Jo Honigmann, CEO of CPotential, gives her verdict on the new Special Educational Needs and Disability Tribunal powers, which come into force today, 3 April 2018
When the changes to the SEN Framework introduced by Part 3 of the Children and Families Act 2014 came into force there were several missed opportunities for meaningful reform.
One of the most disappointing of these was the failure to enable the First-Tier Tribunal (Special Educational Needs and Disability) to hear appeals regarding the health and social care parts of an Education, Health and Care (EHC) Plan as well as appeals about education.
While this would have meant joining three separate statutory frameworks – education, health and social care – it would have been incredibly helpful for parents and young people (i.e. a person over school-leaving age but under 25 years old). It would have simplified the legal routes of redress for issues, which are so closely linked and would have provided one point of accountability.
Instead, the separate legal rights of redress for education, health and social care were in stark contrast to the Government’s stated desire for the reforms to bring about a more streamlined integrated assessment process across these three frameworks.
If parents or young people wished to make a complaint about health provision set out in an EHC Plan they had to continue to put in a complaint under the NHS Complaints procedure. If they wanted to make a complaint in relation to the social care aspects, they had to put this to their local authority – all adding to the time and stress involved in the process.
Fortunately, the Government has responded to sustained pressure from politicians and key stakeholders during the passage of the Bill. Now, following a pilot scheme, a two-year national trial is starting on 3 April 2018.
This will give the First-Tier Tribunal powers to hear appeals about all aspects of an EHC Plan (other than in relation to appeals that are just about carrying out a needs assessment). For example, a Tribunal will be able to recommend that health and/or social care needs and provision should be included in an EHC Plan or that the description of these in the EHC Plan should be amended.
While the Tribunal’s powers in respect of health and social care are not the same as for education – it can only make non-binding recommendations for the former – it is a step in the right direction.
Health or social care commissioners will have to respond to the local authority and parents or young people, explaining the steps they will take or provide reasons why they won’t follow the Tribunal’s recommendations.
If the commissioners do not follow the Tribunal’s recommendations, parents and young people have other routes of complaint including contacting the Ombudsman (the Local Government and Social Care Ombudsman or the Parliamentary and Health Service Ombudsman). In certain circumstances, they will be able to pursue a judicial review of a health/ social care commissioner’s decision.
At the end of the two years the national trial will be evaluated and the Government will then decide whether the new powers should continue. In an ideal world, the new powers would continue but on the same binding basis as those relating to the education aspects of an EHC Plan.