Judge Jane McConnell May 2017 SEND Tribunal Update 2017 Judge Jane McConnell May 2017

Tribunal statistics 2015-16 - Appeals registered/ decisions Registered Decided For P/YP For LA 2011 - 12 3557 823 564 211 2012 - 13 3602 808 682 117 2013 - 14 4063 797 660 137 2014 - 15 3147 788 680 107 2015 – 16 3712 833 780 92 (c) SEND Tribunal 2017

Types of appeal 15/16 14/15 Refusal to assess/reassess 1192 1021 Refusal to issue a statement/Plan 321 203 Contents of statement/Plan only 346 303 Contents + placement 984 863 Placement only 579 474 Amend after AR 108 236 Cease to Maintain Statement/Plan 30 38 (c) SEND Tribunal 2017

Outcome of appeals 2015/16 D W/C Refusal to assess/reassess 106 937 Refusal to issue a statement/Plan 50 206 Contents of statement/Plan only 114 168 Contents + placement 439 470 Placement only 86 366 Amend after AR 48 95 Cease to Maintain plan 8 3 (c) SEND Tribunal 2017

Procedural Changes

Appeals on a 12 week timetable From 1 August 2016: Week 0 Registration of appeal Week 6 LA response to the appeal Week 8 Final evidence deadline Week 9 Bundle deadline + attendance forms Week 12 Hearing Week 14 Decision Parties can request an extension of time (c) SEND Tribunal 2017

R t A appeals now listed as paper hearings Automatically listed as paper hearings Either party can request an oral hearing Request will usually only be considered once the LA response to the appeal has been received – complex issues, unusual circumstances, if parent/YP has a particular reason Orders emphasise that test being applied in that in C & F Act 2014 s.38(6) Change in number of appeals being conceded by LA? – effect on DfE SEND funding if rise in number of appeals to the Tribunal? (c) SEND Tribunal 2017

Request for Changes Form revised : parties must have already discussed the issues Must include the other party’s response to the request or it will be returned Clarify what decision the Tribunal are being asked to make re process (c) SEND Tribunal 2017

London venue change – Royal Courts of Justice Moved in December 2016 Currently have 3 dedicated hearing rooms in the Thomas Moore Building Access to other court rooms as needed – all hearings will be on the site Current arrangements are in place until June 2017 (c) SEND Tribunal 2017

Top 5 issues in appeals

1. Format of EHC plans Not legally compliant Section B = SEN + Section F = SEP No combining of sections – caution re Section E No repeating of SEP All reports relied upon are to be listed in Section K Too long … (c) SEND Tribunal 2017

CoP para. 9.61 "EHC plans should be clear, concise, understandable & accessible to parents, children, Young People, providers and practitioners. They should be written so they can be understood by professionals in any local authority" And the Tribunal! (c) SEND Tribunal 2017

2. LA decisions not based on the legal test R to A cases – test is C & F Act 2014 s.36(8) – has or may have SEN + may need an EHC plan R to issue an EHC plan – "necessary“ Educational placement – C & F Act 2014 s. 39(4) exceptions relied on to refuse request Cease to Maintain an EHC plan – "no longer necessary" – no longer requires SEP specified (c) SEND Tribunal 2017

3. Lack of evidence from the EHC needs assessment SEND Regulations 2014 Reg. 6 requires an LA to seek "advice & information" on; Needs Provision may be required to meet such needs Outcomes intended to be achieved by receiving that provision Evidence is not being sought, received or is not covering all of these areas Transition from statements to EHC plan especially poor (c) SEND Tribunal 2017

4. Lack of evidence on comparative costs Comparative costs to the LA (education + special care) under C & F Act 2014 s.39(4) or cost to the "public purse" (LA costs + health costs) under EA 1996 s.9 of proposed educational placements EFA pre funding of places? Transport costs – "Bob says …“ Post school – 5 day packages of support (CoP para. 8.39) (c) SEND Tribunal 2017

5. Concede, withdraw or consent LA can only concede an appeal before their response deadline After that deadline the only way an appeal can be concluded is either; Decision of the Tribunal – includes consent order, strike out, panel issuing a decision or Parent/ YP withdraws the appeal WITH THE TRIBUNAL’S CONSENT If appeal is withdrawn post response, the statutory time limits for taking action that apply to the LA under Reg.44 do not automatically apply (c) SEND Tribunal 2017

Recommendations Pilot

Purpose & scope of Recommendations Pilot Initially from 1 April 2015 - 13 LAs selected by DfE From 1 August 2015 – a further 4 LAs joined the pilot Overseen by Mott McDonald consultants. Assessed by CEDAR (Warwick University) LAs were required to inform parents/YP in decision letters of their participation in the pilot & how to appeal against social care and/or health issues (c) SEND Tribunal 2017

Recommendations Pilot Tribunal could join an appeal on the Pilot All rights of appeal except Refusal to Assess Make Recommendations relating to social care or health – either requested by the parties or at Tribunal’s instigation Minister must report to parliament March 2017 (c) SEND Tribunal 2017

Recommendations Pilot appeals 30 appeals registered – from 10 different LAs (17 pilot LAs) 2 x R to issue an EHC plan; 2 x Cease to Maintain; others were contents appeals - Section B, F & B, F + I 18 raised Health issues 25 raised social care issues (c) SEND Tribunal 2017

Recommendations Pilot 10 have been decided 7 pilot issues settled by LA after case management 11 Young Person appeals All case managed to identify the issues + ensure evidence was obtained Residential school placement most raised issue x 10 (c) SEND Tribunal 2017

Types of issues presented Social Care Lack of social care evidence – no SC assessment “not know to this service” Lack of specification in SC evidence re identified need or specification of support Need for residential care based on social care evidence Health Need for Cognitive Behavioural Therapy Identification/evidence from CAMHS Provision of continence aids (c) SEND Tribunal 2017

Initial learning from the pilot: Supported positive working between SEN + social care teams within LA – holistic view of the child/YP Health issues raised were not significant or clinical issues Particularly relevant for: post school/FE placement issues – education vs. social care residential school placement where there is no educational need (c) SEND Tribunal 2017

Future of the pilot “National Trial” to start in early 2018 Two years All Las Power to make recommendations in relation to Social Care + Health All rights of appeal except Refusal to Assess (c) SEND Tribunal 2017

Post School EHC requests, assessment & plans

Bringing a YP appeal - Buckinghamshire CC v SJ [2016] UKUT 254 (AAC), [2016] ELR 350 YP is the appellant – appeal is in their name & they can appoint a representative i.e. advocate or Where the YP lacks the capacity to bring the appeal an “alternative person” must bring the appeal – Court of Protection Deputy, donee of lasting power of attorney or, if there is no such person, parents. They are not bringing the appeal on behalf of – it is the alternative person’s appeal. The continuing need for an EHC plan is not premised on any practical expectation of progress or requirement that the young person is expected to gain qualifications (c) SEND Tribunal 2017

SEND Code of Practice - January 2015 Preparing for adulthood from the earliest years – Chapter 8 8.30 – High quality study programmes for students with SEN All students aged 16 to 19 (and, where they will have an EHC plan, up to the age of 25) should follow a coherent study programme which provides stretch and progression and enables them to achieve the best possible outcomes in adult life… They should not be repeating learning they have already completed successfully. For students who are not taking qualifications, their study programme should focus on high quality work experience, and on non-qualification activity which prepares them well for employment, independent living, being healthy adults and participating in society… (c) SEND Tribunal 2017

Code of Practice 2015 para.8.39 “Where young people have EHC plans, local authorities should consider the need to provide a full package of provision and support across education, health and care that covers five days a week, where that is appropriate to meet the young person’s needs (c) SEND Tribunal 2017

Code of Practice 2015 para. 8.40 "Five-day packages of provision and support do not have to be at one provider and could involve amounts of time at different providers and in different settings.” (c) SEND Tribunal 2017

Important to remember … Law does not treat post school young people any different from children Same legal tests apply – no automatic right to cease post-19 Additional test in a Cease to Maintain decision post 18 years old – C & F Act 2014 s. 45(3) – education and training outcome specified in the plan have been achieved FE costs must be clearly identified (c) SEND Tribunal 2017

Procedural changes coming this coming year

Bundle Guidance Capping of number of pages of evidence each party can automatically submit in an appeal Core bundles + Refusal to secure an EHC Needs Assessment/reassessment = 75 pages Refusal to issue an EHC Plan = 100 pages Appeal against Part 2 and/or 3 of a Statement or Section B and/or Section F of an EHC Plan = 150 pages (c) SEND Tribunal 2017

Bundle Guidance Appeal against Part 4 or Section I of an EHC Plan = 100 pages Decision to Cease to Maintain a statement or an EHC Plan = 100 pages each party plus limit for Sections B and/or F = 150 pages each party and Section I = 100 each party (if challenged in the appeal) (c) SEND Tribunal 2017

Professional Witness – Guidance on written evidence To be developed with input of professional bodies Series of questions for professional witnesses – LA or privately commissioned – to answer e.g. Time/frequency have met child/YP What formal assessment carried out – results - analysis Specify SEN Specify SEP Progress child/YP has made Specific outcomes expected to be achieved if SEP is put in place (c) SEND Tribunal 2017

Child’s Right of Appeal Pilot to be considered in Spring 2017 Required under C & F Act 2014 Reflect legislation under European Convention on the Rights of the Child Right of appeal can be taken by child or their representative i.e. family member, school, other professional, carer Already operational in Welsh Tribunal (SENTW) (c) SEND Tribunal 2017

Top tip remains: Know the law – apply the law