Introduction

In line with Schedule 2 of the Special Educational Needs and Disability Regulations 2014 all local areas in England are required to publish details in their local offers for ‘notifying parents and young people of their right to appeal a decision of the local authority to the Tribunal’. The following information on the extended powers of the SEND Tribunal is to supplement the information that must already be published on the right to appeal a local authority decision, which has been included below to support local authorities in fulfilling this duty.

Helen from SENDIAS tells you about the SENDIST Tribunal process as part of October 2022 Local Offer Live sessions.

Outcome of the National Trial

The National Trial started testing the extended powers for the SEND Tribunal from April 2018 to August 2021. The department commissioned an independent evaluation of the National Trial which found broadly positive evidence in support of the Tribunal’s extended powers.
Therefore, the Government has confirmed that they are continuing the extended powers of the First-tier Tribunal (SEND), sometimes referred to as the ‘SEND Tribunal’, to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHC) plans.

Before this, you would have only been able to appeal the educational aspects of EHC plans.

The continuation of the extended powers given to the SEND Tribunal, maintains your right to request recommendations about the health and social care needs and provision specified in EHC plans, as well as the educational aspects, when making a SEND appeal. This gives you the opportunity to raise all your concerns about an EHC plan in one place.

It is only possible for the Tribunal to consider the health and/or social care aspects of the EHC plan where you are already making an appeal in relation to the education aspects of the EHC plan and the education aspect must remain live throughout the appeal.

What this means for parents and young people

If you are unhappy with a decision not to issue an EHC plan, or with the special educational content or placement in the plan, you can appeal to the SEND Tribunal. You can request recommendations about the health and social care content of the plan at the same time, provided there is also an education element. This will mean the Tribunal will take a more holistic, person-centred view of the needs of the child or young person.

This does not prevent you also complaining about other aspects of your disagreement through other complaint procedures. You should seek advice about the different routes available, including from your local Information Advice and Support Service (SENDIAS).

If the SEND Tribunal makes a recommendation about health or social care elements of an EHC plan, this is non-binding. The local authority and/or health commissioner is generally expected to follow these recommendations, but they are not legally binding. Where they are not followed, the reasons for not following them must be explained and set out in writing to you and to the Department for Education through the evaluators. If they are not followed, you can complain to the Local Government and Social Care Ombudsman (LGSCO) or Parliamentary and Health Service Ombudsman (PHSO) or seek to have the decision judicially reviewed. You can find more information on the roles of these bodies on their websites.

When a parent or young person can request recommendations about the health and social care elements of an EHC plan

You can request the Tribunal make recommendations about the health and/or social care aspects of EHC plans as part of an appeal relating to:

• the description of the child or 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
• a decision by the local authority not to issue an EHC plan
• a decision by the local authority not to carry out a re-assessment for a child or young person who has an EHC plan
• a decision by the local authority not to amend an EHC plan following a review or re-assessment
• a decision by the local authority to cease to maintain an EHC plan

What this means for local areas

The SEND Tribunal extended powers places responsibility on local authority SEND teams to:

1. Inform parents and young people of their new rights through decision letters and the local offer
2. Provide evidence to the Tribunal from the health and social care bodies in response to any issues raised within the timeframe set by the Tribunal, seeking permission to bring additional witnesses to the hearing as necessary

It also places responsibility on health and social care commissioners to:

1. Respond to any request for information and evidence within the timeframe set by the Tribunal
2. Send a witness to attend the hearing as required
3. Respond to the parent/young person and the LA SEND team within 5 weeks of a recommendation being made, setting out the steps they have decided to take or giving reasons why they are not going to follow the recommendation.

How a parent or young person can request a health or social care recommendation

If you wish to appeal against a local authority decision on any of the grounds above and want to request that the Tribunal considers your concerns about the health and/or social care aspects of the EHC plan, you should follow the process for bringing an appeal to the Tribunal and tick the box on the form relating to a health and/or social care appeal. Advice on making SEND appeals to the Tribunal and the appeal form is available on the GOV.UK website

Help and further information

• SENDIAS
• SEND Tribunal National Trial Page