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SEND: Single Route of Redress - National Trial

What is the National Trial?

Starting on 3 April 2018, the First-tier Tribunal (SEND) sometimes referred to as the 'SEND tribunal' will have some new powers. The tribunal will be able to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHC) plans. This new process is being trialled from 3 April 2018 to 31 August 2020. At the end of the period, the government will assess how well it has worked and make a decision on what happens next.

The trial 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.

It is important to understand that you cannot go to a SEND tribunal about health or social care complaints if you do not have an education complaint - the SEND tribunal must be 'triggered' by a special educational concern. More information on what is included in a special educational concern, and how to appeal, is set out on GOV.UK.

What does this mean for parents and young people?

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 2018 or the plan was issued or amended from 3 April 2018.

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.

You should seek advice about the different routes available, including from SENDIASS.

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 the local authority's decision on any of the grounds above and want the Tribunal to consider 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 and the appeal form is available at GOV.UK: First tier tribunal and further guidance can be found in the trial toolkit of support, see SEND Path Finder: Single route of redress national trial.

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. IFF Research will be gathering evidence to help the government make this decision. They will be contacting parents and young people who have been through the trial to find out about their experiences.

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.  

Help and further information

  • GOV.UK Tribunal website - This includes advice on making SEND appeals to the Tribunal and links to the appeal form.
  • A guidance document on the national trial has been published as part of a toolkit of support: SEND Path Finder: Single route of redress national trial Key information and resources will be shared as the trial progresses, including a frequently asked questions and answers sheet.
  • Contact SENDIASS. SENDIASS 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.
  • 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, freephone: 0800 035 6051.

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