Councils continue to fight SEND appeals despite losing most cases at tribunal
Councils are continuing to fight SEND tribunals even though they lose in 98 per cent of cases… and the annual cost to the public purse is close to £100 million.
The number of tribunals involving parents of children with special educational needs (SEND) has hit an all-time high of 13,700.
According to the latest government tribunal data, SEND appeals increased by 2,600 (24 per cent) between 2021-22 and 2022-23 – the largest number of appeals recorded in a single year, and four times the number recorded a decade ago.
The proportion of cases that were successful on appeal also stood at a record high of 98 per cent, up from 96 per cent in 2021-22 and 2020-21.
According to the campaign group Special Needs Jungle, panels found in favour of the local authority in just 139 of the 7,968 appeals that went on to a full hearing - a success rate of just 1.7 per cent, the lowest on record.
The group points out that of the 11,711 appeals that went through to completion, more than two thirds were decided by a formal tribunal - the highest proportion ever. The number of appeals decided by tribunal has increased ten-fold in ten years.
Tania Tirraoro, co-director of Special Needs Jungle and mother of two children with SEND, said: “We estimate that local authorities allocated £99.2 million of resources to tribunal appeal defence in 2022-23.
“Department for Education payments data shows that the DfE’s SEND and AP team paid HM Courts and Tribunals Service £7.3 million in the 2022-23 academic year.
"Even by the standards of previous years, these are terrible numbers.
“The financial and human cost to children and young people with SEND and their families is incalculable.”
More than a quarter (28 per cent) of appeals involved parents challenging a refusal by a local authority to conduct an education, health and care assessment - the first step towards getting a plan known as an EHCP.
A further 58 per cent of appeals related to the content of plans themselves.
There was a 71 per cent increase in appeals relating to disability discrimination with 36 per cent of those decided at a hearing upheld.
The number of outstanding cases also hit a new high of 6,700 cases in 2023.
Tania Tirraoro added: “Things aren’t getting any better for children and young people with SEND. The volume of appeals going into the tribunals system continues to rise. At the end of September 2023, the Tribunals Service had 6,690 SEND appeals still to deal with – yet again, a record number of cases in the system.
"There’s no sign whatsoever that senior local leaders are learning anything from tribunal outcomes, or that they even see a need to learn anything from them.”
Children's Commissioner for England Dame Rachel de Souza expressed concern about the delays facing families.
She said: "We need radical reform of the SEND system. We must focus on identifying and supporting children’s additional needs early, rather than expending huge resource on adversarial complaints processes.”
The Government Tribunal Statistics Quarterly report states: "The increase in appeals registered is likely a continued effect of the 2014 SEN reforms which introduced Education Health and Care plans (EHCPs) and extended the provision of support from birth to 25 years of age.
"In March 2023 the Department for Education published a SEND and Alternative Provision Improvement Plan designed to reduce the volume of cases taken to tribunal through increased use of mediation and new guidance for local authority SEND casework teams."
The stats
In 2022-23:
Total appeals registered 13,658
Autism Spectrum Disorder 6,190
Moderate Learning Difficulty 3,691
Behaviour, Emotional and Social Difficulty 1,935
Speech, Language and Communication 703
Specific Learning Difficulty 607