Single route of redress trial -requesting recommendations about the health and social care elements of an EHCP
The Government are extending the powers of the First-tier Tribunal , sometimes referred to as the ‘SEND Tribunal’, to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHCP) as part of a two-year trial. The trial will apply to decisions made or EHCP’s issued/amended from 3 April 2018 to August 2020. However, given the understandable pressures local areas are under as a result of coronavirus (COVID-19), the Government believes it is not the right time to introduce any changes to this policy. They have therefore decided to extend the trial until 31 August 2021.
To date, you have only been able to appeal the educational aspects of EHCP’s. The trial gives you new rights to request recommendations about the health and social care needs and provision specified in a EHCP, in addition to the educational aspects, when making a SEND appeal. This gives you the opportunity to raise all your concerns about an EHCP in one place.
It is only possible for the Tribunal to consider the health and/or social care aspects of the EHCP where you are already making an appeal in relation to the education aspects of the EHCP 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 EHCP,or with the special educational content or placement in the plan, you can make an appeal to the SEND Tribunal more information is available on our mediation tribunal article.
This trial now gives you the opportunity to also request recommendations about the health and social care content of the plan at the same time. This will mean the Tribunal will take a more all-inclusive, person-centred view of the needs of your child.
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 from Supportive Parents.
If the SEND Tribunal makes a recommendation about health or social care elements of an EHCP, this is non-binding.
The local authority and/or health commissioner is generally expected to follow such 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 request the Tribunal makes recommendations about the health and/or social care aspects of your child’s EHCP as part of an appeal relating to:
- the description of the child/young person’s special educational needs in an EHCP
- the special educational provision specified in an EHCP
- the school or other educational institution named in an EHCP
- a decision by the local authority not to issue an EHCP
- a decision by the local authority not to carry out a re-assessment for a child/young person who has an EHCP
- a decision by the local authority not to amend an EHCP following a review or re-assessment
- a decision by the local authority to cease to maintain an EHCP
What this means for local areas
The trial places responsibility on local authority SEND teams to:
- inform you of your rights through decision letters and the local offer
- provide evidence to the Tribunal from the health and social care bodies in response to any issues raised within the time frame set by the Tribunal, seeking permission to bring additional witnesses to the hearing as necessary
If a recommendation has been made, you should send the health and social care response letters to the evaluators at SENDletters@IFFResearch.com
It also places responsibility on health and social care commissioners to:
- respond to any request for information and evidence within the time frame set by the Tribunal
- send a witness to attend the hearing as required
- 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 you can request a health or social care recommendation
If you wish to appeal against a local authority decision on any of the above grounds you can follow the normal process for bringing an appeal to Tribunal. You will need to tick the box on the appeal form relating to a health and/or social care.
Considering mediation as part of the trial
Before you can register an appeal with the Tribunal, you must contact a mediation adviser within two months of the LA decision you wish to appeal and consider whether mediation might be a way to resolve your disagreement with the LA.
If you want to appeal only about the school or other institution named in the EHCP, you do not have to contact a mediation adviser.
You can go to mediation about the health and social care elements of an EHCP, but this is not compulsory.
You can request recommendations about health and social care issues without having to receive mediation advice or attend mediation about those issues, provided there is also an education issue about which you are appealing.
Once a mediation adviser has been contacted, or once you have taken part in mediation, you will be issued with a certificate. This will be necessary if you are still unhappy and wish to progress to an appeal with the Tribunal.
An appeal to the Tribunal must usually be made within two months of the decision about which the appeal is being made or one month following the issuing of the mediation certificate, whichever is the later.
If mediation resolves the educational issues, you will not be able to appeal to the Tribunal on any health and/or social care aspects of the EHCP. However, mediation provides an opportunity for us to resolve disagreements and it can be completed more quickly than an appeal. It does not affect your right to make an educational appeal, and some aspects of the disagreement can go to appeal even when other aspects are resolved.
Taking part in the evaluation
There will be an independent evaluation of the trial which will inform a decision on whether the new tribunal recommendation powers should be continued after the trial.
The evaluation will run alongside the trial, from January 2018 to March 2021.
The evaluators are strongly encouraging contribution from parents, young people and other stakeholders by taking part in a telephone or online interview and then a follow-up interview 6 months later
These interviews will help the evaluators to gather the views of parents and young people on the appeal process, as well as identify how recommendations have been implemented and what the (early) impact has been,
Parents and young people that take part in the trial will receive a letter from the Tribunal explaining more about the evaluation and how their personal data will be stored confidentially and how it will be protected.
• A guidance document on the national trial is published as part of a toolkit of support
• South Glos SEND Information Advice and Support Service- Supportive Parents
• The evaluation of the trial is led by IFF Research working with Belmana. For any questions or to get involved please get in touch with them at SENDtrial@IFFResearch.com or freephone: 0800 035 6051.