This post is by Yo Dunn, who runs ConsultYo, a legal framework consultancy and training business, specialising in autism issues – www.consultyo.com
From 3 April 2018 for two years a national trial is taking place which empowers the First-tier Tribunal Special Educational Needs and Disability (SENDIST) to make non-binding recommendations about health and social care aspects of Education, Health and Care (EHC) plans. The new powers are contained in the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017.
The powers are only able to be exercised where a parent or young person is appealing some aspect of the EHC plan decision-making relating to special education to the tribunal. This means that, like EHC plans themselves, this option is not available as a mechanism to challenge health or social care decision making in relation to a child or young person who has only health and/or social care needs and does not also have special educational needs. Further, the tribunal power relates only to aspects of health or social care needs or provision which are “related” to the child’s special educational needs, plus any social care provision which is being made under s.2 Chronically Sick and Disabled Persons Act.
Despite the non-binding nature of any recommendations themselves, there are elements of compulsion on health and social care responsible bodies.
During the tribunal process, responsible commissioning bodies can be compelled (under the Tribunal Procedure rules) to respond to requests by the Tribunal for information or evidence and to send a witness to a hearing if required by the Tribunal.
These procedural powers are potentially useful to complainants who may be struggling to obtain relevant information or documents from a health or social care commissioning body.
Perhaps even more usefully, the regulations require responsible commissioning bodies to respond in writing to any non-binding recommendations the Tribunal makes, giving reasons. Again, this is potentially useful to complainants who may be struggling to obtain a clear decision-making rationale which can then be challenged via Judicial Review based on the lawfulness of the decision making.
The power for the tribunal to make non-binding recommendations applies to recommending that particular health or social care needs are specified in the EHC plan, and/or that amendments be made to the provision specified for those needs. Note that the tribunal is not empowered to recommend amendments to the outcomes specified in the EHC plan (a limitation which also applies to the education content). This may be highly relevant where the outcomes are expressed in a manner which is vague, aspirational or loose, because appropriateness of any proposed provision will be related to the outcomes it is intended to achieve.
If, despite the non-binding nature of the recommendations, a plan was to be actually amended in response to a Tribunal recommendation, a crucial consideration is whether anyone can be held to account for whether the provision is actually made. Section 42 Children & Families Act 2014 creates clear statutory duties on: the local authority to “secure” the educational provision specified in an EHCP (s.42(2)) and the responsible commissioning body to “arrange” the healthcare provision specified in an EHCP (s.42(3)). However, there is no analogous duty regarding social care provision. Consequently, the tribunal recommendation power adds little or nothing to the enforceability of social care provision, even once it is specified in an EHCP.
The existence of this new power is likely to lead to questions as to whether an appeal to Tribunal has been pursued as a first resort approach to resolution and, if not, why not. This question will inevitably arise when approaching the Ombudsman and/or at the permission stage of a Judicial Review. In some cases, the answer may be that health or social care recommendations could not be pursued in front of the tribunal because there were no educational issues in dispute or that any education dispute had been resolved whilst the health or social care dispute remained. In other cases, it may be appropriate to point to the non-binding nature of the recommendations together with evidence, if any, of the local authority’s willingness or otherwise to modify the EHCP in response to recommendations (such as those from relevant professionals). Finally, in case where the content or wording of outcomes are disputed, the lack of tribunal power to recommend changes to outcomes may be relevant to whether an appeal to tribunal is a viable alternative for dispute resolution.
 This is because the qualifying criterion for issuing an EHCP is that it is necessary for Special Educational Provision to be made for the child or young person, see s.36(3) Children and Families Act 2014