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Education, Healthcare Plans (EHCP)

4. Right to appeal a decision

In some cases where an Education Health and Care (EHC) Plan Needs Assessment has been requested, the Local Authority (LA) may not agree that the legal criteria have been met. Additionally when an assessment has been completed the LA may decide that an EHC Plan is not indicated by the information gathered as part of the assessment. In both of these cases you have the right to appeal this decision through the Upper Tier Tribunal Service. This service is free of charge and completely independent of the LA. It allows you to put your case forward as to why you disagree with the LA’s decision.

When the appeal is in relation to a decision not to assess, an independent panel will consider the case on the written evidence submitted within the request and any additional evidence the LA gathered in order to makes its decision. You may also request a full hearing to be held. When the appeal is in relation to a decision not to issue a plan, the case will be heard in front of an independent panel, at which you have the right to put your case across in person.

Even if the LA agrees to assess your child, and issues an EHC plan, you may not be in agreement with the content of the plan or the placement that is named within the plan. In this situation you also have the right to appeal to the First Tier Tribunal. Again any appeal will be heard before an independent panel at which you will be able to put your case across in person.

At all stages where you are able to challenge a decision we will notify you of the process of how you do this. Details of how to appeal can also be found on the First-tier Tribunal SEND website.

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The Special Educational Needs Disability (SEND) tribunal is changing

The Government have extended the powers of the First-tier Tribunal (SEND), sometimes referred to as 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 applies to decisions made or EHC plans issued/amended from 3 April 2018.

To date, 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.

SEND tribunal can now look at health and social care concerns too

If you have concerns about the education sections of an Education, Health and Care (EHC) plan or about a local authority decision to not issue an EHC plan, you can go to the tribunal and ask for these concerns to be addressed. For these cases, you will now also be able to ask the tribunal to look at the health and social care sections of the EHC plan as long as the local authority decision happened on or after 3 April or the plan was issued or amended from 3 April.

You still need an education complaint to go to tribunal

One important thing to understand is that you cannot go to a SEND tribunal if you do not have an education complaint – a health or social care complaint without a special educational concern does not enable you to use the SEND tribunal which must be “triggered” by a special educational concern. More information on what is included in a special educational concern, and how to appeal can be found on the Gov.uk website

This gives families a “one stop shop” (or single route of redress) where they can seek redress for concerns in an EHC plan.

Previously, the tribunal had no powers over the health and social care aspects of a plan. Now, all elements of a plan can be reviewed in one place as long as there is an education concern.

The tribunal can make “non-binding” recommendations about health and social care provision in EHC plans

The judgements that the SEND tribunal makes about health and social care elements of an EHC plan are “non-binding”. This means that the law does not require health and social care commissioners to follow the judgements.

Although the judgements are non-binding, the local authority and health care commissioners are expected to follow them and because they are recommendations from a specialist tribunal, they cannot be rejected lightly.

The health or social care commissioner must write to the family and the local authority within five weeks to tell them if they are going to follow the recommendations or not. If they are then they need to explain the actions they are going to take. However, if they decide not to follow the tribunal judgement, they must explain why they are not following the tribunal’s recommendations. In these instances, you can still take your case to the relevant ombudsman (for social care or for health) and / or judicial review as you can now.

Enforcing EHC Plans

Existing statutory rights will remain and you will be able to appeal to the SEN and Disability Tribunal in the same way that you currently can.

Annual reviews will continue as they do now.

One key change is that parents will be required to consider mediation if they are considering appealing to the SEN Tribunal.

SEND Mediation and Disagreement Resolution provides parents and young people with access to an independent disagreement resolution service:

Once a parent has decided whether or not to undergo mediation, they can take a case to Tribunal but this can only happen after a certificate has been issued by a mediation adviser to confirm that mediation was considered.

Mediation can consider the health and social care aspects of an EHC Plan, as well as education.

The mediation or any discussions on it must be conducted with someone independent from the local authority (information will be available within our local offer (see section 7). Any disputes must still be resolved within the same timescales, even where mediation takes place.

Mediation is not necessary if the appeal to Tribunal is about disability discrimination or about a dispute over whether a child should go to a particular school or placement.

If you move, then the EHC Plan can be transferred and the local authority in your new area will be required to provide the same support as in your previous home area. However, if your EHC Plan requires your child to be placed in a certain school, this can be reviewed, particularly if you now live some distance from the school.

More information

  • Your local Information, Advice and Support Service (IASS) – IASS can provide free, impartial advice about the law on SEN, local SEN arrangements and support, the trial and your rights. It can provide support with managing appeals, including support with preparing cases and attendance at hearings.
  • GOV.UK Tribunal website – This includes advice on making SEND appeals to the Tribunal and links to the appeal form.
  • Your local authority’s Local Offer – This contains further information on the trial, including links to other organisations that provide support.

Sample wording to include on Local Offers

In line with Schedule 2 of the Special Educational Needs and Disability Regulations 2014 all local areas in England are required to publish details in their local offers for ‘notifying parents and young people of their right to appeal a decision of the local authority to the Tribunal’ and this includes their extended rights as part of the single route of redress national trial. The following information on the national trial, to supplement the information that must already be published on the right to appeal a decision of the local authority, has been included below to support local authorities in fulfilling this duty.

Single Route of Redress – National Trial

What is the National Trial?

The Government are extending the powers of the First-tier Tribunal (SEND), sometimes referred to as 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 national trial. The trial will apply to decisions made or EHC plans issued/amended from 3 April 2018 and will run until August 2020, when a decision will be made on its continuation.

To date, 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 and/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.

What does this mean for parents and young people?

If you are unhappy with a decision not to issue an EHC plan, or with the special educational content or placement in the plan, you can make an appeal to the SEND Tribunal. 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 holistic, person-centred view of the needs of the child or young person.

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 your local Information Advice and Support Service (IASS).

If the SEND Tribunal makes a recommendation about health or social care elements of an EHC plan, 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 - make a complaint (LGSCO) or Parliamentary and Health Service Ombudsman - Make a Complaint (PHSO) or seek to have the decision judicially reviewed. Further information on the roles of these bodies can be found on their websites.

When can a parent or young person request recommendations about the health and social care elements of an EHC plan?

You can request the Tribunal makes recommendations about the health and/or social care aspects of EHC plans as part of an appeal relating to:

  • the description of the child/young person’s special educational needs in an EHC

plan

  • the special educational provision specified in an EHC plan
  • the school or other educational institution named in an EHC plan
  • a decision by the local authority not to issue an EHC plan
  • a decision by the local authority not to carry out a re-assessment for a child/young

person who has an EHC plan

  • a decision by the local authority not to amend an EHC plan following a review or

re-assessment

  • a decision by the local authority to cease to maintain an EHC plan

What does this mean for local areas?

The Trial places responsibility on local authority SEND teams to:

  1. Inform parents and young people of their new rights through decision letters and the local offer
  2. Provide evidence to the Tribunal from the health and social care bodies in response to any issues raised within the timeframe set by the Tribunal, seeking permission to bring additional witnesses to the hearing as necessary
  3. If a recommendation has been made, 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:

  1. Respond to any request for information and evidence within the timeframe set by the Tribunal
  2. Send a witness to attend the hearing as required
  3. 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 can a parent or young person request a health or social care recommendation?

If you wish to appeal against a local authority decision on any of the grounds above and want to request that the Tribunal considers your concerns about the health and /or social care aspects of the EHC plan, you should 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, as well as the appeal form are available at:

Taking part in the evaluation

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.

It is important that the evaluation is based on robust evidence, and the evaluators are therefore strongly encouraging participation from parents and young people. This could include taking part in a telephone or online interview just after the appeal hearing (or when the appeal process has been completed, if earlier), 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.

As a parent or young person, do I have to consider 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 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.