
- The description of the child/young person’s special educational needs in an EHC plan (section B).
- The special educational provision specified in an EHC plan (section F).
- The school or other educational institution named in an EHC plan (section I).
This means all appeals except refusal to assess decisions can be included in the National Trial.
There has to be an educational component to the appeal for it to be considered under the SEND Tribunal National Trial. If your concerns about the child or young person’s EHC plan are around health and/or social care rather than education, you still have the option of mediation.
The National Trial has expanded which sections of an EHC plan can be appealed. As well as having the power to order amendments to Sections B, F and I of an EHC plan (this has always been the case), the Tribunal can now recommend changes to sections C (health needs), D (social care needs), G (health provision), H1 and H2 (social care provision).
The Tribunal can make ‘recommendations’ to the health and social care sections of a plan. These are non-binding but there is an expectation they will be followed. If they are not going to be followed then the LA (for social care) or the Clinical Commissioning Group (CCG) (for health) will need to write to the parents/young person and Tribunal within 5 weeks of the decision, explaining why they have decided not to follow the recommendations.