Extended power - extended appeals
The extended powers were tested under a national trial that started on 3 April 2018 and ran until 31 August 2021. Following an evaluation undertaken alongside the trial and the Department for Education confirmed it will be continuing the extended powers given to the SEND tribunal since April 2018 to hear appeals and make non-binding recommendations about health and social care aspects of EHC plans, provided those appeals also include education elements.
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 extended power. 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.
What is an extended appeal?
The government extended the powers of the first-tier tribunal (SEND), sometimes referred to as the ‘SEND tribunal’, to make non-binging recommendations about the health and social care aspects of Education, Health and Care (EHC) plans. An Extended appeal gives you the 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. The extended power 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 recommendations about health or social care needs or provision, the responsible health commissioning body or LA social care team must respond in writing to the parent or young person. If a health commissioning body is responding to a recommendation about health provision in an EHC plan, it must also send a copy of its response to the LA SEND team. Responses must be in writing and state what steps the health commissioning body or LA social care commissioner has decided to take following consideration of the tribunal’s recommendations.
If a decision has been taken not to follow all or part of the recommendations, the health commissioning body or LA social care commissioner must give sufficiently detailed reasons for that decision. The response to recommendation letters will be obtained by Ofsted and the Care Quality Commission for the purpose of their local area SEND inspections.
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?
This places responsibility on local authority SEND teams to:
- Inform parents and young people of their new rights through decision letters and the local offer
- 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
It also places responsibility on health and social care commissioners to:
- Respond to any request for information and evidence within the timeframe set by the tribunal
- Send a witness to attend the hearing as required
- 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.
- The response to recommendation letters will be obtained by Ofsted and the Care Quality Commission for the purpose of their local area SEND inspections.
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 and the appeal form is available on the gov.uk website.
Help and further information
A guidance document is published as part of a toolkit of support SEND tribunal: extended appeals - Gov.uk
Contact Information, Advice and Support Services for free, impartial information, advice and support for parents and carers of children with Special Educational Needs and Disabilities (SEND). Support is also offered to children and young people with SEND.