So from April* the SEN and Disability Tribunal will have new powers to make ‘non binding recommendations’ on health and social care needs and provision in EHC Plans for disabled children and young people. There is an excellent overview of the Tribunal’s new powers on the Contact website.
This is potentially a very significant development, as previously the only legal remedy in these areas was judicial review. While judicial review can be a very effective remedy in serious and urgent cases and cases involving unlawful policies, it is not so effective in cases involving disputes as to the detail of care and support for children and young people. Whereas the Tribunal, with specialist judges and expert members, really can and does get deep into the detail of what a child or young person needs and what provision is required to meet those needs.
All good so far. But…(1) this new right only extends to children and young people with significant special educational needs, because a gateway to an EHC Plan remains (in essence) having SEN which are not being met / cannot be met appropriately from a school or college’s own resources**, and (2) how are local authorities and clinical commissioning groups going to react to a ‘non-binding recommendation’ to spend more money at a time of cuts?
The devil of any new scheme is of course in the detail, and for the detail we need to go to the guidance newly published (on a supermarket-style just-in-time basis) by the Department for Education. The guidance describes the new scheme as the ‘single route of redress national trial’. Even for children and young people with EHC plans this may be slightly optimistic, as (for example) school transport still remains outside this scheme and has its own separate appeals process. However it is clear from the guidance that the DfE expects that the Tribunal will now be able to resolve disputes across education, health and social care.
The guidance is non-statutory so has no formal legal force – although I anticipate that a court will still expect it to be taken into account by local authorities and others as a ‘relevant consideration’. Its purpose is to explain the new powers enjoyed by the Tribunal under the regulations which establish the national trial. The guidance says that the (laudable) policy aims of the national trial are to: create a more holistic, person-centred view of the child or young person’s needs at the Tribunal, bring appeal rights in line with the wider remit of EHC plans, encourage joint working between education, health and social care commissioners, bring about positive benefits to children, young people and parents.
These are the 10 key points I’ve picked up from the first read of the guidance:
- The Tribunal’s new powers are helpfully summarised against the different types of appeal at p8. The Tribunal can make health and social care recommendations in any type of appeal except an appeal against a refusal to carry out an EHC needs assessment.
- There is an interesting note that ‘the Tribunal will only make a recommendation about health and social care needs or provision related to a child or young person’s learning difficulties or disabilities which result in them having special educational needs, with the exception of any social care provision made under Section 2 of the Chronically Sick and Disabled Persons Act 1970.’ This of course immediately begs the question – what is this ancient Act and what provision does it require? See my ‘mystery duty’ blog post for the answers – but in short, the CSDPA requires local authorities to provide any of an extensive list of services where these are ‘necessary’ to meet the child’s needs. This requires the local authority to carry out a child ‘in need’ assessment under section 17 of the Children Act 1989 to determine what the child’s needs are, so they can decide (applying any eligibility criteria) whether it is ‘necessary’ to meet them. This must surely spell the end of requests for advice from social care during the EHC needs assessment process coming back with ‘child not known to social care’.
- Another interesting note on the health side is ‘The Tribunal will not make decisions relating to conflicting clinical diagnosis from medical professionals concerning health needs or health provision.’ I think what this means is that the Tribunal will focus on the child or young person’s presenting health needs and the provision required to meet those needs, rather than on the particular diagnosis the child or young person may or may not have.
- The orders and recommendations the Tribunal can make in relation to health and social care are summarised at p14. The guidance states that ‘Although any recommendations made by the Tribunal on health and social care elements of an EHC plan are non-binding and there is no requirement to follow them, they should not be ignored or rejected without careful consideration. Any reasons for not following them must be explained and set out in writing to the parent or young person.’ In public law terms, this makes the Tribunal’s recommendations a form of ‘mandatory relevant consideration’ for the local authority or CCG.
- This section of the guidance also includes the following; ‘It is important to be aware that, should an LA or responsible health commissioning body decide not to follow the recommendations of the Tribunal, parents and young people can complain to the Ombudsmen or seek to have the decision judicially reviewed.’ This is a welcome reference to the ability of the High Court to control how local authorities and CCGs respond to Tribunal recommendations through judicial review – ensuring that they are properly taken into account in decision making, that the process for deciding whether to follow them is fair and so on.
- In terms of evidence, the guidance states at p16 that ‘For a trial appeal, the LA will be required to provide evidence from the health and/or social care commissioners.’ The Tribunal will have the discretion to allow the parties to bring additional witnesses to address health and social care issues. As such parents and young people will need to consider whether they need evidence from (for example) an independent social worker to supplement the education- focused evidence they may have obtained from (for example) an educational psychologist. This of course will add to the costs of the appeal for parents and young people (other than those who may get the costs of expert reports met through legal aid). However the Tribunal has always (rightly) been heavily influenced in its decisions by good quality expert evidence and I do not anticipate that this will change in relation to health and social care recommendations. Note that the Tribunal expects to publish new guidance for professional witnesses shortly on how to present their evidence.
- There is a helpful note in the guidance, by reference to how witnesses present their evidence, that ‘ Specification means being clear what needs a child or young person has and quantifying and qualifying what provision they require, including who will deliver that provision, when, how often, for how long and the arrangements that should be in place to monitor its effectiveness.’
- The high point of the guidance, at p18, is the statement that local authorities and CCGs are ‘generally expected’ to follow the Tribunal’s recommendations on health and social care.
- One issue in the guidance which has already caused understandable controversy is the section on funding (p22); ‘LAs and CCGs will be reimbursed for reasonable costs incurred in taking part in the trial. A grant will be awarded for SEND Tribunal trial activity up to the total value of £4,000 per case for the period of the trial.’ There is of course no equivalent grant for parents and young people facing the additional costs of trying to have their child’s needs or their own needs properly identified and met.
- Section 5 of the guidance deals with ‘Implications of not following recommendations’. The strong message running through this section is that DfE desperately wants the Tribunal’s recommendations to be followed. The guidance emphasises that ‘should an LA or responsible health commissioning body decide not to follow the recommendations of the Tribunal, parents and young people can use a range of alternative routes of complaint, including complaining to the Ombudsmen or seeking to have the decision judicially reviewed.’ After a detailed description of the powers of the various Ombudsmen, there then follows a rare and welcome exposition of what judicial review is and how it can be used to ensure Tribunal recommendations are properly considered. The emphasis of the potential for local authorities and CCGs to be judicially reviewed seems to me to be the clearest steer that DfE is urging them simply to follow the Tribunal’s recommendations. Responses to Tribunal recommendations will also be considered by Ofsted and the CQC as part of the inspection process.
One critically important point remains. Nothing in the national trial alters the basic legal position under section 21(5) of the Children and Families Act 2014, being that all provision which ‘educates or trains’ a child or young person becomes educational provision for the purposes of EHC plans, rather than health or social care provision. It is therefore vital that before getting in to whether to make recommendations on health and social care, the Tribunal properly assesses whether the contested provision is in fact educational provision and should go in Section F of the plan, which the Tribunal has the power to re-write. Given the breadth of the concepts of ‘education’ and ‘training’ it seems to me that most of the provision that children and young people require will be ‘educational’ provision in their plans, even if it is usually commissioned by health or social care or delivered by health or social care staff.
The next few months will begin to make clear whether the new trial is an effective remedy for families in relation to health and social care needs and provision or a damp squib. I’m cautiously optimistic that it will be the former, at least for the minority of children and young people with significant SEN who have the benefit of a joined up plan. Other disabled children and young people will continue to need to rely on the social care and health complaints processes, and judicial review in serious and urgent cases or where a policy issue is involved.
*The trial applies to local authority decisions and EHC plans issued or amended from 3 April 2018.
**The educational-led nature of the system is also emphasised by this extract from the guidance, correctly summarising the legal position; ‘If mediation resolves the appealable educational issues, the parent or young person will not be able to ask the Tribunal to make recommendations on any health and/or social care aspects of the EHC plan’.