SEND Single Route of Redress – National Trial

SEND Single Route of Redress – National Trial
Workshops January and February 2018

Aims of the induction event
To set out the reasons for the trial To make clear your duties, roles and responsibilities To set out what else is expected of you to prepare for and engage with the trial To inform you of what support is available To clarify how the Tribunal process will work To provide a networking opportunity To provide an opportunity for you to think through what changes you need to make To share the draft guidance and support packs To encourage you to disseminate this information to your colleagues and networks

Single route of redress national trial
Tribunal powers to make non-binding recommendations about the health and social care aspects of EHC plans as part of an education appeal Currently – can only appeal to the tribunal over the education aspects of EHC plans Separate routes of complaint for health and social care

Aims of National Trial Create a more holistic, person-centred view of the child or young person’s needs Bring appeal rights in line with wider remit of EHC plans Encourage joint working Bring about positive benefits to families A ‘Recovery Co-ordination Group’ set up by GM LAs – focus on broad issues around child welfare and support for schools going forward. 4

2015 Pilot Pilot in 17 LAs over 15 months from June 2015
30 appeals with 12 hearings The evaluation showed: Health and social care disagreements were resolved, many prior to the hearing – it acted as a ‘lever’ It stimulated joint working and increased knowledge and understanding of the system Most stakeholders, including parents and LAs, supported the principle However, there was not enough evidence to enable assessment of the impact of the pilot or compliance with recommendations 5

National Trial (I) Two year trial expanding the powers of the First-tier Tribunal SEND to make non-binding recommendations about the health and social care aspects of EHC plans Will apply to LA decisions and EHC plans issued or amended from 3 April Will apply to all LAs and CCGs Must be part of an appeal about SEN Families can continue to pursue other complaint routes DfE will provide expenses to education, health and social care to cover trial costs, up to £4k per case 6

National Trial (II) Recommendations are non-binding, but commissioners are generally expected to follow them – families can complain to the Ombudsmen or seek to have the decision judicially reviewed Ofsted and CQC incorporating into SEND local area inspections Evaluation in tandem looking at (a) implementation processes, (b) perceived outcomes on families and agencies and (c) economic/cost data to inform a decision on continuation 7

First-tier Tribunal Special Educational Needs and Disability
Introduction to the National Trial: Tribunal powers to make Recommendations Spring 2018 Copyright SEND Tribunal 2018 8

Background Information
What is the Tribunal? Copyright SEND Tribunal 2018 9

Chamber Structure Her Majesty’s Courts and Tribunals Service
HEALTH EDUCATION AND SOCIAL CARE CHAMBER First tier Tribunal Jurisdictions Mental Health Special Educational Needs and Disability Care Standards Primary Health Lists Chamber Structure Copyright SEND Tribunal 2018 10

First-tier Tribunal Special Educational Needs and Disability
Chronology 1993 Education Act 1993 sets up the independent appeal tribunal – Special Educational Needs Tribunal – SENT 2001 Tribunal powers extended to include disability discrimination claims – name changed to SENDIST Copyright SEND Tribunal 2018 11

Copyright SEND Tribunal 2018
2006 Creation of a Tribunals Service bringing together disparate jurisdictions Tribunals are placed in Chambers some with multiple jurisdictions SENDIST Tribunal becomes part of HESC (Health, Education & Social Care) Chamber Copyright SEND Tribunal 2018 12

2007 Last President of SENDIST retires 2009 First Deputy Chamber President appointed 2010 First salaried judges of the Tribunal appointed 2011 Tribunals Service joins Her Majesty’s Courts Service to create HMCTS administered by the Ministry of Justice Copyright SEND Tribunal 2018 13

What is the National Trial all about?
Additional powers via statutory regulations to allow a Tribunal panel to make recommendations relating to: Social Care Health Copyright SEND Tribunal 2018 14

Why is it being implemented?
2009 Lamb Inquiry – Parental confidence in the SEND System 2010 Green paper – Support & Aspiration: a new approach to SEN 2011 Pathfinders Pilots 2013 Bill to Parliament 2014 C & F Act came into force s.79 Copyright SEND Tribunal 2018 15

Current duties of health and social care commissioners
s.21: Definitions “Health care provision” means the provision of health care services as part of the comprehensive health service in England continued under section 1(1) of the National Health Service Act 2006 “Social care provision” means the provision made by a local authority in the exercise of its social services functions s.21(5) Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision) Copyright SEND Tribunal 2018 16

s.23 Duty of health bodies to bring certain children to local authority’s attention Applies to CCGs, NHS trust or NHS foundation trust in relation to a child under compulsory school age where they form the opinion that the child has or probably has SEN or a disability s.26: Joint commissioning arrangements s.28: Duty to co-operate generally with local partners which includes the NHS Commissioning Board, CCG and NHS trust or foundation trust and LHB Copyright SEND Tribunal 2018 17

s.28(3) A local authority in England must make arrangements for ensuring co-operation between- a) the officers of the authority who exercise the authority’s functions relating to education or training b) the officers of the authority who exercise the authority’s social services functions for children or young people with special educational needs s.31: Duty to co-operate in specific circumstances Copyright SEND Tribunal 2018 18

Recommendations Pilot
1 April 2015 – August 2016 Copyright SEND Tribunal 2018 19

Purpose & scope of Recommendations Pilot
Initially from 1 April LAs selected by DfE Pilot started in June 2015 From 1 August 2015 – a further 4 LAs joined the pilot Facilitated by Mott MacDonald Part of a broader review of disagreement resolution assessed by CEDAR (Warwick University) Research Team LAs to inform parents/YP of their participation in the pilot & how to appeal against social care and/or health in decision letters Copyright SEND Tribunal 2018 20

Covered all rights of appeal except Refusal to Assess Tribunal could join an appeal to the Pilot Ability to make Recommendations relating to social care or health – either requested by the parties or of the Tribunal’s own volition Minister had to report to Parliament by March 2017 Copyright SEND Tribunal 2018 21

Recommendations Pilot appeals
30 appeals registered – from 10 different LAs (17 pilot LAs) 2 x Refusal 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 Copyright SEND Tribunal 2018 22

12 were decided by the Tribunal 7 pilot issues conceded 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 Copyright SEND Tribunal 2018 23

Types of issues presented Social Care
Lack of social care evidence – no social care assessment: “not known to this service” Lack of specification in social care evidence re identified need or specification of support Need for residential care based on social care evidence Copyright SEND Tribunal 2018 24

Health Need for Cognitive Behavioural Therapy Identification/evidence from CAMHS Provision of continence aids Copyright SEND Tribunal 2018 25

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 Copyright SEND Tribunal 2018 26

Outcome of the Pilot Government issued a report 29 March 2017: Special Educational Needs and Disabilities: Disagreement Resolution Arrangements in England _data/file/606740/Government_report_on_CEDAR_review.pdf Recommendations included: introducing a two-year national trial of the expansion of the First-tier Tribunal SEND powers to make non-binding recommendations on the health and social care elements of EHC plans. Copyright SEND Tribunal 2018 27

National Trial Copyright SEND Tribunal 2018 28

When will the National Trial begin?
Appeals can be registered under the National Trial against LA decisions made from 3 April onwards Runs for a period of 2 years until April 2020 Tribunal hearings under the National Trial will not be held for at least 3 months after that date Copyright SEND Tribunal 2018 29

What types of appeals? All rights of appeal except against refusal to assess decisions Parents/YP must register an appeal against an educational decision Only in the context of an educational appeal can they also register an appeal against health and/or social care issues Tribunal has the power to include or add education appeals to the National Trial at any point in the appeal process Copyright SEND Tribunal 2018 30

Right of appeal – s.51(2)(b) Refusal to issue an EHC Plan
Copyright SEND Tribunal 2018 31

Deciding whether to issue an EHC Plan
Relevant considerations: s.37(1) Children and Families Act 2014 And CoP 2015 paragraphs Copyright SEND Tribunal 2018 32

Exercise: s.37(1) Children and Families Act 2014: Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan: The local authority must secure that an EHC plan is prepared for the child or young person, and (b) Once an EHC plan has been prepared, it must maintain the plan. What are the issues to be decided when applying the legal test? What issues may arise as a result of an appeal being under the National Trial? Copyright SEND Tribunal 2018 33

Right of appeal – s. 51(c) Contents of an EHC Plan + appeal following an Annual Review Copyright SEND Tribunal 2018 34

Code of Practice says: 9.61 “EHC plans should be clear, concise, understandable and accessible to parents, children, young people, providers and practitioners. They should be written so they can be understood by professionals in any local authority” Copyright SEND Tribunal 2018 35

Sections of an EHC plan c/f Code of Practice 2015 Chapter 9 para 9.69
What to include in each section of the EHC Plan Copyright SEND Tribunal 2018 36

Section A: Parent/ child/ Young Person view - No right of appeal + not under NT Comment: It must be clear whether it is the child or YP views being quoted directly or those of the parent or professionals that are being represented Must cover: Views, interests & aspirations of child & their parents or the young person Copyright SEND Tribunal 2018 37

Section B: Special Educational Needs – Right of appeal
Must cover: The child or YP’s Special Educational Needs Comment: ALL SEN must be included Must be specified as required by s. 37(2) [This section mirrors the information contained in Part 2 of a statement of SEN] Copyright SEND Tribunal 2018 38

Section C: Health needs – NT power to make a Recommendation
Must cover: The child or YP’s health needs Comment: Those health needs which relate to the child or young person’s special educational needs Must be specified as required by s. 37(2) Copyright SEND Tribunal 2018 39

Section D: social care needs – NT power to make a Recommendation
Comment: Must specify any social care needs which relate to the child or young person’s SEN and which require provision under section 2 of the Chronically Sick and Disabled Persons Act 1970 May specify other social care needs not linked to SEN i.e. child protection plan with the consent of the child or parents Must cover: Any social care needs which relate to the child or YP’s SEN Copyright SEND Tribunal 2018 40

Section E: Outcomes – No right of appeal + not under NT
Comment: Outcomes will be reviewed when Plan may be ceased or reviewed Case law has established that outcomes can be amended by the Tribunal where they have ordered amendments to Sections B and/or F of an EHC plan Must cover: The Outcomes sought for the child or YP Copyright SEND Tribunal 2018 41

Section F: special educational provision – Right of Appeal
Comment: Detailed, specific and normally quantified in terms of the type, hours and frequency of support and levels of expertise; and • provision specified for each and every need specified in section B. See below re: therapies and other examples of SEP [This section mirrors Part 3 of a Statement of SEN) Must cover: The special educational provision required by the child or young person Copyright SEND Tribunal 2018 42

Specification: L v Clarke & Somerset CC [1998] ELR 129 “so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case. Very often specification of hour per week will no doubt be necessary and there will be a need for that to be done.” Copyright SEND Tribunal 2018 43

Special Educational provision vs. SC or Health provision
Therapies in an EHC plan – section 21(5) “Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)” Must therefore be specified in the Special Education Provision section of the EHC plan = LA has a duty to provide/fund Copyright SEND Tribunal 2018 44

Section G: health provision – NT power to make a Recommendation
Must Cover: Health provision reasonably required by the learning difficulties or disabilities of the child or YP Comment: CCG must agree the health provision which the LA specifies in an EHC plan such as: Medical treatments Delivery of medication Nursing support Equipment May also specify other health provision not linked to learning difficulties or disabilities Copyright SEND Tribunal 2018 45

Section H: social care provision - NT power to make a Recommendation
Social care provision required under CSDPA (under 18 only) Other social care provision reasonably required not including services provided under the CSDPA 1979 eg adult social care provision under the Care Act or other social care provision not linked to learning difficulties or disabilities. Copyright SEND Tribunal 2018 46

Section I: Educational placement – Right of appeal
Must Cover: Type of school, maintained nursery, post 16 institution or other institution or type of school or other institution to be attended by the child or YP Name of the specific educational placement that the child/YP must attend Comment: If a school or College is included within Children & Families Act s.38, LA MUST name it in a final EHC plan if requested unless they can successfully establish an exception under s.39(4) EA 1996 s.9 also applies where a school placement is being requested Copyright SEND Tribunal 2018 47

Contents of EHC Plan – No right of appeal + not under NT
Section J: Where there is a personal budget, the details of this & details of any direct payments agreed & the outcomes to be met Section K: The advice & information gathered during the assessment (in appendices) should be listed Copyright SEND Tribunal 2018 48

Right of appeal – Cease to Maintain
s. 51(2)(f) Copyright SEND Tribunal 2018 49

Cease to maintain LA must issue a cease to maintain notice New provisions for over 18 - Section 45 (3) LA to have regard to whether the educational or training outcomes in the EHC Plan have been achieved If young person over 18 is not in education or training, Plan must be reviewed Copyright SEND Tribunal 2018 50

Exercise: What issues would you expect to arise in an appeal made under the National Trial about: Social care (10 minutes) Health (10 Minutes) Copyright SEND Tribunal 2018 51

Exercise: Now identify …
Why will those issues arise? (10 minutes) 2. What three steps can be taken to prevent them? (10 minutes) Copyright SEND Tribunal 2018 52

Tribunal Procedure The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (as amended) Copyright SEND Tribunal 2018 53

Time-line for an appeal under the National Trial
Week 0 Appeal registered Week 1 Case management review of the appeal to: a. identify issues b. evidence required c. clarify the recommendations being sought Week 6 LA response to the appeal Week 7 Final Evidence Deadline Week 8 Telephone case management of appeal (if required) Week 10 Evidence bundle produced by the LA Week 12 Hearing Week 14 Decision issued Copyright SEND Tribunal 2018 54

Case Management Powers Tribunal Procedure Rules 2008 (as amended) Rule 5 Extensive powers which include: Case management hearings Require parties to provide evidence Require third parties to provide evidence Witness summonses Copyright SEND Tribunal 2018 55

Presenting Evidence Evidence from all professionals should specify a child or young person’s: Special educational, health or social care needs Provision required to meet each of those needs The outcomes expected to be met when provision is put into place Copyright SEND Tribunal 2018 56

Sources of evidence Written reports gathered through the EHC needs assessment process – on which the LA have based the decision under appeal Updated written evidence from LA instructed professionals including SC + health Updated educational evidence from child/YP school or College Privately instructed professional reports Copyright SEND Tribunal 2018 57

Oral Evidence - Witnesses
To add or supplement written evidence Within area of expertise Usually each party can have up to 3 witnesses. In NT appeals, permission will be granted for additional witnesses to address health and social care issues where a party requests it & gives clear reasons Tribunal can make arrangements to hear evidence via electronic means Power to summons a witness Copyright SEND Tribunal 2018 58

Tribunal Panel + hearing
Tribunal panel composed of: Judge Special educational needs and/or disability specialist member Health and/or social care specialist member The length of hearing will be determined during case management process – the expectation is that hearings will usually last 1 day Educational issues to be decided first – then NT issues Copyright SEND Tribunal 2018 59

Tribunal Jurisdiction
Children and Families Act 2014, SEND Regulations 2014, Recommendations Regulations 2017 Copyright SEND Tribunal 2018 60

Tribunal powers Decision on all special education issues plus Recommendations on Social Care & Health issues Copyright SEND Tribunal 2018 61

Communicating Tribunal Decisions + Recommendations
Tribunal must send its decision, including any recommendations to the LA and parent or young person who made the appeal Tribunal must also send a copy of any recommendations it makes and a copy of the full decision to the relevant health commissioning body if it includes any recommendations on health issues Copyright SEND Tribunal 2018 62

Responding to Recommendations
An LA or Health Clinical Commissioning Group (CCG) MUST give detailed reasons to parent/YP within 5 weeks of receiving the Tribunal’s decision if they decide not to adopt a Tribunal’s recommendations If the refusal has an impact on the decision, parties may request a review of the decision on the basis of a change of circumstances pursuant to Rule 48 of the Tribunal Procedure Rules 2008 Parents or YP can challenge the decision not to adopt recommendations by: a. Referral to the Local Government/Public Services Ombudsman b. Judicial Review Copyright SEND Tribunal 2018 63

Appeals to the Upper Tribunal?
Appeals can be made to the UT if there is an error of law Will include errors relating to health and social care issues considered by the Tribunal Copyright SEND Tribunal 2018 64

What can go well? … Single route of redress for families and young people Holistic consideration of needs + provision across all services Example An EHC Plan is not necessary if evidence of full-time social care provision being in place Clarity as to which service must provide what – LA cannot argue that provision should not be in Section F if it has not already been specified in Section G of an EHC plan Copyright SEND Tribunal 2018 66

Managing the process – preparations made:
Issue Measure Lack of clarity of issues being raised Lack of relevant evidence Increased volume of written evidence Proactive case management at registration Power to require a party or 3rd party to produce evidence through directions Guidance re type of evidence required + specific case management orders Revised Bundle Guidance Copyright SEND Tribunal 2018 67

Managing the process – preparations made:
Issue Measure Increased time required for hearing Lack of expertise Ongoing case management + careful management by panel at hearing Each panel will have a Judge + specialist education expertise + specialist health/ social care expertise Recruitment of additional expertise Copyright SEND Tribunal 2018 68

Factors to consider: Predict a gradual take-up - parents/YP (advisors) will need to become aware of the new powers and appeals can only be made in respect of decisions after 3 April 2018 LAs will need to inform parents/YP in their decisions of National Trial – template letters will be produced by Mott MacDonald Volume of appeals is currently rising – the National Trial won’t add to that number as cannot register an appeal just on Heath and/or Social care issues Transfer of ALL Statements of SEN to EHC plan MUST be completed by 31 March 2018 Copyright SEND Tribunal 2018 69

What is expected of you and the support that is available
71

Recap – powers of the Tribunal (I)
If the Tribunal orders a plan to be made – Tribunal has power to recommend health and social care needs/provision are specified when drawing up the plan. If health or social care needs/provision are not included in the plan – Tribunal has power to recommend it is specified in the plan. If health or social care needs/provision are included in the plan – Tribunal has power to recommend that the need/provision is amended. 72

Recap – powers of the Tribunal (II)
The Tribunal can only make a recommendation about health and social care needs/provision if it is part of an appeal relating to: a decision by the LA not to issue an EHC plan a decision by the LA not to carry out a re-assessment for a child/young person who has an EHC plan a decision by the LA not to amend an EHC plan following a review or re- assessment a decision by the LA to cease to maintain an EHC plan 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 73

Roles and Responsibilities – LAs (I)
Must notify parents and young people of the Tribunal’s extended powers when LAs: notify a parent/young person of a decision not to issue an EHC plan send a final version of an EHC plan to a parent/young person send an amended version of an EHC plan to a parent/young person notify a parent/young person of a decision not to carry out a re-assessment where an EHC plan already exists notify a parent/young person of a decision not to amend an EHC plan following a review or re-assessment notify a parent/young person of a decision to cease to maintain an EHC plan 74

Roles and Responsibilities – LAs (II)
Must include the extended right to appeal in local offers If required, must provide evidence to the Tribunal from the health and/or social care bodies in response to the issues raised, within the timeframe specified by the Tribunal As necessary, can seek permission to bring additional witnesses to the hearing Must send the health and social care commissioners’ response to the recommendation to the evaluator at within one week. 75

LA SEND Teams – Preparing for the trial
Need to update local systems, policies and procedures to comply, including: Updating decision letters Updating local offers to include co-produced information on the trial Ensuring IASS can provide parents and young people with information and guidance about the new rights Training staff and disseminating key information and guidance Ensuring local CCGs and children and adult social care leaders are aware of the trial and the implications Identifying lead contacts for appeals for: CCGs (each CCG, where an LA is covered by more than one) Children social care services and Adult social care services Template wording will be provided 76

Roles and Responsibilities: Health and social care commissioners
Must respond to any request for information and evidence within the timeframe set by the Tribunal If required, must send a representative to attend the hearing to give oral evidence Must respond in writing within 5 weeks following a recommendation to the parent or young person and the LA setting out the steps they will take or why they will not follow the recommendation 77

Roles and Responsibilities: Health Commissioners - Preparing for the trial
Includes ALL Health Commissioning Bodies - a need for CCGs to work together with specialised commissioning colleagues. Health Commissioners will need to update their local systems, policies and procedures to comply, including: Drafting response to recommendation letters Training staff and disseminating key information and guidance to those involved in the process Consider local processes to ensure that there is a clear communication system, and understanding of any previous learning points around complaints/tribunals. 78

Roles and Responsibilities Social care commissioners- Preparing for the trial
Ensure both adult and children’s social care services are fully informed and prepared Social care commissioners will need to update their local systems, policies and procedures to comply, including: Drafting response to recommendation letters Training staff and disseminating key information and guidance to those involved in the process Consider local processes to ensure that there is a clear communication system, and understanding of any previous learning points around complaints/tribunals. 79

Support package Regional induction events in January/February 2018 for local areas and training events during the trial Guidance document for education, health and social care professionals and parents and young people Toolkit for LAs with templates and FAQ Ongoing support through a helpdesk, newsletters, webinars, DfE SEND advisers and NHS England IASS and VCS organisations can provide support to families by disseminating information on the trial, supporting the preparation of cases and at hearings, and signposting to mediation and further support. 80

Funding LAs and CCGs will be reimbursed for reasonable costs incurred during the trial A grant will be awarded to LAs, up to £4,000 per case, to include: Informing social care and health commissioners of the appeal and collecting evidence from social care and health commissioners to send to the Tribunal Possible attendance at an extended Tribunal hearing Sending response to recommendation letters Payment to social care and health commissioners in relation to the gathering of evidence, creating an outline argument, sending evidence to the LA, case management activity, sending a witness to a hearing and responding to recommendations from the Tribunal LAs to submit a monthly claim to Mott MacDonald LA responsibility to transfer funding claimed by health commissioners 81

Evaluation: Jan 2018-March 2021
Evaluation will help decide continuation of powers and will cover: implementation of duties perceived benefits for families and agencies satisfaction with processes economic/cost data Telephone and online interviews of parents and young people In-depth case studies in 12 local areas (3 waves) Online annual survey of LAs and CCGs Analysis of responses to recommendation letters Synthesis and analysis Evaluation report Research brief Good practice guide 82

Evaluation – opportunities for participation
12 case study areas visits in March-April 2018, June 2019 and June 2020 interviews with SEND, health and social care commissioners, family support organisations and legal services representatives additional opportunity to feed into development of trial Benefits of being involved include: receive individual case study report be showcased in good practice guide raise profile of trial in your local area 83

Evaluation – opportunities for participation
annual online commissioners’ survey (Summer 2019 and Summer 2020): short, easy to complete survey on costs and benefits of trial for SEND, health and social care commissioners sense-checking costs data and assessments of the costs associated with different types of cases through one-to one- discussions with evaluators raising awareness of the evaluation among colleagues providing contact details for the online survey 84

The Toolkit Guidance document for commissioners and parents and young people Summary for commissioners and parents and young people Sample wording to include on Local Offers Sample decision letter wording Sample letter for drafting responses to recommendations Frequently asked questions document Expense form and grant agreement template Link to the regulations Further information and guidance 85

SEND Tribunal National Trial: Guidance
Requirements and expectations for LAs, health and social care commissioners The Tribunals appeals process Support available and further information Implications of not following recommendations Role of the research and evaluation team 86

Support during the trial
Mott MacDonald Ongoing queries re operation of the trial MM DfE SEND Adviser Support LA link SEND Adviser available as second opinion on LA documentation – letters, local offer, information leaflets An on-going contact for LAs over specific trial queries Conduit for information exchange and problem-solving between DfE and LAs NHS England Local SEND Leads with support from the National SEND Lead will be the main contact for health queries and act as a conduit for information exchange to Department of Health. 87

Activity – 15 mins In local area groups, start to consider the actions that need to be undertaken by 3 April 88

An opportunity for final questions
relating to all issues covered today 89

SEND Single Route of Redress – National Trial

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