Which decisions will be able to be part of the National Trial? Expand The following decisions are part of the National Trial: 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 all appeals except refusal to assess decisions can be included in the National Trial.
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 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 mediation, you still have the option of mediation.
What parts of the EHC plan are appealable to the Tribunal? Expand 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).
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 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. The CCG is the local body that oversees the delivery of health services.
How do you know if your appeal is part of the National Trial? Expand If you look at the answer to the first question above you will see which decisions are part of the National Trial. Your LA should have notified you of the extended powers of the Tribunal in its decision letter and 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.
Have all local authorities amended their decision letters to include information about the National Trial? Expand Unfortunately, we don’t think they have. The Department for Education has reminded LAs to do this.
What can a parent or young person do if they have already appealed the educational elements of a decision made after 3 April 2018, and want to extend this to cover the health and/or social care elements? Expand The Tribunal is expected to be proactive in identifying whether a case is suitable to be part of the National Trial. 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. Having obtained a response from your LA (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 to be included in the National Trial what should I write on the Tribunal appeal forms? Expand There could be a number of reasons why you want to appeal to the 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 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 is part of the National Trial, 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. It will need to obtain a response from the CCG on the health aspects of the appeal. The LA may elect to bring witnesses to the hearing from social care and/or health. It is possible the CCG will also send along its own legal representatives. 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, National Trial hearings may be longer and may even go on over two days.
What if my LA and CCG 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 when a parent appeals under the National Trial. In this case the Tribunal can issue an ‘order’ asking the authorities to, for example, send information or carry out an assessment so that appeal can proceed on the health and/or social care component too. You may have to tell the Tribunal that your LA or CCG 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 CCG 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 CCG 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.