The Government has extended the powers of the SEND Tribunal to make non-binding recommendations about the health and social care aspects of education, health and care (EHC) plans as part of a two-year trial.
The trial will apply to decisions made for EHC plans issued or amended from 3 April 2018 and will run until August 2020, when a decision will be made on its continuation.
Before the trial, you have only been able to appeal the educational aspects of EHC plans. The trial gives you new rights to request recommendations about the health and social care needs and provision specified in EHC plans, in addition to 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 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.
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 the Information Advice and Support (IAS) Team.
If the SEND Tribunal makes a recommendation about health or social care elements of an EHC plan, this is non-binding. The local authority 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. 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 or social care aspects of EHC plans as part of an appeal relating to:
Follow the normal 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 and further guidance can be found in the trial toolkit of support (external link).
There will be an independent evaluation of the trial to 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.
You may be asked to take 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 impact has been.
If you take part in the trial you will get a letter from the tribunal explaining more about the evaluation and how your personal data will be stored and protected.
Before you can register an appeal with the tribunal, you must contact a mediation adviser within two months of the decision you wish to appeal and consider whether mediation might be a way to resolve your disagreement. If you want to appeal only about the school or other institution named in the EHC plan you do not have to contact a mediation adviser.
You can go to mediation about the health and social care elements of an EHC plan, 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 EHC plan. 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.