Tribunal’s powers to make recommendations on health and social care 'to continue' – but why has it not been made ‘permanent’?
The national trial of extended powers for the SEND Tribunal to hear appeals on the health and social care elements of Education, Health and Care (EHC) plans, as well as education, and make non-binding recommendations on provision will finally come to an end on 31 August. The trial has been extended several times since it first began in 2018 and ministers recently announced that the Tribunal’s powers to make health and social care recommendations will continue.
The extended powers have created a ‘single route of redress’ (government terminology) for families and young people to raise all their concerns about an EHC plan in a single place. The trial came about in response to concerns about the stress that separate appeals/complaints processes created for families, and in an effort to encourage better joined-up working across education, health and social care in local areas.
Impact of the Tribunal trial
The national trial has been evaluated by an independent research agency working in partnership with an economic consultancy, commissioned by the Department for Education.
The evaluation report assesses
- whether the extended powers were implemented as intended,
- what the impact has been on children and young people – and on local authorities, and
- what the wider implications are for the health and social care sectors and the broader SEND system.
It’s interesting – but totally unsurprising – to note that families are exercising their rights to bring health and social care issues to the Tribunal in greater numbers than expected. Since the trial began three years ago, there have been 2,561 appeals – six times the number that the Department for Education originally anticipated.
The evaluation team talked to a small selection of families who have been through an appeal under the national trial. They found that families believe the SEND Tribunal with its extended powers is better able to resolve their issues than other appeals or complaints routes. Almost seven in ten appellants (68%) agreed the health or social care needs or provision in their child’s EHC plan was more appropriate as a result of their appeal to amend it, and six in ten (61%) agreed the appeal had led to them or their child getting the help and support they needed.
High levels of compliance - but with a concerning caveat
One of the most eye-catching findings is that in 89% of cases, local authorities and clinical commissioning groups (CCGs) have implemented the Tribunal’s recommendations on health and social care, even though they aren’t legally binding. However, the report also says this:
“Where local authorities or clinical commissioning groups declined to implement all or some of the recommendations, they most commonly stated that this was because they had felt circumstances had changed meaning the recommendations were no longer applicable, because they felt the provision was unnecessary or unfair in the context of what was available to other families with similar needs, or because they felt the recommendation fell outside of their remit.”
This is very concerning, as it indicates that some local authorities and CCGs continue to resist the application of the law on children’s rights and entitlements.
The SEND legal advice charity IPSEA (where I work as policy lead), firmly believes children and young people who need health and social care support as well as special educational provision, benefit from a single route of redress to resolve disputes. The main benefits as IPSEA sees them are:
- A single place for families to go to resolve disputes about provision to meet their child’s needs. Many families do not have the financial or emotional resources to pursue a range of redress routes.
- A more holistic approach to meeting children and young people’s needs. The Children and Families Act 2014 recognises that a child’s educational needs cannot be considered in isolation from their health and social care needs.
- A vehicle for ensuring that children and young people’s legal entitlements to health and social care provision are upheld. The bottom line is that no child or young person has received any provision as a result of the national trial that they were not legally entitled to in the first place.
The extended powers have not imposed any new or additional duties on health and social care. They have simply provided a mechanism for ensuring that legal duties are adhered to across education, health and social care, and that it’s harder for local bodies to ignore children and young people’s legal entitlements to support that meets the full range of their needs. Further, the national trial has encouraged joint working across education, health and social care – something that has been repeatedly identified as a significant weakness in local area SEND inspections and a major obstacle to children and young people with the most complex needs having those needs met.
So why aren't they officially being made permanent?
All that said, the Department for Education has carefully avoided saying that the extended powers are being made permanent – just that they are ‘continuing’. In her letter to members of the National Trial Steering Group, Children’s Minister Vicky Ford MP says:
“This will enable the Tribunal to continue to take a more holistic view of the needs of the child across education, health and care while the cross-government SEND Review completes its important work.” [Our emphasis.]
This sounds like the SEND Tribunal’s remit is part of the ongoing, much-delayed, and long-awaited SEND Review. The obvious conclusion is that the Tribunal’s powers could still change.
On the SEND Review, the minister’s letter says this:
“We need to take the time to get this right and to ensure we are designing a system which is protected against unintended consequences. We will continue to work closely with sector and system leaders at pace over the coming months, so we are in a strong position to publish bold proposals for public consultation as soon as possible.”
It’s the promise/threat of "bold proposals" that are giving us sleepless nights right now. No existing legal entitlements should be weakened or abandoned as a result of this review. The single route of redress for families needs to remain. Indeed, we’d go further and say that the SEND Tribunal should have the power to make binding orders against health and social care, as it does with education, not just recommendations. No matter how tricky this might appear to be, a way should be found.
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