| SPOTLIGHT |
The Local Government Association (LGA) has joined the Association of Directors of Children’s Services (ADCS) in criticising proposals by the Tribunal Procedure Committee to change the rules on the handling of so-called ‘refusal appeals’, warning that they should not be implemented at a time when local SEND systems are under “significant pressure”.
In its response to a consultation on possible amendments to the Tribunal Procedure (First-tier Tribunal) (Health Education and Social Care Chamber) Rules 2008, the LGA noted that any changes to the tribunals and appeals process “should not be undertaken in isolation” as is being proposed, and should instead be undertaken as part of “wider reform” to the SEND system, “to avoid destabilising the system and further unintended consequences”.
The Association warned that removing both parties’ rights for an in-person hearing “removes the opportunity to provide additional evidence to support their case”, while removing this only for the council is “deeply concerning”.
“This is likely to only cause further distrust, making it harder for central government to reform the system into one which is effective and sustainable, where all partners are confident that decisions are being made with children’s best interests at heart”, it added.
The number of children with Education, Health and Care Plans (EHCPs) has increased 140% since they were introduced in 2014.
The LGA observed: “The 2014 SEND reforms have created a culture where EHCPs are now considered to be the only route to receiving funding and therefore support to meet the child’s needs. A lack of clarity in the Children and Families Act 2014 has resulted in an extremely low threshold for deciding whether to undertake an assessment, which has led to unprecedented increase in assessments, leading to an increase in refusal appeals.”
The Tribunal Procedure Committee’s proposals are limited to appeals against a local authority’s refusal to secure an Education, Health and Care (EHC) needs assessment.
Under the current regulations, Rule 23 of the 2008 HESC Rules establishes the circumstances under which decisions can be made by the Tribunal without a hearing.
Specifically, Rule 23(1)(a) requires both the appellant and the respondent to consent to the case being decided without a hearing before that may happen.
The Tribunal Procedure Committee’s first proposal is to remove the application of Rule 23(1)(a) of the 2008 HESC Rules for refusal appeals. This would leave the matter of whether a decision should be made on the papers or at a hearing, in such cases, entirely to judicial discretion.
Its second proposal is to remove the requirement for the respondent in refusal appeals to consent to a decision being made without a hearing. This means that the appellant’s consent for the decision to be made on the papers, alongside the Tribunal’s agreement, would determine whether an appeal could proceed without a hearing.
Describing both proposals as “undesirable” and “inappropriate”, the LGA concluded: “If hearings were to only be held on papers, it would make a difficult appeals system even more challenging to navigate and would make the first stage of decision making effectively unnecessary if almost all cases were to proceed to assessment.
“A more effective way to tackle the backlog in the short to medium term while long term reform gets underway would be to remove requests to assess from the appealable decisions list.”
Last month, the Association of Directors of Children’s Services (ADCS) also criticised the proposals, noting that removing both parties’ rights for an in-person hearing “removes the opportunity to provide additional evidence to support their case”, while removing this only for the local authority sends a “provocative message” to an “already adversarial, broken system” about the rights and intentions of the local authority.
Lottie Winson
