In most appeals about education, health and care (EHC) plans you can ask the SEND Tribunal to make a recommendation about:

• health needs (Section C)
• social care needs (Section D)
• health provision (Section G), and
• social care provision (Sections H1 and H2),

as part of your appeal.

If you do this, your educational appeal is ‘extended’ to include health/social care and your appeal will be known as an “extended appeal”.

In an extended appeal, the SEND Tribunal can make orders about special educational needs (Section B), special educational provision (Section F) and placement issues (Section I). It can also make non-binding recommendations about health and social care.

These powers are contained in The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 (The Recommendations Regulations).

This means that the SEND Tribunal represents a single route 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.

Please note, if your concerns for your child or young person are about health and/or social care rather than education, you can’t make an appeal to the SEND Tribunal about health/ social care alone. However you still have the option of mediation for health/social care if your LA has made a decision you can appeal.

Please jump to the relevant link to learn more about the SEND Tribunal’s powers, what you can do if you want an appeal to include health and/or social care, and what happens if a recommendation is made.

When you can ask for an appeal to include health and social care recommendations

How you can ask for health or social care recommendations

What happens in an extended appeal

What the SEND Tribunal can decide

What happens after an extended appeal

When you can ask for an appeal to include health and social care recommendations

You might want to ask the SEND Tribunal to make a recommendation about health or social care, for example:

• if it was difficult to get health and social care services to provide their input to the EHC needs assessment or EHC plan production process
• if there is or may be a need for residential placement as a result of health or social care needs, or
• in appeals concerning young people.

You can ask the SEND Tribunal to use its powers under The Recommendations Regulations to make recommendations on health and/or social care whenever you make an appeal about:

Appeal type:	Possible outcome - the SEND Tribunal could:
A decision by your LA not to issue an EHC plan following an EHC needs assessment	order that the LA issues an EHC plan, and recommend that health and/or social care needs or provision (whether generally or of a particular kind) are specified in it. Please note, here the SEND Tribunal cannot order or recommend what the plan should contain.
A decision by your LA not to amend (change) an EHC plan following a review or re-assessment	order changes to Sections B, F and/or I, and recommend that: changes are made to Sections C, D, G, H1 and/or H2 (if health or social care needs and provision have been specified already), or such needs or provision are specified (if not already).
A decision by your LA not to carry out a re-assessment for your child or young person who has an EHC plan	order that the LA re-assesses, and recommend that: changes are made to Sections C, D, G, H1 and/or H2 (if health or social care needs and provision have been specified already), or such needs or provision are specified (if not already).
A decision by your LA to cease to maintain (stop) an EHC plan	order that the LA continues to maintain the EHC plan, order changes to Sections B, F and/or I, and also recommend that: changes are made to Sections C, D, G, H1 and/or H2 (if health or social care needs and provision have been specified already), or recommend such needs or provision are specified (if not already).
The description of your child or young person’s special educational needs or special educational provision in an EHC plan	order changes to Sections B and F, and recommend that: changes are made to Sections C, D, G, H1 and/or H2 (if health or social care needs and provision have been specified already), or such needs or provision are specified (if not already).
The school or other institution named in an EHC plan, or the fact there is no school or type named in the plan	order changes to Section I, and recommend that: changes are made to Sections C, D, G, H1 and/or H2 (if health or social care needs and provision have been specified already), or such needs or provision are specified (if not already).

This means you can ask for recommendations about health and/or social care in all appeals except refusal to assess appeals.

Your LA must tell you about the SEND Tribunal’s extended powers in its decision letter and set them out in its Local Offer.

How you can ask for a health or social care recommendation

On the appeal form

You can ask for health and/or social care recommendations on the form you fill in to register your appeal (Form SEND 35). You can download or complete online the appeal forms from the SEND Tribunal website.

When completing your appeal form briefly describe 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 – if so, explain this.

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.

After you have made your appeal

If you have already submitted your appeal form but didn’t ask for these recommendations when you made your appeal, don’t worry. You can ask the SEND Tribunal to agree to your appeal being extended to include heath and/or social care.

You can do this using a SEND7 form (request for changes).  You should send this form to your LA to seek its views before sending it to the SEND Tribunal (with the LA’s response). Again, explain why you are seeking these recommendations, and why you did not ask on your appeal form (for example, because you were not aware you could or did not realise it was relevant at the time).  

The SEND Tribunal will then tell 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.

Please note, 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).

What happens in an extended appeal

On this page we explain the key points for you to be aware of if you ask for health and/or social care recommendations.

LA

The LA must respond 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 from the local health body, usually the integrated care board. 

• If the LA does not do this, or the social care team or health body does not respond, tell the SEND Tribunal. It can issue an ‘order’ telling the authorities to, for example, send information or carry out an assessment so that the health and/or social care issues can be progressed. You will need to use a “request for change” form (SEND 7) to ask the SEND Tribunal to make such an order. Send this form first to your LA to get its views before sending it to the SEND Tribunal. You do need to seek your LA’s views but you do not need its agreement.

The LA may decide to bring witnesses to the hearing from social care and/or health.

Health body

The health body (usually the integrated care board) will not be a party to the appeal, so it won’t respond to your appeal in the same way as the LA must.

However, the LA will ask it to provide information to the LA (please see above) and the health body may be required by the SEND Tribunal to give information (please see the SEND Tribunal section below).

You

You will need to gather and prepare evidence on education, health and/or social care in preparation for the appeal.

Whilst the SEND Tribunal can make health or social care provision recommendations without any specific evidence at all, we suggest you do get evidence wherever possible. This is because recommendations made on the basis of evidence may be stronger. This in turn may mean it is harder for the LA to lawfully refuse to follow them. Recommendations made on ‘thin’ evidence may carry less weight (please see our What happens after an extended appeal section).

There is no legal requirement for health or social care assessments to be carried out before such provision can be included in an EHC plan. However, if you think health and/or social care assessments are needed to identify all of your child or young person’s needs, you can ask the SEND Tribunal to order the LA or health authority to have these carried out before the hearing. You can do this using a “request for changes” (SEND 7) form. The SEND Tribunal can also decide to do this as part of its case management powers, but it is best not to rely on the SEND Tribunal using its powers. If you feel these assessments need to be carried out so you have the evidence needed, make this request using the SEND 7 form.

Health provision

Any argument about health provision before the SEND Tribunal would need to focus on why the provision is reasonably required by your child or young person’s health needs which arise from the special educational needs, so make sure your evidence addresses this.

Social care provision

If you are looking for a recommendation on social care provision for a child or young person up the age of 18 you will want to focus your evidence and arguments on provision which must be made as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970, and any other social care provision reasonably required by the learning difficulties or disabilities which result in your child or young person having special educational needs.

If you are looking for a recommendation on social care provision for someone 18 or over you will want to focus your evidence and arguments on provision which must be made as a result of the Care Act 2014. You could also consider asking for a recommendation on social care provision to help you as a carer of a disabled child. (An LA must carry out a parent carer’s needs assessment if a parent requests this under section 17ZD of the Children Act 1989).

You may also want to ask witnesses who support your case, for example independent health or other professionals, to attend the hearing.

SEND Tribunal

Using evidence and law

The SEND Tribunal should ask the LA and health body to provide it with the relevant health and social care local criteria, as a matter of good practice. The health body isn’t a party to the appeal, but the SEND Tribunal can direct another person (such as the health body) to provide information if this is necessary.

This is because a recommendation for health or social care provision will carry more weight if it is made based on evidence and by reference to the relevant eligibility criteria.

The SEND Tribunal may look at any underlying legal frameworks when considering recommendations, for example, to help it to understand which provision goes where in an EHC plan. 

It may also look to the social care legislative framework to inform the approach it takes if there has been a relationship breakdown between a parent and social services.

Active case management 

The SEND Tribunal can use its case management powers to tell parties to provide evidence, either at the hearing or by delaying proceedings and telling a party to get further reports or assessments.

The SEND Tribunal will decide how best to manage the case, keeping in mind the scope of its powers under The Recommendations Regulations and its procedural rules. These include dealing with cases fairly and justly.

It will also use any special expertise of the Tribunal effectively. Panel members for extended appeals will have a health and/or social care background and be trained in this area of law.

The hearing

The SEND Tribunal is likely to schedule a longer hearing.

Extended appeals are usually scheduled for two days but you, the LA and any witnesses may only need to attend the first day with the SEND Tribunal using the second day to make its decision.

If the SEND Tribunal suggests this approach but you feel it would be unfair not to use the second day to hear more evidence, you should explain this to the SEND Tribunal. In complex cases, hearings may even go on over two days.

If the educational part of your appeal settles before the hearing, the SEND Tribunal will not class the case as ‘finished’ if there are still issues outstanding. This means if you are still seeking health and/or social care recommendations, your appeal can continue, and the hearing is not likely to last as long.

What the SEND Tribunal can decide

The SEND Tribunal should decide health and social care as it does the educational elements of the EHC plan - they are not an optional extra.

The SEND Tribunal can decide to make a recommendation that health and social care needs and/or provision:

• are specified in an EHC plan, if they are not already, or
• already specified in an EHC plan are changed, and how so.

When the SEND Tribunal makes an order about what changes are needed for Sections B (special educational needs) and F (special educational provision) of an EHC plan, the SEND Tribunal must specify the changes. That means the changes must be detailed and specific, and should normally be quantified (for example, in terms of the type, hours and frequency of support and level of expertise).

The duty to specify is not as rigid in respect of recommendations for health or social care.  This means that the SEND Tribunal can decide to make recommendations even if specified evidence has not been provided to it. For example, the SEND Tribunal can make a recommendation on a time-limited basis if the evidence available only relates to a limited period (and should make this clear in its decision).

The SEND Tribunal can decide not to provide recommendations. It is more likely to decline to provide a recommendation if it does not have the evidence it needs to make recommendations. Its reasons will need to be clear in its decision if it decides not to make a recommendation in an extended appeal.

What happens after an extended appeal

The SEND Tribunal will make its decision and provide the parties with a copy of it and its reasons, usually within 10 working days of the hearing. If the SEND Tribunal makes a recommendation for health care needs or provision, it must also provide a copy of the recommendation to the health body (and may provide a copy of the appeal decision).

Orders

The LA must comply with any order the SEND Tribunal makes, and within the legal deadlines.

If your LA does not, you can take action.

Recommendations

Recommendations are not binding, but LAs and health bodies are expected to follow them (as set out in guidance).

The LA or health body must write to you within 5 weeks of the recommendation setting out its response.

If the LA or health body decides not to follow a recommendation (or any part) it must give you persuasive, compelling and well-founded reasons.

If the health body refuses to follow health care recommendations, you can either complain to the Parliamentary and Health Service Ombudsman, or get advice on judicial review if the matter is urgent and won’t be addressed effectively through complaining.

If your LA refuses to follow social care recommendations, you can either complain to the Local Government and Social Care Ombudsman, or again get advice on judicial review if the matter is urgent and won’t be addressed effectively through complaining.

If you choose to make a complaint to either Ombudsman, you do not have to follow the LA’s or health body’s internal complaints process first.

If you need to get advice on judicial review, you should check your eligibility for legal aid and get help.