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

2. Tribunal statistics 2015-16 - Appeals registered/ decisions
Registered Decided For P/YP For LA
2015 –
(c) SEND Tribunal 2017

3. Types of appeal
15/16 14/15 Refusal to assess/reassess Refusal to issue a statement/Plan Contents of statement/Plan only Contents + placement Placement only Amend after AR Cease to Maintain Statement/Plan 30 38
(c) SEND Tribunal 2017

4. Outcome of appeals
2015/16 D W/C Refusal to assess/reassess Refusal to issue a statement/Plan Contents of statement/Plan only Contents + placement Placement only Amend after AR Cease to Maintain plan 8 3
(c) SEND Tribunal 2017

5. Procedural Changes

6. 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

7. 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 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

8. 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

9. 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

10. Top 5 issues in appeals

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. Recommendations Pilot

18. Purpose & scope of Recommendations Pilot
Initially from 1 April 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. Post School EHC requests, assessment & plans

26. 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

27. 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

28. 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

29. 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

30. 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

31. Procedural changes coming this coming year

32. 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

33. 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

34. 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

35. 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

36. Top tip remains: Know the law – apply the law