Special Educational Needs and Disability (SEND) Tribunal Extension Appeals

The SEND Tribunal ran a National Trial from 3 April 2018 until 31 August 2021 that enabled parents and young people (YP) with SEND who appealed to the SEND Tribunal about:

  • Their local authority (LA) not issuing an Education, Health and Care Plan (EHCP);
  • The special educational needs, provision and placement in the EHCP;
  • Their LA not carrying out a re-assessment for a child/YP who has an EHCP;
  • Their LA not amending the EHCP following a review or reassessment;
  • Their LA’s decision to cease to maintain the EHCP

To also request the Tribunal make a non-binding recommendation about the health and/or social care needs and/or provision for the child or YP. In an EHCP this relates to Sections C and G and D and H respectively, provided there are educational aspects to the appeal when lodging with the Tribunal.

The Trial has since ended, and become a permanent part of SEND Tribunal appeals. Now called ‘Extension Appeals’ the Tribunal maintains the jurisdiction to make non-binding recommendations about health and/or social care. As per during the National trial, this is provided there is some educational part of the appeal when lodging.

Should the educational parts of an appeal be resolved i.e. Sections B, F and/or I respectively, but there remains health and/or social care aspects in dispute then the Tribunal can continue to consider these points as necessary .

If an appeal gets to a hearing, and includes health and/or social care, parents or the YP should prepare for the hearing to last two consecutive days, but often the second day is for the Tribunal panel to deliberate. The Tribunal will usually confirm this in the weeks leading up to the hearing. The standard number of witnesses for an appeal hearing is three, but it may be necessary to request a fourth witness  if there is a health and/or social care aspect of the appeal.

Once the SEND Tribunal has made their recommendations about health and social care parts of an appeal, the following steps will need to happen:

Health

  • The relevant commissioning body (CCG) will be sent a copy of the decision;
  • The CCG must respond to the parent/YP and the LA within 5 weeks in writing and confirm what steps they will now take in response to the recommendations and given reasons if they are not going to follow all or some of the recommendations;
  • The LA needs to send a copy of this response to the Secretary of State within 1 week of receiving this.

Social Care

  • The LA will be sent a copy of the decision;
  • They must respond to the parent/YP within 5 weeks in writing and confirm what steps they will now take in response to the recommendations and given reasons if they are not going to follow all or some of the recommendations;
  • The LA needs to send a copy of its response to the Secretary of State within 1 week.

If the CCG/LA does not follow the SEND Tribunal’s recommendations however, there are some potential options parents or the YP could take.

Firstly, it is expected CCGs and LAs will follow the recommendations made, given the SEND Tribunal is a specialist tribunal. Unfortunately, the Tribunal does not have authority to challenge a CCG or LA who do not implement their health and social care recommendations. Once the SEND Tribunal has issued its decision/recommendations they cannot take any further action in respect of non-delivery. 

In this instance the parent or YP can follow other routes of redress, such as a complaint to the LA or CCG through their respective complaints process, which can be escalated to the Local Government and Social Care Ombudsman or Parliamentary Health Service Ombudsman if required.

If neither of these options proves satisfactory there is a last resort of commencing Judicial Review proceedings, which can be costly and time consuming and we recommend seeking legal advice if you are considering this option.

For more information about how the Special Educational Needs team at Boyes Turner can help you with an Extension Appeal please email them at senexpertsolicitors@boyesturner.com or call on 0118 467 6547.

I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved. 

James' mother, Boyes Turner client

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