Which type of appeals can include health and social care issues? Expand The SEND Tribunal can use its extended powers in appeals against the following decisions: a decision by the local authority (“LA”) not to issue an education health and care plan (“ EHC 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 the special educational provision specified in an EHC plan the school or other educational institution named in an EHC plan This means parents and young people can ask for recommendations about health and/or social care in all appeals except refusal to assess decisions. Your LA should have notified you of the SEND Tribunal’s extended powers in its decision letter and set them out in the local offer. If your LA has not advised you, don’t worry, you can still ask for health and/or social care recommendations on the form you fill in to register your appeal (Form SEND 35). You can download the appeal forms from the SEND Tribunal website.
Can you appeal to the SEND Tribunal where the only problem is in relation to health and/or social care? Expand No. There has to be an educational part to the appeal for it to be considered under the SEND Tribunal’s extended powers. 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.
What parts of the EHC plan are appealable to the Tribunal? Expand The SEND Tribunal’s extended powers have expanded which sections of an EHC plan it can consider. 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).
What powers does the Tribunal have in relation to health and social care? Expand 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 integrated care board (“ICB”) (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. The ICB is the local body that oversees the delivery of health services (before July 2022, clinical commissioning groups (“CCG”).
What can a parent or young person do if they have already appealed the educational elements of a decision and want to extend this to cover the health and/or social care elements? Expand If a parent or young person has already appealed they can request that the SEND Tribunal “open up” the appeal to include health and/or social care as part of its consideration. You will need to first notify your LA that you want to include health and/or social care in the appeal and seek its views(we suggest giving your LA a deadline to reply to you). You can then make the request to the Tribunal using what is called a “request for change” form (SEND 7). You will need to give your reasons as to why you want to include health and/or social care in the appeal and include your LA’s response. If your LA has not responded, you can explain this to the Tribunal in your request. The Tribunal will then notify you of its decision as to whether or not it agrees to allow your request to include health and/or social care issues in the appeal. If you are seeking to extend an appeal to include health and/or social care this could lead to a delay in your appeal, including an adjournment of the hearing (the date being put back).
If I want the Tribunal to make recommendations about health and/or social care what should I write on the Tribunal appeal forms? Expand There could be a number of reasons why you want to appeal to the SEND Tribunal. It may be helpful to start off describing (briefly) your child’s health or social care needs and what help or support you are seeking from social services or the health authority. You may be unhappy about the lack of provision offered, or the provision may not be suitable or adequate. You should provide as much information as you can, but you do not need to set out your whole case with evidence at this point and neither do you have to refer to any specific laws. We would also recommend reading the sections of our website which provide general advice for all appeals, and more specific advice about appeals regarding the contents of an EHC plan.
If your appeal asks the Tribunal for recommendations about health and/or social care, what difference will it make to the appeal process? Expand The LA will need to issue a response to all parts of the appeal, not just the educational part of your appeal. For the social care and health parts of the appeal, the LA will need to obtain a response from its social care team and the local health body. Local health bodies used to be called clinical commissioning groups (“CCG”), from July 2022 they are known as integrated care boards (“ICB”). The LA may decide to bring witnesses to the hearing from social care and/or health. You will need to gather and prepare evidence on education, health and /or social care in preparation for the appeal. You may want to secure witnesses to support your case, for example independent health or other professionals. As a consequence of extending the appeal to include health and social care, the hearing may be longer. They are usually scheduled for two days but you, the LA and any witnesses may only need to attend the first day with the Tribunal using the second day to make its decision. If the Tribunal suggests this but you feel it would be unfair not to use the second day to hear more evidence, you should explain this to the Tribunal. In complex cases, hearings may even go on over two days.
What if my LA and health body do not respond to the health and/or social care part of my appeal? Expand We are finding that some LAs and health authorities are not responding to health and social care issues raised in extended appeals. In this case the Tribunal can issue an ‘order’ asking the authorities to, for example, send information or carry out an assessment so that the health and/or social care issues can be progressed. In most cases the relevant health authority means your local health body. These bodies used to be called clinical commissioning groups (“CCG”), from July 2022 they are known as integrated care boards (“ICB”). You may have to tell the Tribunal that your LA (for social care) or ICB is not responding by sending a “request for change” form (SEND 7) using the process described above.
What if the educational part of my appeal settles before the hearing: will the Tribunal still consider the health and/or social care part of my appeal? Expand At present this is still unclear. If the parties settle and wish to withdraw their case, they would need to prepare a consent order. The SEND Tribunal may not be willing to class the case as ‘finished’ where there are still issues outstanding.
Can the Tribunal recommend that the health authorities and/or social services carry out assessments on a child or young person? Expand Yes it can. If health and/or social care assessments are needed to identify all of a child or young person’s needs, the Tribunal can order the LA and/or the health authority to undertake these before the hearing. The order could be made following a request by the parents or by the Tribunal as part of its case management powers.
What can you do if the LA and/or health body say they will not follow the recommendations issued at the end of the appeal? Expand You can complain to the Local Government and Social Care Ombudsman (in relation to social care) or the Parliamentary and Health Service Ombudsman (in relation to health provision), or seek a judicial review of the decision. You will need to instruct a legal representative if you want to start judicial review proceedings.