Since 3rd April 2018, the DFE trial extended the powers of the SEND First Tier Tribunal (FTT), giving Appellants the right to request Judicial recommendations about health and social care needs and provision which may be specified in EHC plans. The extension sits alongside the FTT’s existing powers to make orders on the matters set out under S51 (2) of the Children and Families Act 2014. Such matters concern educational need and provision (and issuing and ceasing a plan).
The DFE describe the trial as follows:
It gives parents and young people the opportunity to raise all their concerns about an EHC plan in one place.
Although the health and social care recommendations which may be made by the FTT are non-binding, Appellants and Local Authority Respondents alike, would be wise to regard the trial as a stepping stone towards a much more powerful tribunal and one which may become increasingly relevant to Clinical Commissioning Group managers and professionals working in Adults’ and Children’s Social Care Departments.
In addition, although the recommendations themselves are non-binding, such professionals must, under The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017:
Respond to requests for information, within the timescale specified by the FTT.
Send a witness where required to do so by the FTT
Respond within 5 weeks of the FTT to the parent or young person, and for health commissioners to the LA, to state what steps they have decided to take or to give reasons for any decision not to follow the recommendation(s)
At present, the assessment and provision of health and social care needs of children and young people can be contested in courts by way of Judicial Review.
If the evaluation of the trial establishes that FTT non-binding recommendations have been ineffective (which seems entirely possible) in respect of health and social care, then it is reasonable to conclude that the DFE will seriously consider upgrading the powers of the FTT to allow it to make binding orders in this regard. Such an outcome would then provide an effective “Single Route of Redress” for parents and young people; bringing education, health and social care matters together.
Local Authorities (LAs) should be careful not to be caught out by this expansion, by traditional and separate departmental approaches to performing their statutory duties. The convergence of education, health and social care assessment, provision planning and delivery is now moving under the increasing jurisdiction of the FTT and is effective until young people reach 25 years of age (as has been the case since the Children and Families Act, under the 0-25 agenda).
In essence, the extension of FTT powers, the upper age limit, in addition to the FTT’s shift away from traditional day centre type support, towards educational provision (and an expansion of what the FTT and Upper Tier has said should be regarded as educational provision) for young adults, has meant that SEN should not be regarded as a peripheral consideration.
Parents or young people who may wish to appeal in respect of Health and Social Care aspects of an EHC Plan are now able to seek redress by way of a recommendation of the FTT. Where such a recommendation is not followed by the relevant body, then application by way of Judicial Review is available. Parents and young people are advised in such circumstances to seek legal advice as soon as possible (note the time-limit for Judicial Review is three months from the date of the relevant decision).
One Upper Tier Tribunal case has highlighted some of the issues which will arise, if DFE were to move towards binding orders, rather than non-binding recommendations. Any expansion of powers over the CCG will undoubtedly have the capacity to create a situation in which the FTT is no longer charged with solely deciding issues of a bilateral nature between the appellant and a Local Authority.
The FTT, in addition to dealing with such issues, may become the effective decision-maker in contests of funding responsibilities between CCGs and Local Authorities, thereby rendering disputes, tripartite in nature. This will effect only a small proportion of appeals, but they will be significant, because they will involve what will be deemed high-cost, long term placements of those children and young people who have special educational needs.
Commissioners working in Local Authorities and CCGs will be aware that below the veneer of any joint health and social care partnership arrangements, whether stated as pooled or not, there lies an inherent conflict as to which body should pick up which funding tab (aka the recipients of services).
The conflict is historic and arises from the two pillars of the welfare state; the NHS Acts on the one hand, and the social care Acts on the other (including the Care Act and the Children Act). The conflict may be largely hidden from view, but it is and has been there since the late 1940s.
Such a tripartite conflict has already surfaced, during the trial and has been before the Upper Tier Tribunal in the case of NHS West Berkshire Clinical Commissioning Group v The First-tier Tribunal (Health, Education and Social Care Chamber) (interested parties).  UKUT 44 (AAC).
The details of the case are worthy of an article on their own. It is however worthwhile to note for present purposes, that the Upper Tier refused the CCG’s appeal to be made a party to proceedings, substantively upon the “recommendation only” powers, and the fact that the Children and Families Act and its SEN sections currently confer statutory responsibilities on Local Authorities only, on matters of education. Whether government amends the Act to achieve an effective single route of redress will be a serious consideration.
The blurring of the lines between what provision a child or young person should receive in order to meet his or her educational needs and what should be deemed social care, brings with it, an age-old conflict between health and social care. Practitioners in this area, particularly adult social care lawyers and their social worker clients, will not be surprised to know that this conflict is as it always was – and concerns who shall be deemed to be a recipient of Continuing Health Care, and who shall be deemed a recipient of Social Care?
The conflict issue may well be the same, but we may yet see a different arena in which the issues are decided.
Nick McCall joined Central Chambers from a Local Authority background. He is undertaking a pupillage under Joseph Lynch and is focussing on Family Law at present.
When Nick begins his second-six stage of pupillage, he will be accepting instructions in SEN work as he already has experience, knowledge and expertise in this area.
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