95% of decisions in favour of parents, but nobody wins at the SEND Tribunal

95% of decisions in favour of parents, but nobody wins at the SEND Tribunal

2020 is a year that most of us will be glad to see the back of. But before we kiss it good riddance, here’s a quick look at some figures published yesterday about the Special Educational Needs and Disability Tribunal (SENDIST).

If you’ve not come across SENDIST before, check here – it’s a tribunal where individual families can appeal against a range of local authority SEND decisions concerning Education, Health and Care Plans (EHCPs). Families can also go to SENDIST to appeal against particular types of disability discrimination too.

You can find the new SENDIST data here. The facts and figures released yesterday give us a picture updated to the end of the 2019-20 academic year (31st August 2020). The data includes the numbers of appeals registered, the numbers of appeals dealt with, how many got settled before going through to a full hearing, and (at a top level) how appeals went once they got decided. 

These figures don’t include a breakdown for appeals against each individual local authority – those numbers are released in the summer. You can find the most recent breakdown by LA (for the calendar year 2019) here. Take care with the local authority figures – while the number of appeals registered is reliable, the appeal rate figure is an estimate that should be taken with a lorryload of salt. If you want to know what appeal outcomes were like for an individual local authority, you’ll have to submit a Freedom of Information request – either to the LA, or to the Ministry of Justice.

What are the figures for 2019-2020?

Check our infographic below for the headline figures – they show a Tribunal that has never been busier, a system that has never been more stretched, and outcomes that have never been worse for local authorities.

  • Families registered 7,917 appeals with the SENDIST First Tier Tribunal in 2019-20 – 13% up on last year, the largest number ever recorded, despite the severe impact of COVID-19.
  • About one appeal in every seven in 2019-2020 was registered as part of the ‘National Trial’ – a pilot where SENDIST can make non-binding recommendations about health and social care, as well as its standard binding orders regarding education. The ‘national trial’ has been extended again – it was due to finish in August, but the government has decided to extend it out to August 2021.
  • SENDIST saw 6,720 appeals through to completion in 2019-20 – 14% up on last year, also the largest number ever recorded. Even before COVID, the Tribunal system itself was under very severe pressure – but a largely-successful move to online remote hearings during lockdown has helped it deal with the unprecedented volume of business.
  • 3,770 of these 6,720 appeals had to be “decided” by SENDIST in 2019-2020 – meaning that they had to go all the way to a panel hearing, rather than being settled beforehand. Before the 2014 SEND reforms, only 20% of SENDIST appeals had to go all the way to a hearing. Now, it’s well over half of them.
  • Most families who are appealing are already in the EHCP system. Around 60% of appeals registered in 2019-2020 were about the contents of an EHCP. This type of appeal is much more likely to end up going all the way to a hearing, particularly if it includes an appeal about a placement. 
  • We estimate that local authorities collectively allocated around £55m of their scarce resources towards defending SENDIST appeals in 2019-20. In all, since the SENDIST reforms became law in 2014, we estimate that LAs have thrown around £200m of resource at SENDIST appeal defence.
  • Tribunal panels upheld local authority decisions in 193 of 3,770 hearings last year – an LA success rate of 5%, the worst on record
  • Across the six full years since the SEND reforms became law, SENDIST panel hearings have upheld just 9% of local authority decisions.

No winners at the SEND Tribunal

These latter figures are normally presented the other way round – with families ‘winning’ 95% of decisions at hearing. We think that’s the wrong way to look at it. What families have ‘won’ is the same right to an appropriate education that other families rightly take for granted.

We say this every year, and we’ll say it again this year. The SENDIST Tribunal isn’t there to help parents ‘win’ anything. It’s not there to arbitrate between competing claims, like some sort of high-end marriage guidance counsellor. What the Tribunal does is examine specific decisions that a local authority has made in an individual case, decide whether the LA has complied with its statutory duties, and order changes if they haven’t complied with those duties. 

And 19 times out of 20, when a Tribunal panel examines LA decision-making, the panel decides that they haven’t complied with those duties.

Compared against SEND, there is no other area of the public sector where decision-making is so regularly and routinely exposed as flawed – not just through the SENDIST Tribunal, but also via the Local Government and Social Care Ombudsman (LGSCO), which now upholds over 90% of the complaints it receives about EHCPs.

So what does central and local government think about this?

In March, just before lockdown, Jonathan Slater, the then Permanent Secretary of the Department for Education gave evidence to the Public Accounts Committee’s SEND inquiry. When asked about the volume of Tribunal appeals, he said the following:

“This is not a new problem; it is not a 2014 problem. The proportion of appealable cases going to the tribunal is exactly the same, to the nearest tenth of a percentage point, as it was before the 2014 reforms. It is in the nature of a system of this sort that there is going to be a dispute between parties from time to time, and the proportion remains at about 1.5%.”

Jonathan Slater, Department for Education

The figures that the Permanent Secretary used here are deeply unsafe. They assume that the SEND system works as it’s supposed to, with every opportunity to appeal in theory, also existing in reality. We know that they don’t, because the EHCP annual review system, which makes up over 80% of these theoretical chances to appeal, is utterly broken. We told the DfE this, directly, months before this evidence session. Clearly, it didn’t make its way to the Permanent Secretary’s briefing pack. 

Unfortunately, Mr Slater has now been fired, for reasons that have nothing to do with SEND. So we can’t ask him why he thinks, “It is in the nature of a system of this sort that there is going to be a dispute between parties from time to time.”  

It should not be in the nature of “a system of this sort” that local authority decisions are found to be faulty 19 times out of 20. It should not be in the nature of this system that local authority decision-makers collectively commit nine-figure resource costs defending unwinnable appeals, learn nothing from their successive defeats, and experience no meaningful accountability costs. (and it isn't just SEND appeals, some pursue indefensible SEND judicial review claims as well)

It should not be in the nature of this system that thousands of families bring themselves to emotional and financial breaking point each year – sometimes year after year – to secure a basic right to education that their non-disabled peers can take for granted. And it should not be in the nature of this system that its most senior civil servant could just airily, arrogantly dismiss this appalling waste of human and financial capital as something that’s just part of the deal.

It can't be council practices at fault, surely?

What about local government leaders? Well, they’ve learned something as well. What they’ve learned is that if they’re losing this many Tribunal appeals, it can’t be their own practices that need changing. 

Instead, they’ve decided that Tribunal itself needs changing. They’ve decided that the law needs changing. And they’re lobbying central government hard to get both changed.

In a recent letter to Gavin Williamson (the current Secretary of State for the Department for Education), a senior leader of a local authority lobbying group said: 

The strong emphasis placed on parental preference at appeal means local authorities find it very hard to defend a decision to place in state-funded provision when the independent provision looks more appealing. Tribunals often dismiss cost as not being significant.”

The Local Government Association also recently said that tribunals, “do not take into account a council's finite resources to support children with SEND.” 

The technical term for this is horseshit. If you don’t believe me, read this 2019 evidence submission from senior SENDIST judge, Meleri Tudur, that lays out, clearly and precisely, exactly how SENDIST takes a council’s finite resources into account when making their decisions. It has nothing to do with whether an independent provision looks more appealing. It depends on cold, hard evidence of the ability to meet all identified needs.

It may be that council leaders simply don’t read the thousands of Tribunal decision notices they receive each year from SENDIST that explain the Tribunal’s reasoning in each case. Or it may be council leaders just don’t understand these decision notices. It may be they are delusional to the facts. Or it may be they are lying, learning from the Donald Trump School of Government.

Looking at the meat of their lobbying proposal, it’s genuinely hard to tell:

“We are also now faced with many more legal challenges and local authorities are facing judicial review for not following SEND legislation when in fact we are following the guidance contained in the national code of practice.

“Even before cases reach this stage, local authorities are spending significant time and resources on managing solicitors and pre-action letters because of the raised awareness of SEND issues within the legal community.

“We therefore request an urgent review of the underlying regulations and the code of practice to ensure it removes any ambiguity in expectation which would allow local authorities to ensure best value for the public purse while continuing to meet pupils' needs.”

There is no “ambiguity in expectation” here. As a sector, you don’t get to waste £200 million in public funds defending unwinnable appeals, and then expect people to take you seriously when you talk about “best value for the public purse.” 

You don’t get to pretend the “legal community” are wasting public resources, and expect people to take you seriously. Not when desperate families are using their own money to pay for “the legal community’s” services. Not when you have phalanxes of your own equally capable lawyers paid for by the public purse. And not when your decisions get upheld under appeal only 5% of the time.

You also don’t get to claim you are simply “following the guidance contained in the national code of practice,” and expect people to take you seriously. Not when multiple external accountability bodies – not just Tribunal, but the LGSCO, Ofsted, and the Care Quality Commission too – have found most of your services repeatedly wanting, again and again, systemically and individually, over years, for reasons almost entirely unrelated to funding.

Some people don’t believe that pathological demand avoidance exists. Those people haven’t watched local government lobbying about SEND.

The 2020 SEND Tribunal infographic

Click to enlarge. © Special Needs Jungle. Free to share

Download this infographic as a PDF

Also read:

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Matt Keer

One comment

  1. Chris Sterry

    Unfortunately Local Authorities (LAs) are not only not working with the ‘best interests’ of children under ‘SEND’ or ‘SENDIST’, as they also are not in many assessments of Need for both children and adults.
    Are they doing this deliberately, I feel they are, but not because they are mean and wish to do do, although some may, no it is because LAs have been left desperately short of funding, due to 10 years of austerity cuts and the the additional costs of COVID-19.
    In fact, social care has never been sufficiently funded and this is purely down to successive Government in depriving LAs of sufficient funding, not only for social care, but many other essential services.
    Also when Governments put additional responsibilities on LAs, the Government fail to provide the additional funding to allow the LAs to successfully manage these additional responsibilities.
    To a large extent this is also the care with health care (NHS), but no where to the same degree.
    Is it that these Governments do not understand LAs and especially Social Care, well to some extent this can be so, but they also see LAs as a means to save on funding, as they do not fully understand the needs.
    This has been recently be shown in the Governments handling of PPE during this COVID-19 pandemic. for they could not see the need to have a large stock of PPE, but would assume that they just need supplies to cover the usual demand, and felt if that demand increase it would be easy to obtain additional supplies, which COVID-19 has proved is a false premise.
    But like LAs in their dealings with SEND and SENDIST, they never learn and only look to make saving, when, effectively saving are not there to be made, it is pure incompetence.
    So when, it is clear needs are not being covered or they spend money they can ill afford to in defence of indefensible legal cases, this leads LAs to be even more short of funding, rather than cut their losses and pay or provide what they should have done initially.
    This, in turn, creates an impossible situation for the persons in need and their families, who are already in very stressful situations and they should not be subjected to immense further stress from LAs and technically Governments.
    The leaders of LAs in challenging the Tribunal’s to be changed is far from the answer, but LAs see this has the easiest option.
    For the LAs are completely ‘at fault’ and so are the Government, but to challenge the Government for more substantial is much more difficult.
    In addition the need to have Social Care, which is effectively as important as health care and could be more so, is far from recognised by Government and unfortunately a sizeable portion of the UK population. For, if you are not in need of Social care, many will not see its importance, that is, until they require it for themselves or for a loved family member.
    Most people use health care. but not the same proportion use social care, so social care is not recognise as a very essential service, when it really is.
    This Government needs to do, urgently, to reverse the non-actions of itself and many previous Governments and immediately provide all the funding for LAs to provide all that is required within Social Care, which will include SEND and SENDIST.
    For this reason and many more, I created the petition, Solve the crisis in Social Care,
    Please show your support for children and adults in need of social care, by signing the petition and then sharing.

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