Children and Young People Aged 0-25 with Special Educational Needs and Disabilities

The Children and Families Act 2014 took forward a reform programme to establish the working principles for children/young people with Special Educational Needs and their carers: 

• Extending the Special Educational Needs (SEN) system from birth to 25 and giving children, young people and their parents greater control and choice in decision-making;
• Establishing birth to 25 Education, Health and Care Plans;
• Offering families Personal Budgets - young people and parents of children who have Education, Health and Care Plans have the right to request a Personal Budget, which may contain elements of education, social care and health funding;
• Creating a duty for joint commissioning which requires Local Authorities and health bodies to work in partnership when arranging provision for children and young people with Special Educational Needs;
• Requiring Local Authorities to involve children, young people and parents in reviewing and developing provision for those with Special Educational Needs and to publish a Local Offer of services;
• Extending the entitlement to an assessment to all young carers under the age of 18 regardless of who they care for or the type and frequency of this care;
• Giving Parent Carers the right to a stand-alone assessment;
• Promoting Local Authorities to adopt a key working approach, which provides children, young people and parents with a single point of contact to help ensure the holistic provision and co-ordination of services and support.

OFSTED's Chief Inspector has stressed the importance of ensuring that all placements for all children with SEN are made with due diligence. Before any placement the Local Authority should carry out all necessary checks to make certain that schools are registered with the Department for Education.

The Act gives significant rights directly to young people once they reach the end of compulsory school age (the end of the academic year in which they turn 16). When a young person reaches the end of compulsory school age, Local Authorities and other agencies should normally engage directly with the young person rather than their parent, ensuring that as part of the planning process they identify the relevant people who should be involved and how to involve them. Most young people will continue to want, or need, their parents and other family members to remain involved in discussions and decisions about their future. Some young people, possibly some parents, will not have the mental capacity to make certain decisions or express their views.

The Act legislates as to how Local Authorities must provide services to adults requiring care and support that will enable them to achieve the outcomes that matter to them in their life. The legislation changed from the "duty to provide services" to "meeting needs" and promotes the idea of what an individual needs rather than a 'one size fits all' approach. It introduced the 'Wellbeing Principle', which applies in all cases where a Local Authority is carrying out an assessment on an individual and when it is providing a care and support function.

The Care Act 2014 applies equally to adults with care and support needs and their carers. It also applies to children with disabilities and their carers, when they reach the transition stage from children's into adults' services.

The Care Act emphasises prevention and delaying the need for support. Local Authorities are expected to establish information and advice services locally that will be easily accessible to all adults requiring care and support as well as their carers. Need assessments or Carers assessments must be carried out whenever it appears that one is necessary. Once an assessment has been made there is a duty on Local Authorities to produce a Care and Support Plan and to offer a personal budget. The person must be closely involved throughout this process. The Act established a duty to review Care and Support Plans to ensure that they continue to meet the needs of the person.

The Children and Families Act 2014 requires the Local Authority to engage with other partners it thinks appropriate to support young people with SEN and disabilities. This might include voluntary organisations, CYPMHS, local therapists, Jobcentre Plus and their employment support advisers, training/apprenticeship/supported employment providers, housing associations, careers advisers, leisure and play services. Local Authorities and Integrated Care Boards (ICBs) should consider the role that private, voluntary, and community sector providers can play in delivering services.

Local Authorities should adopt a key working approach, which provides children, young people, and parents with a single point of contact to help ensure the holistic provision and co-ordination of services and support. Children and young people should receive the right help at the right time.

The Designated Medical Officer provides the point of contact for Local Authorities, schools and colleges seeking health advice on children and young people who may have SEN or disabilities, and provides a contact for ICBs or health providers so that appropriate notification can be given to the Local Authority of children under compulsory school age who they think may have SEN or disabilities.

As good practice, an environment should be created which allows for effective practice and for multi-agency working to flourish.  Local area partners should work together to plan, evaluate and develop the SEND system.  

Local Authorities must review the special educational provision and social care provision in their areas for children and young people who have SEN or disabilities and the provision made for local children and young people who are educated out of the area, working with the partners to their joint commissioning arrangements.

Joint commissioning arrangements should be used to enable partners to make best use of all the resources available to improve outcomes for children and young people in the most efficient, effective, equitable, and sustainable way. Joint commissioning arrangements must consider the needs of children and young people with SEN and disabilities.

As good practice, children and young people with SEND should, so far as practicable, have:

• Developed the knowledge, skills, and behaviours to gain employment or meaningful occupation, move on to further or higher education, and live as healthily and as independently as possible;
• Developed their self-esteem and resilience;
• Made friends, and should feel safe, valued, and visible in their local communities;
• Gained from stable, supportive relationships and environments;
• Had the opportunity to participate in community activities to widen their understanding of the opportunities available to them now and in their future;
• Participated in decision-making about their own plans and support;
• Had support provided when they needed it, and feel supported and believe that adults understand and advocate for them;
• Been supported through any adverse experiences they may have had.

The Local Authority must consult with children and young people with SEN or disabilities and their parents.

As good practice, children and young people with SEND should be valued, visible, and included in their communities.

• Children and young people should be able to access impartial information, advice, and support that enables them to make informed choices about their future;
• Children, young people, and families should be supported to understand their rights, make choices and contribute to decision-making about their plans and support;
• Children and young people should understand their plans and support, including intended outcomes, and why some changes are not possible;
• Leaders should consider the specific needs of groups of children and young people with SEND, and how best to engage them in co-production;
• Leaders should ensure that decisions relating to services are appropriately shaped by children and young people’s needs, experiences, ambitions, and outcomes;
• Leaders should give feedback to children, young people, and parents on changes they have made to their area’s services, and explain where change is not possible and why;
• Children and young people and parents and carers should understand what community activities are available;
• Children and young people should be supported to participate, where appropriate, in activities, and to make friends and develop positive relationships;
• Children and young people should be supported to develop their confidence, resilience, and knowledge so that they can participate in universal and specialist activities as appropriate.

Leaders should actively engage and work with children, young people, and families. Processes and systems should be set up to support practitioners to work together and share appropriate information in a timely manner, including strong systems for identifying and responding to risks to children and young people with SEND.

Leaders Should Create an Environment for Effective Practice and Multi-agency Working to Flourish:

• Ensure that practitioners are clear on their individual roles and how they can best work together to improve outcomes for children and young people;
• Ensure that practitioners have the appropriate skills to understand children and young people’s needs and aspirations, and to create an inclusive environment;
• Encourage practitioners working together to focus on the child or young person, identifying alternative solutions when existing options do not meet needs and aspirations effectively;
• Ensure that practitioners working with children and young people with SEND have the right knowledge and skills to reduce the risk of harm, and understand that children and young people with SEND may be more vulnerable to abuse, neglect and exploitation.

Leaders Should Have an Accurate, Shared Understanding of the Needs of Children and Young People in their Local Area:

• Gather accurate, timely information about children and young people with SEND in their local area and monitor the changing needs of the population, including using the perspectives of children, young people and families;
• Understand the experiences and outcomes of children and young people with SEND in their area, their backgrounds and identities, including any barriers to them accessing support, and their needs and strengths;
• Share information across education, care and health services so they can learn from different perspectives and approaches.

Leaders Should be Ambitious for Children and Young People with SEND:

• Have an ambitious strategy that defines the shared outcomes they will work collectively to achieve for all children and young people with SEND, and  embed an aspirational culture of high expectations and quality across services and provision;
• Understand their responsibilities and accountabilities, including their statutory duties and their individual responsibilities in the wider area strategy;
• Responsibilities are delegated in line with leaders’ legal duties and there is strong oversight of these resulting activities;
• Processes for making decisions are structured so that the leaders responsible can swiftly agree to the changes that are required to improve services;
• Leaders challenge themselves and each other to improve experiences and outcomes for children and young people with SEND.

Leaders Should Evaluate Services and Make Improvements:

• Jointly evaluate whether their services and provision are improving outcomes for children and young people with SEND, not only whether children and young people have received the services;
• Monitor whether there are sufficient services and provision to meet the needs and aspirations of the children and young people in their area and take appropriate action as a result;
• Use information from a range of sources in their evaluation, including feedback from representative groups, children and young people using services and data relating to outcomes to improve their services and provision;
• Have established clear processes to enable services and providers to evaluate and improve their provision regularly.

Report of the Administrative Justice Council’s Working Group on Special Educational Needs and Disability

Special Educational Needs and Disability: Improving Local Authority Decision Making - Report of the Administrative Justice Council's Working Group on Special Educational Needs and Disability made the following recommendations that local authorities should:

• Routinely reflect on their experiences at tribunal hearings and seek to learn from the First-tier tribunal’s written decisions;
• Work together with experts and their professional bodies to ensure wording in reports is chosen to ensure the appropriate level of service will be allocated to the child/young person and outcomes for each need/provision identified. Local authorities should include the ‘who, what, when and how long’ details that are meant to spell out the Local Authority’s duties to the pupil;
• Invest resource early on in the evidence-gathering stage and in communication with parents and schools before decision-making so that staff collating evidence for decision-makers have the expertise and authority to ensure the evidence is up-to-date and complete, and to ensure that caseworkers have time to speak with families and young people and placement settings in advance of a decision being made;
• Collaborate and communicate with parents, young people and schools/colleges to ensure that families, young people, and placement settings are clear what evidence is being considered and to allow for contributions from those people and settings affected by decisions;
• Make the voice of the child or young person the golden thread throughout decision-making as personal testimony is a valuable form of evidence that often fills out the picture and leads to changed decisions on EHC needs assessments and on EHC Plans;
• Adopt a procedure of “Way Forward” meetings with families (including with schools and colleges where appropriate) following a panel decision;
• Provide written feedback to those who have made an application in relation to an EHC plan setting out: (i) what they have been asked to decide; (ii) the evidence they have considered; (iii) their findings on the evidence they have been provided with; and (iv) the decision they have taken as a result;
• Ensure there is a mechanism for providing support to meet need when there is likely to be a delay in agreeing or finalising an EHC plan;
• Be proactive to achieve better partnership working with social care colleagues and health bodies;
• Support mediation that takes place between families and schools over school-based disputes;
• Ensure parents, children and young people have access to impartial support, from SENDIASS. This should include signposting to independent (non-statutory) information and advice services;
• Commit to mediation and properly prepare for it;
• Invest in gathering and learning from feedback;
• Invest in and adequately resource their complaint handling function;
• Ensure democratic oversight of complaint handling, through an appropriate committee, in order to drive improvements and increase accountability;
• Ensure that the person designated as a local authority’s monitoring officer should provide some internal oversight of the way in which lessons are learned from complaints.

An Education, Health and Care Needs Assessment is an assessment undertaken by a Local Authority of the education, health and care needs of a child or young person aged 0-25 with Special Educational Needs (SEN) or disabilities to determine whether it is necessary to make provision for those needs in accordance with an education health and care plan.

The following have a specific right to ask a Local Authority to conduct an Education, Health and Care Needs Assessment:

• A child's parent;
• A young person over the age of 16 but under the age of 25; and
• A person acting on behalf of a school or post-16 institution (this should be with the knowledge and agreement of the parent or young person where possible).

In addition, anyone else can bring a child or young person who has (or may have) SEN to the attention of the Local Authority, e.g. foster carers, health and social care professionals, education staff, Youth Offending Teams, the National Probation Service, or a family friend.

Following a request or a child having been brought to its attention, the Local Authority must (unless it has already undertaken such an assessment during the previous 6 months) determine whether an Education, Health and Care Needs Assessment is necessary and communicate that decision within 6 weeks. It must give its reasons where it decides not to proceed.

Where the Local Authority considers that special educational provision may need to be made in accordance with an Education, Health and Care Plan and is considering whether an Education, Health and Care Needs Assessment is necessary, it must notify:

• The young person/parent (and must inform them of their right to express written or oral views and submit evidence);
• The health service (the relevant Integrated Care Board (ICB) or NHS England where it has responsibility for a child or young person);
• Local Authority officers responsible for social care for young people with SEN;
• Where the child or young person attends an education establishment, the principal (or equivalent).

In considering whether an Education, Health and Care Needs Assessment is necessary, the Local Authority should consider whether there is evidence that despite the education establishment having taken relevant and purposeful action to identify, assess and meet the special educational needs of the child/young person, they have not made expected progress.

If the Local Authority decides not to conduct an Education, Health and Care Needs Assessment, it must notify the young person/parent, the education provider and the health service and give the reasons for its decision. The Local Authority must also inform the young person/parent of their right to appeal that decision and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services (see Section 15, Resolving Disagreements). The Local Authority should also provide feedback collected during the process of considering whether an Education, Health and Care Needs Assessment is necessary, including evidence from professionals, which the parent, young person, early years provider, school or post-16 institution may find useful.

Local Authorities must consult the child/young person/parent throughout the process of assessment and production of an Education, Health and Care Plan.

Education, Health and Care Needs Assessments should be combined with other social care assessments where appropriate. As far as possible, there should be a 'tell us once' approach to sharing information during the assessment and planning process so that families and young people do not have to repeat the same information to different agencies, or different practitioners and services within each agency. It must be discussed with the child/young person/parents what information they are happy for the Local Authority to share with other agencies. A record should be made of what information can be shared and with whom.

Where particular services are assessed as being needed, their provision should be delivered and should not be delayed until the Education, Health and Care Plan is complete.

Following the completion of an Education, Health and Care Needs Assessment, if the Local Authority decides that an Education, Health and Care Plan is not necessary, it must notify the child/young person/parent, the education and the health service and give the reasons for its decision. This notification must take place as soon as practicable and at the latest within 16 weeks of the initial request or of the child or young person having otherwise been brought to the Local Authority's attention. The Local Authority must also inform the child/young person/parent of their right to appeal that decision and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services.

As good practice, children and young people's needs should be identified accurately and assessed in a timely and effective way, so as to prevent needs from escalating. Practitioners should assess the strengths and determine the aspirations of the child or young person alongside their individual needs. Timely referrals should be made to other services and agencies, where necessary.

Young people who do not already have an Education, Health and Care Plan continue to have the right to request an assessment of their SEN at any point prior to their 25th birthday (unless an assessment has been carried out in the previous 6 months).

Where such a request is made, or the young person is otherwise brought to the attention of the Local Authority as being someone who may have SEN, the Local Authority must follow the guidance set put above for carrying out Education, Health and Care Needs Assessments. In addition, when making decisions about whether a plan needs to be made for a 19- to 25-year-old, Local Authorities must consider whether the young person requires additional time, in comparison to the majority of others of the same age who do not have SEN, to complete their education or training.

For disabled children who are likely to have needs when they turn 18, then under the Care Act 2014, the Local Authority must undertake a transitions assessment if it considers it will benefit the individual in them doing so. This is even if the child is not receiving any current services. The Act does not specify a specific age, prior to 18, at which an assessment can be requested, but the phrase 'significant benefit' is used by which the Local Authority can decide if the young person or their carer would benefit from an assessment.

The assessment is expected to identify what outcomes the person wants to achieve, what their needs are in the present and what they are likely to be when they turn 18. Advice and information must also be provided about what services exist to either support needs or to reduce them – this includes information on resources deemed as being outside 'formal' services.

If the Local Authority deem that an assessment is not required, then this must be put in writing to the service user, and information about local advice services provided.

When an assessment takes place, the Local Authority is expected to produce a Care and Support Plan at its conclusion, that the young person or carer has been closely involved in formulating in order to achieve their identified outcomes. This plan will have to be reviewed at regular intervals.

The Act recognises that there are likely to be several agencies involved in a young person's or carer's life. Therefore, the Act gives Local Authorities a legal responsibility to cooperate, and to ensure that all the correct people work together to get the transition right. It also allows for multiple assessments by different agencies to be combined to save assessment after assessment from having to take place.

Similarly, a young person's Care and Support Plan could easily become part of an Education, Health and Care Plan, if the young person already has one.

Further details are outlined in Section 11, Transitions from Children's to Adults' Services.

Where a Looked After child is being assessed for SEN it is vital to take account of information set out in their Care Plan. SEN professionals must work closely with other relevant professionals involved in the child's life to ensure that the child's Education, Health and Care Plan works in harmony with their Care Plan and adds to, but does not duplicate, information about how education, health and care needs will be met.

The assessment must be carried out by the Authority where the child lives (i.e. is ordinarily resident), which may not be the same as the Authority that looks after the child. If a disagreement arises, the Authority that looks after the child, will act as the 'corporate parent' in any disagreement resolution.

It is the Looked After child's social worker (in close consultation with the Virtual School Head in the Authority that looks after the child) that will ultimately make any educational decision on the child's behalf. However, the day-to-day responsibility for taking these decisions should be delegated to the carer who will advocate for the Looked After child and make appeals to the First-tier Tribunal (SEN and Disability) as necessary.

For Previously Looked After Children, the SEN assessment should be aware of, and take into account, any factors relating to the child's previous looked after status that are relevant. The child's carer with parental responsibility will ultimately make any educational decision on the child's behalf but should be offered support and guidance from the VSH who might also advocate on the child's behalf where necessary.

Once placed in a school the child's progress will be monitored and promoted by the Designated Teacher who will need to be aware of the child's looked after legal status, contact arrangements and the child's Care Plan including the level of Authority delegated to the named carer.

The Designated Teacher has a wide range of responsibilities, including:

• The development and implementation of the child's PEP and ensuring all other staff in the school are aware of the plan and are working to it;
• Safeguarding;
• Ensuring children who are entitled to Premium Pupil Funding are attracting it and that it is being used to support and benefit Looked After and Previously Looked After Children as intended and this is reflected in the PEP;
• Advising and supporting teachers and other school staff in whole school approaches that enable Looked After and Previously Looked After Children to thrive and achieve;
• Promoting positive home and school links;
• Monitoring the children's progress against their peers.

For a child in a stable, long-term foster placement it may well be appropriate for the carer to take on the responsibility of managing a Personal Budget but this will need careful case-by-case consideration.

For all children who have social care plans, e.g. a child in need plan, the social worker should co-ordinate any outward facing plan with other professionals. Where there are specific child protection concerns resulting in action under section 47 of the Children Act 1989, careful consideration should be given to how closely the assessment processes across education, health and care can be integrated, in order to ensure that the needs of vulnerable children are put first.

Education, Health and Care Plan reviews should be synchronised with social care plan reviews, and must always meet the needs of the individual child.

Under the Young Carers (Needs Assessment) Regulations 2015, a Local Authority must carry out a young carer's needs assessment in a manner which is appropriate and proportionate to the needs and circumstances of the young carer to whom it relates.

The assessment needs to take into account:

1. The young carer's age, understanding and family circumstances;
2. The wishes, feelings and preferences of the young carer;
3. Any differences of opinion between the young carer, the young carer's parents and the person cared for, with respect to the care which the young carer provides (or intends to provide); and
4. The outcomes the young carer seeks from the assessment.

Before the assessment starts the Local Authority must provide the following people with clear information about the manner and form of the assessment, in order to enable the young person to participate with it as fully as possible:

1. The young carer;
2. The person cared for;
3. The young carer's parents;
4. Any other person whom the young carer or a parent of the young carer requests should participate in the assessment.

The assessment must determine the following:

1. The amount, nature and type of care which the young carer provides (or intends to provide);
2. The extent to which this care is (or will be) relied upon by the family, including the wider family, to maintain the well-being of the person cared for;
3. Members of the extended family or friends, and how they can contribute to any identified outcomes;
4. Whether the care which the young carer provides (or intends to provide) impacts on the young carer's well-being, education and development;
5. Whether any of the tasks which the young carer is performing (or intends to perform) when providing care are excessive or inappropriate for the young carer to perform having regard to all the circumstances, and in particular the carer's age, gender, wishes and feelings;
6. Whether any of the young carer's needs for support could be prevented by providing services to:
   1. The person cared for; or
   2. Another member of the young carer's family;
7. What the young carer's needs for support would be likely to be if the carer were relieved of part or all of the tasks the young carer performs (or intends to perform) when providing care;
8. Whether any other assessment of the needs for support of the young carer or the person cared for has been carried out;
9. Whether the young carer is a child in need;
10. Any actions to be taken as a result of the assessment;
11. The arrangements for a future review.

Furthermore, the Local Authority must consider the impact of the needs of the young carer's family on the well-being of the young carer and any child in that family and, in particular, on their education and personal and emotional development.

The Local Authority must both take into account the outcome of any other assessment already undertaken in regard to the young carer, the person cared for or a member of the young carer's family, as well as combine a young carer's assessment with any other assessment being undertaken.

Parent Carers have rights to stand-alone assessments under the Children and Families Act 2014. 

Section 97 of the Children and Families Act 2014 requires Local Authorities to assess parent carers on the appearance of need or where an assessment is requested by the parent.

This is called a "parent carers needs assessment".

Where requested, then the Local Authority must assess whether that parent has needs for support and, if so, what those needs are. The assessment must include an assessment of whether it is appropriate for the parent to provide, or continue to provide, care for the disabled child, in the light of the parent's needs for support, other needs and wishes.

The assessment must also have regard to:

• The well-being of the parent carer; and
• The need to safeguard and promote the welfare of the child and any other child for whom the parent carer has parental responsibility.

Following assessment, the Local Authority must then decide:

• Whether the parent has needs for support;
• Whether the child has needs for support;
• And if so whether those needs could be met (wholly or partly) by services under Children Act 1989, s17.

Services to be provided for parent carers of disabled children can be included in Section H1 of the EHC plan, if the child has one.

As part of transition planning, the needs of carers should also be assessed or reviewed to explore the impact of changing circumstances on the carer.

Under Section 10 of the Care Act 2014 carers for young people over 18 do not have to request an assessment to obtain one; they must be completed by the Local Authority on appearance of need.

The carer does not have to establish that they are providing substantial care on a regular basis to qualify.

The only requirement is that the carer 'may have needs for support – whether currently or in the future'.

The assessment must consider:

• Whether the carer is able/willing to provide and continue to provide the care;
• The impact on the carer's 'well-being' of their caring role;
• The outcomes the carer wishes in day-to-day life;
• Whether the carer works or wishes to work (and/or) to participate in education, training or recreation.

Local Authorities must also consider whether the carer would benefit from preventative services, information and advice. There will be a national eligibility threshold to determine following the assessment whether the carer has eligible needs. Where a carer is assessed as having an eligible need, the Local Authority has a legal duty to meet those needs.

Children/young people/parents have 2 months to register an appeal with the Tribunal (see Special Educational Needs and Disability Tribunal, GOV.UK website), from the date of the notice containing a decision which can be appealed or 1 month from the date of a certificate which has been issued following mediation or the parent or child/young person being given mediation information, whichever is the later. Where it is fair and just to do so the Tribunal can accept appeals outside the 2 month time limit.

The Tribunal can make a recommendation about health and social care needs or provision as part of an appeal by a parent or young person relating to:

• A decision by the LA not to issue an EHC plan;
• A decision by the LA not to carry out a re-assessment for a child/young person who has an EHC plan;
• A decision by the LA not to amend an EHC plan following a review or reassessment;
• A decision by the LA to cease to maintain an EHC plan;
• The description of the child/young person’s special educational needs in an EHC plan;
• The special educational provision specified in an EHC plan;
• The school or other educational institution named in an EHC plan.

The Tribunal also handles appeals against decisions to refuse young people in custody:

• An EHC assessment;
• An EHC plan after assessment;
• A placement to a suitable school or other educational institution after their release.

It also handles appeals against discrimination by schools or Local Authorities due to a child’s disability.

The Tribunal can dismiss the appeal, order the Local Authority to carry out an assessment, or to make and maintain an Education, Health and Care Plan, or to maintain a Plan with amendments. The Tribunal can also order the Local Authority to reconsider or correct a weakness in the plan, for example, where necessary information is missing.

For an appeal against a refusal to issue an EHC plan, if the Tribunal orders a plan to be made, it has the power to recommend that health and social care needs and provision be specified when the plan is drawn up. Where health and social care needs and/or provision are not included in the plan, the Tribunal has the power to recommend they be specified in the plan. Where health and social care needs and/or provision are included in the plan, the Tribunal has the power to recommend that the need or provision be amended. When the Tribunal orders the Local Authority to reconsider the special educational provision in an EHC plan, the Tribunal can also consider whether the education and training outcomes specified are sufficiently ambitious for the child or young person.

Guidance: Carry Out an Order in Special Educational Needs Cases sets out how the local authority must respond to orders made by the Tribunal, including time limits.

Since September 2021, the Tribunal has extended powers to hear appeals and make non-binding recommendations about health and social care aspects of Education, Health and Care (EHC) plans, provided those appeals also include education elements.

See SEND Tribunal: Extended Appeals Guidance for Local Authorities, Health Commissioners, Parents and Young People.

The extended powers enable parents and young people to appeal to the Tribunal about decisions concerning EHC needs assessments and plans. Previously, they were only able to appeal about the special educational needs and provision sections and the placement section of EHC plans. The extended powers give parents and young people rights to request recommendations about the health and social care needs and provision specified in EHC plans, in addition to the educational aspects, when making a SEND appeal. This applies for all SEND appeals apart from those that are only about carrying out an EHC needs assessment. The Tribunal’s extended powers to make non-binding recommendations on the health and social care aspects of EHC plans, give parents and young people the opportunity to raise all their concerns about an EHC plan in one place.

The Tribunal can make non-binding recommendations on:

• The health and social care needs specified in EHC plans;
• The health and social care provision specified in EHC plans related to the learning difficulties or disabilities that result in the child or young person having SEN;
• The social care provision specified in EHC plans that is made under Section 2 of the Chronically Sick and Disabled Persons Act 1970.

If the Tribunal orders a plan to be made it has the power to recommend that, when drawing up the plan, health and/or social care needs and provision are specified. Where health and/or social care needs or provision is not included in the plan the Tribunal has the power to recommend it be specified in the plan. Where health and/or social care needs or provision is included in the plan the Tribunal has the power to recommend that the need and provision be amended. Although any recommendations made by the Tribunal on health and social care elements of an EHC plan are non-binding and there is no requirement to follow them, they should not be ignored or rejected without careful consideration. Any reasons for not following them must be explained and set out in writing to the parent or young person. Should a Local Authority or responsible health commissioning body decide not to follow the recommendations of the Tribunal, parents and young people can complain to the Ombudsman or seek to have the decision judicially reviewed.

The Upper Tribunal in the case of MM (as alternative person for C) v Royal Borough of Greenwich [2024] UKUT 179 (AAC) provided guidance as to the approach the First-tier Tribunal should take when considering whether to make recommendations as to health and social care needs/provision in Education, Health and Care Plans, including:

• The First Tier Tribunal is not required, before determining what recommendations to make, to ensure that the local authority has completed all of its statutory obligations. Health and social services assessments are not necessary preconditions to the exercise of the First Tier Tribunal’s jurisdiction to make recommendations. Rather, they are merely one means by which relevant evidence for the First Tier Tribunal to consider may be obtained;
• Unlike in relation to special educational needs, there is no statutory requirement for an assessment before health and social care provision can be included in an EHC Plan;
•  The underlying statutory framework may inform the approach that the First Tier Tribunal takes where there has been a breakdown in the relationship between a parent and social care services. In particular, under the statutory framework, a lack of co-operation by a parent should not in and of itself be treated by the local authority as an obstacle to completing an assessment for the child or young person. This is likely to be a relevant factor for the First Tier Tribunal to take into account;
• A recommendation for social care provision made by the First Tier Tribunal will carry more weight if it is made on the basis of evidence and by reference to the relevant eligibility criteria. For this reason, as a matter of good practice, where social care recommendations are sought the First Tier Tribunal should require the local authority to provide it with the relevant local criteria. The same goes for healthcare, although different considerations may apply because the First Tier Tribunal may need to make ‘third party’ orders against the responsible commissioning body for evidence and submissions (if necessary);
• Although there are a number of respects in which the First Tier Tribunal’s jurisdiction over health and social care is essentially the same as its jurisdiction over education, there are also important differences. In particular, the key differences are that recommendations are not directly enforceable, and the First Tier Tribunal has no ‘freestanding’ jurisdiction over health and social care. These differences mean that:
  1. What is required for the First Tier Tribunal lawfully to ‘specify’ health/social care needs and provisions is not as rigid as it is for special educational needs and provision;
  2. If the evidence the First Tier Tribunal has is ‘thin’, it may adjourn for further evidence, or refuse to make a recommendation, but delay is likely to be inappropriate where a child’s education is at stake, while to decline to make a recommendation, even where the First Tier Tribunal may have useful recommendations to offer, risks frustrating the statutory purpose;
  3. There is in principle nothing wrong with making recommendations on a time-limited basis if the evidence available only relates to a limited period.

Local Authorities must notify parents and young people of the Tribunal’s power to make nonbinding recommendations on the health and social care needs or provision specified in EHC plans when they:

• Notify a parent/young person of a decision not to issue an EHC plan;
• Send a final version of an EHC plan to a parent/young person;
• Send an amended version of an EHC plan to a parent/young person
• Notify a parent/young person of a decision not to carry out a reassessment where an EHC plan already exists;
• Notify a parent/young person of a decision not to amend an EHC plan following a review or re-assessment notify a parent/young person of a decision to cease to maintain an EHC plan.

Local Authorities must include information on the extended right to appeal in their Local Offers.

If requested by the Tribunal, Local Authorities must provide evidence from the health and social care bodies in response to the issues raised, within the timeframe specified, and as necessary can seek permission to bring additional witnesses to the hearing.

The Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2023 provide for the availability of non-means tested legal aid for Tribunal appeals made by foster carers or prospective adopters on behalf of Looked After children or young people who continue to reside with a former foster carer under a staying put arrangement where that young person lacks capacity and cannot bring the appeal themselves.