Health & Social Care Needs and Provision in an EHC Plan
The Special Educational Needs and Disability Tribunal (SEND) will soon be able to make non-binding recommendations on the health and social care aspects of a child or young person’s EHC Plans, alongside the educational needs and provision currently subject to appeal.
This follows a pilot project that was recently undertaken in 17 Local Authority areas, which will now be expanded to a national trial within all Local Authorities.
The new pilot project will apply to decisions that are made on or after 3 April 2018. If you receive a decision on or after 3 April 2018 for any of the following, the Tribunal would be able to consider the health and social care needs and provision as part of your education appeal: -
- A decision not to issue an EHC Plan following an EHC Needs Assessment or reassessment;
- A decision not to carry out an EHC Needs reassessment;
- An appeal against the contents of an EHC Plan following the issue of a final EHC Plan;
- A decision following an annual review not to amend an EHC Plan;
- A decision to cease to maintain an EHC Plan.
Currently, parents and/or the young person is able to make an appeal against Sections B, F and I. From 3 April 2018, appeals could include Sections B, C, D, F, G, H and I of an EHC Plan.
Following an appeal hearing, the Tribunal will make recommendations about health or social care needs and/or provision and send a copy of the decision to the Local Authority (for social care) and the commissioning group (for healthcare) who must respond in writing within 5 weeks to the child’s parents or young person confirming whether or not it will follow the recommendations. If it will follow the recommendations then it must set out in writing what steps it has taken in light of the recommendations. If it decides not to follow the recommendations, it must explain why.
Unfortunately, the recommendations on the health and social care aspects will be non-binding on the Local Authority. The Local Authority will be required to send a copy of their response to the Secretary of State for Education within one week of receiving the response. However, for parents, if the Local Authority decide not to follow the health and social care recommendations, it is likely to leave only the option of a complaint to the Ombudsman, or in exceptional circumstances considering a further legal challenge by way of an application for judicial review. Neither of these options would resolve matters swiftly, but we do consider the extended pilot project is at least a step in the right direction.
The decision in respect of Sections B, F and I will continue to be binding on the Local Authority.