Please note: this post has been partially superseded after the Secretary of State invoked the Notice to suspend legal duties to fulfil the provision in EHCPs. They are replaced with a "reasonable endeavours" directive. You can read about this in this post. This is still the position. until at least the end of June 2020 when the Notice must again be reviewed. Other aspects remain the same as in this post, such as the change to timescales regulations
I received more than 200 questions in the last week, sent by the wonderful parents reading Special Needs Jungle. Everyone is obviously very worried about what is going to happen to their children's hard-won EHCP provision, during this extraordinary time when we are mostly stuck in our homes.
To provide the most amount of value to you, I have grouped the questions received into ‘common categories’ to allow me to provide a comprehensive response. Where your question is not listed below, this is because somebody has asked a similar question affording the same response. While this is a longer way of writing the articles, I hope you can the answers will cover most people’s situations.
In these uncertain times, sharing information and making parents' lives even a tiny bit easier is an essential part of our work.
Today's category is how the Coronavirus pandemic will affect SEND First-tier Tribunal appeals.
First-tier Tribunal Appeals
Questions received include:
- The local authority (LA) agreed an independent placement and transitions started but other sections are unresolved. We are isolating for 12 weeks and the Tribunal is due in this time. Help!
- I am challenging my Education, Health and Care plan (EHCP). I have had trouble securing an educational psychologist's report – both finding somebody who does Tribunals or will see somebody in these COVID times. What should I do?
- We had our hearing on the 10th and we adjourned until 28th April – what will happen to our hearing?
- Mediation due 21/04 for refusal to assess. Yr 5, autism diagnosis and 1:1 support required. Timewise what legally is the best thing to do?
- What to do if our already slow LA do not respond in time to request for specialist post-16 placement for September and too little time is left for Tribunal appeal?
- My daughter is currently off school as she has diabetes type 1 and Downs syndrome. What support should she get as transition to secondary school is in August and the Tribunal is due in April?
- My son is year 6 ASD, ADHD and has an EHCP. Secondary placement not yet confirmed. If schools close before we have a confirmed place what will happen? He’ll have no school in September 2020?
- We are in the midst of taking our local authority to Tribunal as they haven’t named a school in our son’s EHCP. How likely is it that the Tribunal will happen and what will happen in the interim?
- For those with Tribunal appeals lodged – any indication if the Tribunal will continue to sit in the coming weeks/months or do we give up hope now?
- Just waiting to hear back from appeal. Will the decision still be circulated? And if appeal is won will there be a postponement of starting new school due to assessments needing to be done due to the coronavirus?
- My daughter’s Tribunal is at the end of April and all that is left to agree are the amendments to the working document and transition to the new school in September. Can I request a telephone hearing instead?
What does the SEND Tribunal guidance say?
Decisions about the education of children and young people are vitally important and the Tribunal is making every effort to conclude as many appeals and claims as possible. The Tribunal are already aware of parents, young people, local authority representatives and witnesses who are self-isolating and social distancing, putting pressure on all services at this unprecedented time.
Following today’s announcement from the Senior President of Tribunals, all hearings in the First-tier Tribunal Special Educational Needs and Disability will move away from face to face hearings and make use of the technology available. From Monday 23 March 2020, the Tribunal will use technology to enable hearings to proceed for the duration of the COVID-19 pandemic.
Hearings will be on paper or by telephone and where possible video, where the technology permits. The arrangements for your hearing will be confirmed at least 2 days before the date on which your hearing is listed, and it would assist if you could check whether you are able to access telephone and internet services either in your home or locally. You will not be required to travel to the hearing venue if you have either telephone or internet video facilities.
If parties do not have a reliable telephone or internet service available in their homes, it may be possible to arrange to use the IT equipment or telephones at your nearest Courts and Tribunals hearing venue. There is no need to contact the Tribunal to obtain the details as the administrative team are working to issue those details to you in time for your hearing.
Please do not contact the Tribunal helpline because at present, the Tribunal’s own resources are reduced due to self-isolation and social distancing and it is at the point two days before your hearing, if you haven’t received correspondence from the Tribunal that you should contact the office.
Therefore, if you have an upcoming Tribunal, please do not panic. Your hearing will go ahead by telephone or video conferencing. You should use this time to check whether you have a reliable telephone or internet service in your home or it may be possible to arrange to use the equipment or telephones at your nearest courts and tribunals hearing venue. Don’t wait until the day and then risk losing your hearing date.
Children in a phase-transfer year
For parents of children with Special Educational Needs (SEND) in a phase-transfer year, these appeals are being prioritised on a 12-14 week basis, so if you have not yet lodged your appeal and you are awaiting decisions as to school placement from your LA, lodge your appeal now and let the LA confirm the placement during the appeal. You need to set the timescale running or you may end up with your child going back to school in September and if you appeal at that time, you will need to wait a further 12-14 weeks for the appeal to be heard. Similarly, if you are waiting for mediation to be arranged, appeal now and if your LA are serious about negotiating you can still do so in the Tribunal process. I must stress that even if your child is going to a new phase of education at a new school in September, it is not too late to appeal now.
If you have already had your hearing part-heard and adjourned, the second part will continue by telephone/video.
Unable to gather evidence
If you are not ready to go to hearing because you are not able to compile your own evidence (perhaps your experts cannot assess due to the pandemic) it is absolutely fine to inform the Tribunal that you would like to vacate your current hearing and re-list at a later date. This allows more listings at the Tribunal for those hearings that must proceed. If you are in this category I would urge you to inform the Tribunal as soon as possible via a ‘request for changes’ form.
How Tribunal panels will work during this time
From 23rd March, the First-Tier Tribunal have also issued a practice direction, setting out how Tribunal panels will work during the Coronavirus pandemic. This will apply to ALL SEND appeals and applications within the First-tier and Upper Tribunals. Namely:
- Wherever possible, the Tribunal will continue to hear appeals before a "standard" panel. That being, a panel made up of a Judge, and one or two members.
- If a salaried Judge considers a case could not proceed, or there would be an unacceptable delay if the appeal is dealt with by a "standard" panel, the Judge can decide for the case to be heard by a Judge alone, or with a Judge and a panel of fewer or different members.
- When deciding how the appeal should proceed, the Judge must have regard to the urgency of the case, and the overriding objective that the case must be dealt with "fairly and justly".
- If the Judge decides to alter the "standard" panel, they can determine what members will hear the case.
- If the standard panel is altered, the Tribunal may seek the advice of one or more non-legal members to assist in decision making, provided the advice is recorded, and disclosed to the parties.
Tribunal Decisions should still be delivered in the normal way (within 14 days of the Hearing) but we must remember to be patient at this time. If you do not receive your Decision in this time, this may be due to a shortage of staff at the Tribunal’s administrative office and the decision will be sent out to you as soon as possible.
It is important to additionally note from the First Tier Tribunal guidance re video/telephone hearings that all new Appeals EXCEPT those which are phase transfer, will be registered on a 20-week timetable. Phase transfer appeals will, as stated above, be prioritised on a 12-14 week basis. This has needed to be done for such a long time to prevent the levels of hearings being vacated that we were seeing before this pandemic started.
Look out for tomorrow's post which will cover 'Timescales'
- Latest Coronavirus information relevant for SEND families
- Care in a time of Coronavirus: Using direct payments to pay family members for care
- Steve Broach, Public Law Barrister on the Coronavirus Bill’s implications for disabled children
- The curious decision to keep disabled children at school despite the Coronavirus crisis
- Calming Coronavirus anxiety in children (and everyone else)
- Deputyship and mental capacity for young people at the SEND Tribunal
- Misinformation and misconceptions: Busting some SEND law myths
- Ten top tips to get a ‘good’ Education, Health and Care Plan for your child
- Refused an EHC assessment or unhappy with the plan? Read our next steps
- Webinar: "Successful Strategies for EHCP Appeals"
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