Expert group recommends reducing SEND Tribunal appeals by getting decisions right first time

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How to bring down the ever-rising number of appeals to the SEND Tribunal is a vexing question occupying many minds at the top of government. It was central to the SEND Review and last year’s SEND green paper, which said in chapter two: “Appeals to the tribunal should only need to be made in cases where parents feel that their child’s needs or proposed provision arrangements are not in line with the new national SEND standards, and mediation has not resolved the dispute.”

A working group set up last year by the Administrative Justice Council took a more promising starting point. Instead of looking at how parents can be dissuaded or prevented from appealing, it reviewed why local authorities so persistently make unlawful decisions, to the extent that 96% of these are overturned by the Tribunal. As a reminder: there were 11,052 appeals registered by the SEND Tribunal in 2022, and the number of Tribunal appeals increased by more than 210% between 2011 and 2022.

What’s the AJC?

The Administrative Justice Council brings together experts to identify where and how the justice system should work better for people who rely on it. The remit of its SEND working group was to examine “non-policy” solutions, to come up with “practical proposals to improve local authority decision-making right now”.

The group consisted of experts in SEND and administrative justice, and included representatives from government departments, local authorities and voluntary organisations, as well as mediation providers, judicial office holders, ombudsman staff and academics.

The working group’s report, SEND: Improving local authority decision-making, was published in late July. They did their best to give local authorities the benefit of the doubt, saying: “An increase in the number of appeals being registered does not necessarily indicate that LA decision-making is getting worse. Increases in appeals could be due to positive factors such as greater awareness among parents and young people of their rights and how they can go about securing them. It may also be because new evidence can, and often does, come to light after the initial decision is made but before (or during) tribunal appeal proceedings.”

But we know, and the working group knows, that local authorities’ cavalier approach to the law is responsible for a significant part of the problem. The report says:

“Parents and young people should not have to resort to the Tribunal to secure the educational provision to which children and young people are entitled. That they increasingly need to do so and that, when they do, their chances of success are extremely high, raises legitimate concerns about current approaches to decision-making in LAs.”

SEND: Improving local authority decision-making AJC

Why don’t local authorities learn from experience?

The AJC report expresses itself in tones of polite astonishment: “The data show clearly that LAs’ chances of success at the Tribunal – never high – are now remote. One might expect that, if LAs were learning from their experiences, we would not see the increasing appellant success rates.”

One might indeed expect that. One might also think that the most straightforward “practical proposal” for improving decision-making would be for local authorities to follow the very clear legal framework that exists, all set out in the Children and Families Act 2014, the SEND Regulations 2014 and the SEND Code of Practice.

I sometimes wonder if national policy-makers think there is a magic solution that involves something other than local authority SEND case officers understanding what the law says and applying it, rather than constantly trying to get around it.

The AJC report states that local authorities:

  • Aren’t trying hard enough to reduce the number of cases going to appeal,
  • Aren’t reconsidering and conceding cases appropriately once appeals are registered, and
  • Aren’t routinely amending their approaches to first-instance decision-making in order to bring them into line with the approach of the Tribunal.

It’s well-known that there are some local authorities with particularly high rates of appeals – Birmingham, East Sussex, Kent, Surrey, we’re looking at you. The report notes, with some understatement, that “these LAs [have] access to large banks of unpublished, reasoned decisions and…a lot more could be done internally to learn some lessons from these”.

In other words, the same local authorities appear time and time again in front of the Tribunal, making the same poor decisions on repeat, with no apparent incentive or sanction to make them change their practice.

Tribunal decisions need more public transparency

One of the most unhelpful aspects of the system for redress is that SEND Tribunal decisions on individual cases, unlike most courts and tribunals, aren’t routinely published. This is for reasons of both privacy (for families appealing) and costs (for the Tribunal). But these shouldn’t be insurmountable obstacles. There absolutely is more that could be done to share what’s been learned from Tribunal cases. There has to be, because right now there appears to be a vanishingly small amount of learning from experience taking place in local authorities.

As well as data from the SEND Tribunal, the AJC working group looked at data from the Local Government and Social Care Ombudsman (LGSCO) and SEND mediators. They found “little evidence that LAs take account of the Ombudsman’s reports and use them in practice”, with “recurring issues across the SEND sector and also a number of LAs that have complaints upheld on the same reoccurring issues over time”. Neither do they appear to learn lessons from individual mediations. The result is that they are failing children and young people with SEND over and over again.

“Misunderstanding” the law

The AJC working group took a particularly close look at decision-making around “refusal to assess” decisions, which account for just under a third of Tribunal appeals. Although it’s not the most common type of appeal, it’s an area where immediate improvements could be made in local authority decision-making, if only there was the will to do so.

A key issue is the divergence between the test set out in legislation (section 36(8) of the Children and Families Act 2014) for deciding whether to carry out an EHC needs assessment, and the approach set out in statutory guidance. The Tribunal applies the legal test, while some local authorities appear to rely on the guidance contained in the SEND Code of Practice 2015. This supplements the legal test with a number of additional criteria that only have to be considered, not met. These include things like evidence of a child or young person’s attainment and rate of progress, evidence of action already being taken by an education provider, and so on.

Decisions on Placement and provision

The working group considered placement decisions and ways in which decision-making around provision could be improved. They also looked at the reasons why Section F in children and young people’s EHC plans so often fails to be compliant with the law. On the latter, they recommend things like checklists and flow-charts to guide decision-makers through the law.

LAs are advised to “do more to analyse their experiences from appearing at the Tribunal and pay close attention to the decisions made against them”. But will they do this? Or will they continue trying to provide as little as they can get away with until the Tribunal tells them otherwise?

What does the AJC recommend?

The report’s recommendations are, not surprisingly, mainly for local authorities so we hope they take the time to read the report. Among other things, LA case officers are advised to spend more time on the evidence-gathering stage and in communicating with parents and schools before decision-making. They should also be much better at collaborating and communicating with parents, young people and schools/colleges.

There are also recommendations for action by the Department for Education (DfE), Ministry of Justice, Ofsted, the SEND Tribunal and the Local Government and Social Care Ombudsman.

Recommendations for DfE include:

  • Commission research into barriers to local authorities improving the outcomes they achieve in Tribunal proceedings.
  • Make changes to the SEND Code of Practice to ensure consistency with the legal tests specified in the Children and Families Act 2014.
  • Issue guidance to local authorities on developing action plans in response to Tribunal decisions that go against them.

The SEND Tribunal should:

  • Work with the Court and Tribunal Service and the Ministry of Justice to improve the sharing of learning from the Tribunal’s casework.
  • Consider issuing a standard direction to local authorities to review whether the correct legal test has been applied when a “refusal to assess” appeal is registered.

The AJC report says that Ofsted and the Care Quality Commission “should routinely analyse Tribunal data and consider how data are being used by LAs to drive improvements in decision making,” as part of the local area SEND inspection programme. I find it surprising and frustrating that this is not already the case.

Finally, training. The report’s closing recommendation is that DfE:

“…should lead the development and delivery of a fully-funded ongoing programme of training in SEND law, conflict resolution and communication skills for all relevant LA staff. This should be developed in the context of a nationally agreed framework of competencies and occupational standards for LA decision-makers. The DfE should consider, in reviewing the engagement and impact of such, whether the training becomes compulsory for LAs in the medium to longer term.”

Will it make any difference?

The problem has been clearly diagnosed: the system isn’t working for children and young people with SEND and their families. A number of solutions have been proposed, some of which have the potential to make a difference, if only by shining a brighter light on what’s happening in particular areas – for example, sharing more information about individual Tribunal cases.

As always with reports like this, we can nod in agreement with some of the points made – while also wondering if anything will really ever change. The bottom line is that the law is clear on what local authorities should be doing to support children and young people with SEND. But too often they are simply not doing it, with no real consequences for anyone other than children and young people themselves.

This may be resolvable through more and better training for LA decision-makers, or more resources. There is an observation in the conclusion that “LAs may feel, with some degree of justification, that there are limits to how far decision-making can change when budgets and the availability of educational resources are finite, and funding from central government is not directly linked to LA statutory obligations”.

But the will to improve has to be there, and many parents observe that it is not, that their local authority seems to be playing a waiting game until the last possible moment before they fulfil their legal obligations to children and young people with SEND, if indeed they ever do. The nettle of making the system properly accountable to the children, young people and families it exists to serve still remains to be grasped.

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Catriona Moore
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