Tribunals: Report on the Recommendations Pilot in SEN appeals

By Douglas Silas

Background

The Children and Families Act 2014 introduced Education, Health and Care (EHC) Plans in England, to replace what had been known as statements of Special Educational Needs (SEN). Parents and young people continue to have a right of appeal to tribunal on specific issues related to education, but not on issues related to health or care aspects of the plan. Any parent or young person who is not satisfied with the health or social care needs and provision within an EHC plan must go down separate routes of complaint, making this a complex web of complaint and appeal systems.

Since April 2015 a pilot has been run in the SEN and Disability Tribunal which allows the tribunal to make non-binding recommendations on health and care issues. This is the first time that regulations have been made under section 51(4)(c) of the Act to confer a power on the First-tier Tribunal to make recommendations in respect of matters against which no appeal may be brought. The pilot involves thirteen local authorities.

In the pilot, the Tribunal will share its recommendations on health care and social care needs and provision with the responsible commissioning body for health and the local authority respectively. These bodies will be expected to send written responses to the parent or young person and must include reasons if they decide not to follow the Tribunal’s recommendation.

There will be an evaluation of the pilot that will form part of the review, the outcomes of which will be included in the report to Parliament in 2017. In the meantime, we have some insight into the workings of the pilot from Douglas Silas, a solicitor specialising in SEN and disability.

The following is an extract from the Douglas Silas SEN Update (June 2016). It is republished here with permission of the author.

At the Jordan’s SEN Conference [in March 2016], Judge Tudur [Deputy President of the First-tier Tribunal (Health, Education and Social Care) Judge Meleri Tudur] first presented a paper before lunch entitled: ‘Legal Issues & Perspectives – Part 1’ where she told us the following information:

• The implementation of the Children and Families Act 2014 had given the Tribunal an opportunity to review its own processes and implement an entirely electronic filing system for appeals made under the new legislation and to extend the arrangement to all new appeals by the beginning of 2016;
• The aspiration to shorten the timetable for all appeals remains, although, as yet, only a third of the appeals enjoy an expedited timetable from registration to hearing;
• Local Authorities (LAs) had grappled with the new requirements of the new legislation (such as preparing bundles for hearings);
• The introduction of a new SEN Code of Practice, a new set of Regulations, implementation of a ‘Recommendations Pilot’ and confirmation of the earlier ‘Composition Pilot’ (i.e. there are now two-person panels instead of three across all SEND jurisdictions, subject to judicial discretion to allocate a second specialist member in complex cases).

Judge Tudur also gave us updated statistics up to that point, suggesting that fewer appeals are settled before the final hearing date. She also said that the number of young person appeals registered had been higher than anticipated and highlighted that the extension of the age range to 25 years had plugged a gap in the appeal rights available to young people with special educational needs and disabilities wishing to continue to engage in education beyond the age of 16.

I was particularly interested to hear her talk about the ‘Recommendations Pilot’, whereby Tribunal panels can now make recommendations about health and social care provision, as well as deciding upon educational matters. She said that 13 LA areas, supported by their health and social care commissioners, had joined the pilot at the outset (a further four have now been added) and they represented a spread of LA-types/geographical areas/frequent and infrequent users of the Tribunal.

With respect to the ‘Recommendations Pilot’, Judge Tudur added that:

• The Tribunal had designed and created bespoke new forms, with different versions available for parents and young person pilot appeals;
• There was general guidance (published by the DfE in the autumn of 2015), prepared jointly by the Tribunal, the LGO and the PHSO set out in one document to explain the many and complex routes of redress available to parents and young people in special educational needs, social care and health provision;
• The dissemination of information had been limited to those living in pilot areas and that, although there was a concern about the guidance proving misleading for those who do not reside within pilot LA areas, she felt that the information is nevertheless useful in other contexts (adding that there is benefit in making the information more widely known so that parents and young people have a greater awareness of what is available to them);
• The Tribunal had also prepared its own guidance to the pilot for sharing with parents and young people in pilot areas who make an appeal.

We heard that the health commissioner and/or the LA social care team will be required to respond to recommendations in writing sent to the appellant/the LA/the Tribunal within five weeks or such other period as the Tribunal directs. The Tribunal will then take no further action on receipt of the response to the recommendation, other than to retain the document for analysis as part of the pilot.

However, if the appellant considers that the response to the recommendation from the health commissioner and/or LA social care team affects the outcome of the appeal, then they can make an application to the Tribunal for the decision to be reviewed on the basis that there has been a change of circumstances.

Judge Tudur said that the route to a ‘recommendation’ is still through the education portal and that the Tribunal cannot be asked to make recommendations unless there is an ongoing and valid special educational appeal. She also said that the pilot process has been designed with the intention that it provides an opportunity for health and social care providers to respond in writing to any recommendations made.

Judge Tudur then said that the volume of appeals registered on the pilot so far is small, but is gathering pace and that, until the first decisions are issued and the first recommendations made, it is difficult to predict the response that the commissioners will provide.

Finally, Judge Tudur said that past experience of new legislation indicates that it takes time for new rights and concepts to embed and it may be that the pilot came into force too soon in the life of the Act to demonstrate the extent of the appetite for bringing health and social care disputes to the attention of the Tribunal.

However, interest exists and information is being gathered from the experiences of those who are following the various redress routes including the Tribunal pilot. In a year’s time, the final report setting out the conclusions of the review should be publicly available and it will be interesting to find out what conclusions will emanate from the exercise.

About the author:

Douglas Silas is a solicitor specialising in special educational needs.