New SEND Pilot Regulations - imminent changes ahead

Changes to SEND Tribunal appeals

Following on from our news story in October 2017 when the Minister of State for Children and Families, Robert Goodwill, announced the expansion of powers of the Special Educational Needs and Disability Tribunal, we are pleased that the proposals have been followed through.

First pilot

Following a pilot undertaken in 2016 in which only 17 local authorities took part, the government has announced a national trial across all local authorities which will expand the powers of the First-tier Tribunal (Special Educational Needs and Disability) to enable it to make non-binding recommendations (not an order) on the health and social care aspects of EHCPs alongside the educational aspects. We wrote about the first pilot here.

Findings under the first pilot

The types of issues presented under the first pilot were:

• Social care
  • Lack of evidence i.e. no assessment / ‘not known to this service’ response
  • Lack of specification about identified need or specification of support
  • Need for residential care based on social care evidence
• Health 
  • Need for Cognitive Behaviour Therapy
  • Identification / evidence from CAMHS
  • Provision of continence aids at school

Initial findings, based on the few cases, were optimistic. The pilot supported positive working between Education and Social Care teams; issues raised around Health were not significant or found not to be clinical issues.

The pilot was particularly relevant for post-16/19 and residential cases where funding is an issue for Education and Social Care.

The new pilot

The new pilot will apply to decisions that are made on or after 3 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 as these decisions should already have been made by 15 February or 31 March.

From 3 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 conduct a reassessment
• A decision not to issue an EHCP
• The content of an EHCP
• A decision not to amend an EHCP following a review
• A decision to cease to maintain an EHCP

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

When the Tribunal makes a recommendation about health or social care needs and/or provision a copy of the decision will be sent to the responsible commissioning group or local authority which 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. If it decides not to follow any recommendations, it must explain why that is the case.

The DfE will be collating responses as local authorities will be required to send a copy of their responses to the Secretary of State for Education within 1 week of receiving or sending the response. This is so that the DfE can measure the effectiveness of the pilot.

Note that the Tribunal only has the power to make recommendations which are non-binding. It remains to be seen whether the 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.

It would be helpful for the DfE to give further guidance for parents on how to proceed if Tribunal recommendations are not followed through.  To follow up parents may have to make a complaint to an Ombudsman or, exceptionally, make an application for judicial review. Neither would be a satisfactory outcome for families of children with SEND.

Let’s wait and see…

If you have an appeal requiring input from social care and/or health in addition to education, give us a call to discuss how we can help. You can contact us at senexpertsolicitors@boyesturner.com – our specialist SEN solicitors are here to help