Children and Families Act (CFA) 2014 Part 3 introduced a new statutory regime of support and services for children and young people1A young person is defined in s83(2) as ‘a person over compulsory school age but under 25’. with special educational needs and disabilities (SEND) in England, with the key aim of promoting a more holistic approach to meeting needs across education, health and social care. It replaced statements of special educational needs with education, health and care plans (EHCPs), designed to draw together a child’s or young person’s education, health and social care needs and provision into one cohesive document. Further, it placed new duties on local authority SEND and social care teams, along with responsible commissioning bodies (primarily clinical commissioning groups (CCGs)), to collaborate and cooperate with one another in the production and delivery of EHCPs (ss25–26, 28–29 and 31).

This lack of integration at appeal level represents a barrier to effective justice for children and young people with complex SEND whose needs cross the boundaries of education, health and/or social care.

First, the SEND appeal framework requires parents and young people to carry out the often artificial exercise of disentangling educational needs from health and/or social care needs, in order to determine:

The significant grey area between educational and non-educational needs has long been recognised (for example, Bromley LBC v Special Educational Needs Tribunal and others [1999] 3 All ER 587; (1999) 2 CCLR 239), and difficulties in teasing them apart can generate disputes between the relevant statutory agencies, and between those agencies, parents and young people. These disputes can lead to delays in children and young people receiving the support they need, and can risk them falling between two stools for funding of that support.

Second, the fact that the SEND Tribunal only has jurisdiction over educational issues prevents it from taking a holistic and person-centred approach to meeting children’s and young people’s needs, and, more practically, from ensuring that both the local authority and responsible commissioning body contribute towards a complete package of provision. This problem is exemplified by East Sussex CC v KS [2017] UKUT 273 (AAC); [2018] AACR 3; November 2017 Legal Action 23, which centred around the placement of a five-year-old girl, L, who had severe and complex medical and educational needs. The Upper Tribunal (UT) set aside the SEND Tribunal’s decision to name a special school that could otherwise have been able to meet those needs, on the basis that the CCG had not agreed to part-fund the clinical component of the school fees, and the SEND Tribunal had no power to order it to do so.

Finally, a lack of integration at appeal level can create additional burdens for families of children and young people with complex SEND, who may have to pursue multiple routes of challenge (for example, internal complaints arrangements, the ombudsman (either the parliamentary and health service ombudsman in relation to health or the local government and social care ombudsman in relation to social care) or, exceptionally, an application for judicial review).

These problems were recognised during the passage of the CFA 2014 through parliament, with a number of sector organisations pressing for a single route of appeal against decisions relating to EHCPs.2See, for example, Get in on the Act: Children and Families Act 2014, Local Government Association, April 2014, page 4, and Children and Families Bill – Bill No 131 of 2012-13: Research Paper 13/11, House of Commons Library, 14 February 2013, pages 77–79. In response to this, the government agreed to introduce a pilot scheme empowering the SEND Tribunal to make non-binding recommendations about health and social care.

The first pilot scheme (SEND (First-tier Tribunal Recommendation Power) (Pilot) Regulations 2015 SI No 358), which ran from April 2015 to August 2016 with a relatively small number of local authority participants, did not generate a sufficient number of cases to be able to determine the effectiveness of these new powers (MA Cullen et al, Review of arrangements for disagreement resolution (SEND): research report, Department for Education/Ministry of Justice, March 2017, para 4.2.7, page 31). That said, the review of the scheme tentatively noted some positive results, including more joined-up working across education, health and social care, and increased knowledge of each sector’s relevant legal frameworks and practices. Parents were particularly positive about being able to present the health and social care needs of their children alongside their education needs.

Of course, the final evaluation of how successful the national trial has been in practice will not be available until after its conclusion in 2020. However, it is possible at this stage to identify problems in the principles of the scheme.

First, in order to register an appeal under the national trial, it must have an educational element (SEND (First-tier Tribunal Recommendations Power) Regulations 2017 regs 4–5). If the dispute relates only to the health or social care aspects of an EHCP, or indeed if the educational aspects of the dispute are settled at mediation leaving only the health or social care aspects outstanding, then the SEND Tribunal will not have jurisdiction to hear the appeal. Parents and young people in this position will have to pursue other routes of challenge, leading to continued delay and uncertainty.

Second, recommendations made under the national trial are non-binding. There is an expectation that recommendations will generally be followed, and that they should not be rejected without careful consideration (SEND Tribunal: single route of redress national trial – guidance for local authorities, health commissioners, parents and young people, Department for Education, March 2018, page 24). Further, Ofsted and the Care Quality Commission will review responses to recommendations as part of their pre-inspection analysis. Nonetheless, the non-binding nature of recommendations creates continued uncertainty following the conclusion of an appeal. Indeed, where the recommended health or social care provision is a necessary component of a child or young person’s package of care, then a negative decision could render the EHCP as a whole unworkable.

Where a local authority or responsible commissioning body declines to implement a recommendation, the only recourse for parents and young people is a complaint to the relevant ombudsman or an application for judicial review (SEND Tribunal: single route of redress national trial – guidance for local authorities, health commissioners, parents and young people, page 28; see also NHS West Berkshire Clinical Commissioning Group v First-tier Tribunal (Health, Education and Social Care Chamber), and AM, MA and Westminster City Council (interested parties) [2019] UKUT 44 (AAC); May 2019 Legal Action 37). This is another hurdle for parents and young people who have already been through the SEND Tribunal appeal process.

Third, the national trial does not require social care teams and responsible commissioning bodies to take ownership of EHCPs, with ultimate responsibility continuing to rest with the local authority SEND team (see SEND Tribunal: single route of redress national trial – guidance for local authorities, health commissioners, parents and young people, page 9). The fact that responsible commissioning bodies and social care teams are less engaged with the appeals process is problematic for two reasons. It increases the risk of these agencies failing to provide necessary information. Further, it gives them greater latitude to reject SEND Tribunal recommendations. Whereas a respondent to an appeal might be expected to make all relevant arguments against the inclusion of a particular type of provision in an EHCP, in order for the SEND Tribunal to make a fully informed and incontrovertible decision (subject to an appeal to the UT on a point of law), as a witness the social care team or responsible commissioning body may, in its response refusing to implement a recommendation, rely on matters that were not necessarily argued before, or fully dealt with by, the SEND Tribunal.

This is supported by NHS West Berkshire Clinical Commissioning Group v First-tier Tribunal (Health, Education and Social Care Chamber) (see above), in which the CCG’s application to be joined as a party in a national trial appeal was refused on the basis that this was not required in the interests of fairness. UTJ Mitchell pointed out that a tribunal recommendation did ‘not determine a CCG’s legal obligations’ (para 90), but merely created a ‘procedural requirement’ that was unlikely to be ‘unduly onerous’ (para 91). Where a CCG refused to follow a recommendation, a legal challenge by the parent or young person was not inevitable. Further, as long as a CCG’s reasons for, and procedure adopted in, refusing to follow a recommendation were compliant with the criteria applied by the High Court on a judicial review claim and/or the relevant ombudsman, any such challenge would be dismissed. Notably, both of these arenas for challenge are more limited in scope than appeals to the SEND Tribunal, being confined to reviewing the lawfulness of a decision and to considering allegations of maladministration respectively.

This decision used the CCG’s right to refuse to enact a recommendation as a counterbalance to address any potential unfairness arising from its lack of party status within the proceedings. This shows the extent to which health continues to operate on an unequal footing with education within the appeal system. One can infer similar implications for social care.

Finally, the introduction of the national trial does not remove the requirement to resolve disputes about categorisation as education, health or social care. Categorisation continues to be necessary in order to determine whether the SEND Tribunal can order provision to be included in an EHCP, or can merely recommend that it is, and in order to determine whether the local authority or the responsible commissioning body will be responsible for securing and funding it. This will lead to further disputes and delays for the families of children and young people with complex SEND.

Overall, then, while the national trial is undoubtedly a step in the right direction, it does not go as far as creating a consistently effective single route of appeal for children and young people whose needs span education, health and/or social care. In order to deliver effective access to justice for this vulnerable cohort, the SEND Tribunal should be empowered to make binding rulings across all aspects of EHCPs. This, along with the introduction of a funding system for children and young people with complex SEND, at national level and contributed to by all three statutory agencies, would remove the need for many of the disputes about the categorisation of provision and dissipate funding issues, freeing the SEND Tribunal to take a holistic view of the needs of children and young people.