In a two-part blog post, Mairi Ann Cullen, Senior Research Fellow, University of Warwick, reports on the Department of Education-funded review of new arrangements for disagreement resolution in special educational needs disputes. Here, in Part 1, she explores the element of the study that aimed to understand the effect of the recent pilot extending the powers of the First-tier Tribunal SEND.
Existing Tribunal powers
No substantive changes were made to the powers of the First-tier Tribunal SEND under the Children and Families Act (CFA) 2014. For education, health and care plans (EHCPs), as for statements of special educational need, the First-tier Tribunal can only hear evidence and make decisions in relation to the sections relating to educational needs and provision. For an EHCP, these are Sections B, F and I. Respectively, these sections are:
- the description of the child or young person’s SEN (B);
- the special education provision specified (F);
- the type and name of the placement or that no placement was named (I).
The Recommendations pilot
The CFA did, however, allow for a pilot (a time limited testing out) of an extension to these powers. Regulations were made such that, in relevant appeals lodged in the participating local authorities (LAs), the Tribunal could also consider and make recommendations relating to Sections C, D, G, H1 and H2. These sections cover health aspects:
- the child or young person’s health needs which relate to their SEN (C)
- any health provision reasonably required by the learning difficulties or disabilities which result in the SEN (G).
They also cover social care aspects:
- the child or young person’s social care needs which relate to their SEN (C)
- any social care provision which must be made for a child or young person under 18, based on Section 2 of the Chronically Sick and Disabled Persons Act 1970 (H1)
- any social care provision reasonably required by the learning difficulties or disabilities which result in the SEN (H2).
Seventeen English LAs took part voluntarily:13 from 1 June 2015 and four more from 1 February 2016. The pilot closed to new cases on 31 August 2016. The processing of the cases continued well into 2017. To deal with pilot cases, the Tribunal appointed nine panel members with relevant experience within the Health, Education and Social Care Chamber and trained them in SEN law and practice. Pilot hearings were heard by three members: a judge, a SEND expert and either a health or social care expert. Non-pilot cases continued to be heard by two members.
In all, 30 appeals were lodged under the pilot Regulations. Of these 30, eleven were conceded or withdrawn prior to the appeal hearing date, a similar rate to non-pilot appeals, and six were deemed outside scope by the time of the hearing. In these six cases, the reason for becoming outside scope was that either the health and/or social care issues were resolved before the appeal came to hearing or the judge at the hearing deemed the issues at stake to be purely educational. Of the 13 appeals that remained as pilot cases under the pilot Regulations, nine went to a full hearing (the other four cases remained pending at close of the research on 20.3.2017). Across these nine appeals, the Tribunal judges made five recommendations relating to health aspects and six recommendations relating to social care aspects of the EHCPs under scrutiny. As the word implies, the ‘recommendations’ made by the Tribunal were not binding on health or social care. This approach replicates that already taken in the Mental Health jurisdiction of the First-tier Tribunal and by other regulatory organisations, such as the Local Government Ombudsman.
Views about the extended powers
Among those interviewed, there was almost unanimous support for the principle of the extension of the Tribunal’s powers to include the health and social care aspects of the EHCP. This was seen as being in the spirit of the SEND reforms made in the Children and Families Act 2014. Some argued that not giving the Tribunal such powers undermined the benefits of having an holistic education, health and social care plan. In addition, the extended powers were viewed as encouraging greater attention to be paid to the need for education, social care and health professionals to work well together to support children and families. There were mixed views as to how effective recommendations would be, as opposed to enforceable orders. Parents interviewed were particularly sceptical that recommendations would result in action being taken.
Benefits of the extended powers
The pilot indicated that there were clear benefits of giving the First-tier Tribunal SEND power to consider the education, health and social care aspects of the plan. It encouraged improved working together across education, health and social care in the LAs that experienced pilot appeal cases. This in turn meant that the people working together had to learn more about the legal, ethical and practice frameworks within which their partners worked. This created greater mutual understanding and enabled creative problem-solving. The ‘stick’ of potentially having to appear before a Tribunal panel if agreement was not reached encouraged solutions to be found at an earlier stage in the disagreement resolution process. This was the major benefit for children and families. In cases that went to hearings, the main benefit for the appellant young person or parent was that all aspects of need and provision could be put on the table: there was no need to focus only on purely educational issues when health and/or social care issues were also relevant.
Limitations of the evidence
The nine pilot appeal hearings, resulting in 11 decisions in total relating to health or social care aspects, provided insufficient evidence to understand fully the impact of the Tribunal’s extended powers. For example, it was not clear to what extent health professionals and social care professionals would be accepting of, or resistant to, Tribunal decisions relating to health or social care aspects. The limited information available provided examples of both these responses. For example, one health care provider refused to follow a Tribunal recommendation because it had been based on information from a privately obtained report that did not originate from within the NHS. In another case, there was prolonged discussion within a social care team as to the implications for future practice of the Tribunal’s recommendation and a reluctance to commit to implementing it.
There was some evidence that, in part, the relatively small number of pilot cases was a result of glitches in the systems put in place to share information about the pilot with parents in the participating local authorities. For example, interviews conducted in relation to non-pilot appeals included cases from pilot LAs where the parents reported not having known about the pilot taking place in their area. Equally, there were two instances of parents who had gone through the pilot appeal process reporting that they had not realised that this was the case.
The Government’s policy response to the findings on the Recommendations pilot
In its policy response to the Review, of which the Recommendations pilot was one aspect, the Government stated its intention to have a two-year national trial of the same extended powers for the First-tier Tribunal SEND, beginning in early 2018. It also plans to commission an evaluation of the trial and to work with relevant organisations to support clear communication about the trial.
Interested in finding out more about the Recommendations pilot?
The full Review report and the Government’s response to it can be found at this web address:
If you would like to know more about the findings summarised above, read Chapter 7 of the Review report.
About the author:
Mairi Ann Cullen led the research team that conducted the Review of arrangements for disagreement resolution (SEND). She is a Senior Research Fellow in the Centre for Educational Development, Appraisal and Research (CEDAR), University of Warwick.