Councils wasted £253 million fighting parents at the SEND Tribunal since 2014 reforms

Somehow, it’s already early December. That means it’s time for Her Majesty’s Courts and Tribunals Service to release their set of annual figures about the work of the Special Educational Needs and Disability First Tier 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 2020-21 academic year (1st September 2020 to 31st August 2021). 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 aggregated outcomes for those appeals that went to hearing. 

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 2020) here. Bear in mind that those figures won’t tell you anything about appeal outcomes, you’ll need to put in a Freedom of Information request for those. 

Take care with the local authority figures. Although the number of appeals registered is reliable, the appeal rate figure is an estimate that assumes the SEND system works as it should – so it should be taken with a lorry-load of salt.

"Most families who are appealing are already in the EHCP system. Over 60% of appeals registered in 2020-21 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."

What do the 2021 figures show?

Check our infographic for the headline figures. For yet another year, they show a Tribunal that has never been busier, and outcomes that have never been worse for local authorities.

  • Families registered 8.579 appeals with the SENDIST First Tier Tribunal in 2020-21 – 8% up on the previous year. Although this is once again the largest number of appeals ever recorded in a single year, the growth rate has slowed. This is most likely due to the impact of COVID-19 on both the pace of local authority decision-making and on parents’ ability to appeal.
  • In 2020-21, roughly one in eight SENDIST appeals 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’ ran until 31st August 2021, and has now been formally incorporated into the SENDIST system as ‘extended appeals’.
  • SENDIST saw 7,554 appeals through to completion in 2020-21 – 12% up on last year, also the largest number ever recorded. 
  • 4,825 of these 7,554 appeals had to be “decided” by SENDIST in 2020-21 – 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 nearly two-thirds of them – leaving kids and their families in limbo for longer, with everyone in the process picking up greater costs along the way.
  • Most families who are appealing are already in the EHCP system. Over 60% of appeals registered in 2020-21 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 £60m of their resources towards defending SENDIST appeals in 2020-21
  • In all, since the SEND reforms became law in 2014, we estimate that LAs have thrown over £250m of resource at SENDIST appeal defence – with a further £80m-£90m of costs to the public purse borne by the judicial system over the same period.
  • What return does the public get for this? Close to none. SENDIST panels upheld local authority decisions in 168 of 4,825 hearings in 2020-21 – an LA success rate of 3.6%, the worst on record
  • Across the seven full academic years since the SEND reforms became law, SENDIST panel hearings have upheld just 7% of local authority decisions.

Remember: Families don't "win" at the SEND Tribunal, they uphold the law

We say this every year, and 2021 won’t be an exception. If you think of this as families ‘winning’, then you need to re-think things. What families are ‘winning’ here is the same right to an appropriate education that families of children without SEND naturally take for granted. There are no prizes, no golden tickets, no stairways to heaven here. Nobody – least of all families – loves this process. 

The SENDIST Tribunal isn’t there to help parents ‘win’ anything. It’s not there to arbitrate between competing claims, like some sort of reassuringly expensive marriage guidance counsellor. It’s not there to manage customer complaints. 

It’s an arena – one of the very few in this broken system – where individual local government decisions about SEND are examined against statutory duty.

And right now, in 26 out of every 27 cases that make their way to a SENDIST hearing, those decisions are found to be flawed. 

There is no other part of the public sector where decision-making is revealed to be this flawed, this often, on an industrial scale, with no accountability, year after year after year. 

And there is absolutely no sign yet that the SEND Review team or its steering group has absorbed this basic fact. 

You can conduct whatever overhaul of the SEND system you want – ‘huge’ or tiny, root-and-branch or tinkering. But unless you are prepared to compel the public sector to make better and lawful decisions in your new SEND system, you are simply wasting your time – as well as ours.

SEND Tribunal Infographic 2021

Copyright: Special Needs Jungle 2021. Online sharing welcomed, for other usage, please get in touch.

Download an accessible PDF version here

Read an additional Twitter thread on this from Matt

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Matt Keer

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