What changes are being proposed in relation to the powers of the Tribunal?

On 3 April 2018 a two year national trial began which extends the powers of the Tribunal for Special Educational Needs to enable it to make recommendations regarding the health and social care aspects of a child's Education, Health and Care Plans ('EHCP'). This follows a limited trial which was conducted in limited geographical areas in 2015-2016 in order to streamline the process and create a 'single route of redress.' The findings of the pilot trial were published in March 2017 (contained within the CEDAR review).

In the past the Tribunal has only been able to make binding recommendations regarding the educational facets of a child's EHCP. However in the geographical areas where the trial was piloted the Tribunal was given powers to make (non-binding) recommendations pertaining to health and social care aspects of EHCPs.

These powers are set out in The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 ('the Regulations') and specify that recommendations can be made in relation to:

  • The health and social care needs specified in EHCPs;
  • The health and social care provision specified in EHCPs related to the learning difficulties or disabilities that result in the child or young person having special educational needs; and
  • The social care provision specified in EHCPs that is made under Section 2 of the Chronically Sick and Disabled Persons Act 1970.

Evaluation of the scheme will continue during the trial period and a decision will be made as to whether the Tribunal's new powers should continue after its conclusion in 2020.

What is the impact of this change?

When the Tribunal makes a recommendation in respect of health care needs or health care provision, it must send a copy of the recommendation to the responsible commissioning body. Although the recommendations are not binding upon CCGs, in accordance with the Regulations the CCG must respond in writing within 5 weeks to the child's parents and the local authority that maintains the EHCP, stating what steps (if any) it intends to take following consideration of the Tribunal's recommendations. It must also give reasons for any decision not to follow the recommendations.

CCGs need to be aware that if they decide not to follow the recommendations of the Tribunal, service users and/or their families may use this decision to pursue alternative routes of complaint, via the Parliamentary and Health Service Ombudsman or by seeking to have the decision judicially reviewed.

CCGs may also be asked to comply with requests from the Tribunal to attend hearings and with requests for further information (for example about assessments that have been undertaken in relation to the child in question and details of support currently provided).

To prepare for this change CCGs not currently operating under the pilot scheme will need to ensure that:

  • Local systems, policies and procedures comply with the Regulations;
  • Staff training has been undertaken to ensure awareness of the Regulations and the relevant guidance;
  • Arrangements are in place to make sure that, if required, information is supplied to the Tribunal within the necessary time limits and witnesses are available to attend at court; and
  • Arrangements are in place to consider, (if appropriate) implement, and respond to, recommendations from the Tribunal.