Plans have been announced to extend the current trial that gives the SEND Tribunal powers to make non-binding directions for appeals against EHCP health and social care decisions as well as those for education.
The Trial is testing a "single route of redress" to include appeals to both health and social care decisions in EHCPs, instead of just education. In the last few days before parliament is dissolved for the General Election, the stand-in SEND Minister, Michelle Donelan, has written to Directors of Children's Services across England to extend the current trial until 31 August 2020. It was originally due to run until 31 March 2020,
History of the trial
The current trial followed an initial limited trial involving just 17 of the 152 local authorities. That limited trial had an overwhelmingly positive response and was evaluated in the comprehensive CEDAR report published in March 2017.
It was then decided to launch a national trial, which our legal columnist, Hayley Mason, wrote about here. She voiced concerns that, although it was a positive development, it could end up being a costly one as the Government hadn't made any provisions to fund parental costs for what would be initially listed as two-day hearings. They did, however cover "reasonable costs" for local authorities and health bodies up to £4,000 per case. This extension of the trial does nothing to redress that balance. Read the Guidance for the extended trial here
Why is it being extended?
The Trial is being evaluated through IFF Research, who should deliver their report by February 2020, to whoever then holds the ministerial post for SEND. It will be used to help decide whether the provisions in the Trial should be made mandatory for all local areas.
The Trial is now being extended to give the Government time to consider the evaluation and then for local authorities to plan for whatever decision is taken. The letter sent by Ms Donelan indicates a decision by Easter 2020, giving LAs until the end of August 2020 to implement it. Presumably, if LAs are already participating fully in the Trial, it should be relatively simple to make permanent what they are already doing.
We hope that the evaluation will take into consideration the additional costs an extension of the appeal system this places on parents and either make funding available to support parents or at least slightly level the playing field and not fund LAs and health bodies. Maybe making it more expensive for LAs to defend their actions in court will make them think harder about putting in the right provision in the first place.
Our legal correspondent, Hayley Mason, said:
"I think it's a positive step to extend the National Trial until the report is available to summarise the success of it and assist in determining the best way forward. In my experience, the National Trial forces health and social care to look at matters that have otherwise been ignored and puts an active duty on the local authority to consider the child/young person holistically. It is (despite its intention) what the CFA 2014 has failed to do. It gives a real opportunity for parents, particularly those whose children have more severe needs, to access holistic support across the whole day, rather than just the education elements.Hayley Mason, SEN Legal, SNJ's legal columnist
"Going forward, I would like to see the Tribunal have the power to decide on the health and social care needs and Order recommendations that are mandatory, not optional as with the current trial. This is the only way I can see the Tribunal being able to make a real difference without parents having to endure further recourse to the Local Government & Social Care Ombudsman or Judicial Review, if recommendations are not carried out.
The SEND Tribunal is already under severe pressure as Hayley wrote earlier this year. Financial-year figures from 2019 showed a 26% increase in appeals on the previous year. This has led to the Tribunal becoming overwhelmed because of the state of the SEND system as a whole, which is forcing greater numbers of parents willing to appeal LA refusals to make suitable provision for their children. While the Tribunal has been making great efforts to resolve appeals via case management or telephone hearings, many still require a hearing in person. But the sheer number of these has led to an increase of appeal hearings being cancelled because of a shortage of judges or hearing venues, sometimes at short notice and sometimes, repeatedly for the same family.
What MUST happen to make it work
The initial short trial had very positive results and it's more than likely the current trial will be the same. But if this Trial is to be made permanent, then the issues facing the Tribunal of lack of venues and too few trained judges MUST also be addressed - and addressed now. The Government's failure to fully cost out and implement the SEND reforms, is the root cause of the current crisis in the Tribunal. It MUST NOT make the same mistake with extending the Tribunal's Powers. It must
- As Hayley said above, make the Tribunal's decision-making powers mandatory, not non-binding. Otherwise, LAs (and health commissioners) will always find enough wriggle room to refuse to make the provision directed, at least initially. This means parents will have to fight again. If LAs/health commissioners do NOT follow the recommendations, you cannot go back to the Tribunal but would have to complain to the Local Government and Social Care Ombudsman (LGSCO) or seek to have the decision judicially reviewed.
- Secondly, the Government MUST fund this properly. This means providing the Tribunal with more funding to hire and train more judges and support staff, ensuring an appeals system that runs smoothly. Going to Tribunal is hugely stressful without having your hearing cancelled. They must also provide sufficient resources for suitable venues to be booked.
If your Tribunal appeal had a successful conclusion through using the trial and you secured social care and health provision because of it, we'd love to hear about your experience.
Note: The latest Department for Education newsletter has just been sent out. We've uploaded it so you can read it here.
- The National SEND Tribunal Trial: what does it mean for families?
- The latest SEND Tribunal figures paint a troubling picture
- SEND Legal query answers
- SEND Tribunal will rule on EHCP health and social care issues in extended trial
- What costs £103.7 million and makes disabled children miserable?
- Draft Plans and Working Documents in an EHCP
- SEND crisis: 6000+ SEND appeals is the ‘new normal’ in a ‘broken system’
- Misinformation and misconceptions: Busting some SEND law myths
- Can The LA Make Amendments To The EHCP Which Differ From The Tribunal Order?
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- SNJ’s 10-point “Grab & Go” version of the DfE’s Back-to-School Guidance for SEND learners - February 23, 2021
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