Education, Health and Care needs assessments
Janata Ali | 11.07.2019
12.03.2018 Moore Blatch
The DfE (Department for Education) has issued new guidance, first published on 8th March, 2018 detailing how the National Trial will work in the SEN (Special Educational Needs) Tribunal. This has been much anticipated since the end of the pilot scheme from June 2015 to August 2016.
The trail, essentially, extends the powers of the SEND Tribunal to provide a single route of redress. Rather than only dealing with the educational elements (Sections B and F), the Tribunal can now additionally consider health and care elements. This will run for 2 years, starting on 3rd April 2018.
The new powers will mean that the tribunal can make non-binding recommendations on the following:
As well as providing further data, the aims of the trial are well documented: to create a more holistic, person-centred view of the young person’s needs; to bring positive benefits to children, young people and parents; and to encourage joint working between education, health, and social care. Many will note the similarity of these aims with those of the Children and Families Act 2014. It is hoped that this is a step in the right direction to begin realising these aims. The Tribunal can now request that the local authority provides evidence from health and social care bodies in response to the issues raised and, as necessary, can seek permission to bring additional witnesses to the hearing.
Whilst the recommendations are non-binding, they should not be ignored or rejected without careful consideration. Any reason for not following them must be explained and set out in writing to the parent or young person. Should a local authority 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.
The appeal timetable is largely unchanged, with the hearing in week 12 and decision at week 14. However, there will be more active case management for those cases in the trial, which should ensure that they progress as intended and there is clear understanding of the issues. The length of the hearing will depend on the complexities as will the number of witnesses.
There are, however, a few conditions on the trial which some may not have been aware of, or prepared for. For example, the trial does not cover refusal to assess cases. Therefore, if a local authority refuses to undertake an education, health and care needs assessment, under the Children’s and Families Act 2014, the right of appeal is only available if the reasons are educational. Further, there must be an educational element to the appeal. This, however, causes less concern given that, usually, EHCPs require changes to the majority of sections. Finally, in order to lodge an appeal under this trial, the letter containing the local authority’s decision must be dated on or after 3rd April 2018.
The research and data collected as part of this trial is sure to be of great interest and, no doubt, will identify further action points to improve the children, young people and parents’ experience. At this early stage, there is much hope that this will be a success for those working in SEN and, for those families with children and young people with SEN that it will be a chance for a more joined up way of working and resolving issues.