Is there a crisis looming at the SEND Tribunal?

New figures out from the Ministry of Justice have shown a big jump in the number of appeals registered at the SEND Tribunal. It's not totally unexpected; earlier this year, writing in Schools Week, SNJ's Tania predicted that more and more parents would be forced to appeal to the SEND First Tier Tribunal:

"When parents are routinely misinformed, while schools and LAs still deny the existence of a child’s SEND, despite evidence to the contrary, while academies remain reluctant to take on children with SEND and while far too many new EHCPs do not sufficiently quantify or specify support as is required by law, then the tribunal is where more families will end up."

We've analysed the latest figures released by the Ministry of Justice and they show Tania was correct: between April and June this year the number of local authority decisions appealed by parents increased by 29% compared to the same period in 2015, the fastest ever rise.

The annual number of appeals is still lower than the peak of over 4,000 three years ago. However, the Tribunal service appears to be coming under increasing pressure.

Because new EHCPs were taking so long to process, there was a small drop in the numbers of appeals last year. That's now well and truly been caught up and overtaken, as disillusioned parents have their worst fears confirmed. Far from a new era of coproduction, confusion reigns with poorly-trained staff, legally-questionable EHCP formats and a promised culture change that just hasn't caught on.

Add into the mix the fact that EHCPs go from birth to 25 and you're increasing the number of possible applications and hence potential appeals.

Tribunal data

A new trend?

The question is, is this 29% rise just the usual amount for the period PLUS the disputed EHCPs that were delayed from the previous year, or is it the beginning of a new upward trend?

When the reforms were brought in, the Department for Education anticipated there would be a drop in the number of appeals reaching tribunal, as parents and LA staff would work happily together in co-production.  Back in the real world, everyone else knew it probably wasn't going to turn out like that.

There are reasons for this:

  1. More EHCPs are being issued as the age range widens from birth to 25.
  2. LAs are rushing to convert statements and the 16+ Learning Difficulty Assessments into plans and many of these are just not going to be good enough so ending up at tribunal.
  3. New educational assessments for EHCPs are not being carried out properly or, quite often, at all. So of course, the wrong conclusions are drawn because there is insufficient professional evidence to make the right ones.
  4. There is no standard template for the EHCP and so, we believe, any number of LAs are using their own templates that are of questionable legality.
  5. Parents and young people are still not being listened to by education, health or social care and they're not listening to each other either. So far from being put at the heart of the process, it's even less likely that new plans will reflect family needs.
  6. There is already a crisis in LA resources with staff cuts and the outsourcing of plan writing to people who have never met the family.

Transforming Tribunals

The SEND Tribunal has been dealing with more cases than ever via telephone case-management hearings, which give the conflicting parties a chance to resolve disputes before they get to a face-to-face hearing. Another positive change has been that since August, appeals are registered and processed under a new, shorter timescale of 12 weeks, when it had previously been 22 weeks.

The SEND tribunal is also trialling a system where disagreements about the health and social care elements of a plan can also be dealt with in the same process. We hope to be able to bring you more information about this when the results of the trial are out as this does seem a sensible way forward for parents.

Meanwhile, a government consultation, “Transforming Our Justice System”, was launched this month to streamline the entire courts and tribunal operation, adopting a “digital by default” policy on written and recorded evidence. Although SEND appeals account for less than 1% of all tribunal work, the president of the Education, Health and Social Care Chamber, Judge Phillip Seymour, earlier this year issued a double warning for SEND appeals. In his report to the senior president of tribunals, the Judge noted that:

  • more appeals are proceeding to hearing
  • a change in the law giving SEND appeal rights to young people in custody has yet to impact on the tribunal service.

So far the only action to tackle the problem has been a change in practice, when a local authority refuses to assess a child’s needs. The tribunal will only hold a hearing in these cases where the parent requests it; otherwise a decision will be given on the evidence submitted. Parents are already successful in 86% of all cases and this could increase under the new system.

The Ministry of Justice has signalled there may be further changes ahead: “The cost to the taxpayer of our courts and tribunal system is unsustainably high, so it is right that those who use the system should pay more to relieve this burden.”  So far, drastic fee increases have only been made for immigration and asylum cases and for the time being there is no charge to register an SEND appeal. However, parents face significant personal and, if they employ a solicitor, financial costs in trying to win their case. In reality, they pay twice when the LA hires lawyers at public expense to defend their opaque decisions.

Parliamentary review

Under the Children & Families Act, the Secretary of State, Justine Greening, has to deliver to Parliament a review of how well special needs disagreements are being resolved. The review must be delivered by March 2017 and, since the grotesque Baker S**** Twitter incident, it's likely to focus on the operation of the tribunal and the tactics employed by local authorities. Special Needs Jungle will be gathering your views for this review during the Autumn.

However, taking into account all of the points above, if the DfE does not change its stance on its expected (but apparently incorrect) fall in appeals and doesn't then plan ahead for an increase, then it is compounding the problems families are facing and damaging the prospective outcomes of many disabled children.

It cannot then blame the SEND tribunal for becoming overwhelmed and in crisis, when it's just the last rung of a ladder of policy and political failure.

****=He who shall no longer be named (SNJ policy to deny the oxygen of publicity)

Barney Angliss, @AspieDeLaZouch
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Barney Angliss, @AspieDeLaZouch

SEND Consultant at ADLZ Insight
Barney Angliss runs his own consultancy in Special Educational Needs & Disability (ADLZ Insight Limited), having worked as a mainstream SENCo, Deputy Head of a Pupil Referral Unit and Local Authority SEND manager. Barney has Asperger's Syndrome and tweets as @aspiedelazouch. Barney can be contacted at [email protected]
Barney Angliss, @AspieDeLaZouch
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  • Vague

    I don’t know about looming. I think it is already reaching crisis point. I appealed against Refusal to Assess in June and got a hearing date in December. In early September, following a meeting, Surrey agreed to concede the appeal, as it was clear that my daughter needs an assessment (needs an EHCP, in fact, but I fully expect to have another appeal about that, or at least over contents and placement). Over 3 weeks later, we are still waiting for an order from SEND. Surrey have stated to me that they will not start the assessment until they have an order. SEND have told me that they basically have a massive backlog and are doing things in order of the date of the hearing, so I have no idea at all when the assessment will begin. I am considering writing to Tribunal asking them to order Surrey to begin the assessment pending the paperwork, because it is a ridiculous situation where Surrey have agreed to assess but are not actually doing so!!

    • Planet Autism

      Having had recent dealings with your LA, I can tell you they directly breached SEN law in our case.

      As you have found, LAs (and schools and tribunals) are getting away with what they can, the bare bones and even less if there are technicalities which allow them to get away with it. It’s not about the best interests of the child, it’s all in total breach of the ethos and intention of the SEN Code of Practice.

  • Emma Godson

    Re: trialing of social care and health aspects at tribunal.. Have certain cases been picked or are certain LA’s involved?? If so which ones?

  • Planet Autism

    Oohoohoohoo, I have a lot to say about this. Having just experienced my 3rd tribunal, which stupidly I asked to be done on papers alone after getting the LA barred for late submission (Think you can trust the process? Think again!), I found the lower tribunal did not even adhere to the law. I am now in the process of awaiting an upper tribunal oral hearing just to get permission to appeal, on the basis of wrong in law. It’s all a farce. The EHCP has not adequately quantified/specified our child’s special educational needs and the tribunal brushed off the voice of the child and the parent. Lower tribunal refused permission to appeal (why the heck do you need permission to appeal, surely the argument is saved for the appeal proper!). As an adult with Asperger’s myself, I am being put at an incredible disadvantage in having to have an oral hearing to explain my reasoning, when I already submitted detailed, clear laws breached by the lower tribunal with links and quotations!