The latest SEND Tribunal figures paint a troubling picture

It’s raining cats and dogs outside where I live. More happily for me, it’s also raining statistics – the latest set to drop into my inbox comes from Her Majesty’s Courts and Tribunals Service, (HMCTS) who knock out a set of statistics four times a year.

The set that’s most of interest to SEND watchers turns up every December – this is when HMCTS releases a big batch of figures about the Special Educational Needs & Disability Tribunal (SENDIST). We looked at the December figures as soon as they came out, and you can find what we said about them here. But the HMCTS statistics that have just come out also have some useful stuff in them – read on, or check the infographic if you’re short of time…

So what can we learn from the new set of figures?

In many ways, the latest figures aren’t that rich in detail. They don’t tell you what sort of appeals are being put into the SENDIST system. They don’t tell you anything about the outcomes of the appeals, or what types of SEND provision are in dispute. We’ll have to wait until December for that information. 

This data also covers a slightly different set of time periods than the December drop – the latest figures cover calendar years and financial years, rather than the September-August academic year. But all the same, there’s still some useful stuff worth knowing. It’s the freshest information on the block – going up to the end of March 2019. 

It also provides two useful sets of figures: a breakdown of appeals registered against each local authority, and an indication of the rates of appeal for each LA. These particular numbers need to be looked at with care, but they’re still useful if taken with a pinch of salt.

So what are the main headlines? Check the infographic to find out at a glance, but if you’re in a reading mood, then:

• The number of registered Tribunal appeals continues to rise each year: Families registered 6,374 appeals with the SENDIST First Tier Tribunal in the 2018-19 financial year (April 2018 to end March 2019) – that’s a 26% increase on the previous year, the third successive yearly increase. The latest number is nearly double the same figure for the 2015-16 financial year – just three years ago.
• The number of Tribunal appeals in the pipeline is growing: Although the number of appeals put into the SENDIST system went up by 26% in 2018-19, the number of ‘disposals’ (appeals finalised by concession, withdrawal, or panel decision) isn’t growing anywhere near as fast – up by just 4% in the last year. Put simply, more appeals are going into the SENDIST pipeline than are coming out of the pipe at the other end – and because of this…
• It’s very likely that your SENDIST appeal hearing will get postponed: Not every SENDIST appeal ends up going all the way through to a hearing – roughly half do. But for the second year in a row, roughly three in every four SENDIST hearings has ended up being postponed at least once, because the Tribunal system doesn’t have enough panel members to handle the number of appeals that get to hearing. 
• The Tribunal is trying to address this problem – in evidence submitted to the Education Select Committee’s SEND inquiry, a senior SENDIST judge stated that the First Tier Tribunal have asked for 30 more fee paid judges be added to the SENDIST stable. But even if this request is approved, the judge assessed that the situation is unlikely to change for at least another year. 

How often do families appeal to SENDIST?

The most recent figures offer some insight into the rate at which families submit SENDIST appeals – and on the surface, it’s a lot less than you might think.

Here’s how it works: the number wonks find out the number of appeals that get registered with SENDIST each year. They then mash this up with data from the Department for Education to work out how many times each year an LA makes a decision that comes with a right of appeal to SENDIST – decisions like whether to make an EHC needs assessment, continue an EHCP, amend an EHCP, or cease an EHCP. 

From that, it’s possible to estimate the rate at which families are appealing to SENDIST each year. And the estimated rate is small.  So whilst there were over 6,000 SENDIST appeals put into the system in the 2018 calendar year, the statisticians reckon there were over 370,000 other occasions where families had the right of appeal to SENDIST, but decided not to take it up. 

That means the rate of appeal that they’ve calculated is just 1.6%. Or put another way, they’re saying that fewer than one in every 60 decisions made by LA SEND teams across the country that can be appealed ends up being appealed.

That sounds spectacularly reasonable on the surface. It sounds like a system running fairly well, in fact. And that’s exactly the argument that Department for Education seniors have been making at every available opportunity: any number of Tribunals is too many, but it’s a tiny proportion, right?

Not entirely, Minister. And here’s why:

There’s a big practical problem with the way appealable decisions are counted – EHCP annual reviews make up a huge chunk of these theoretically appealable decisions – at least 80% of them. But in many areas, the EHCP annual review process is breaking down – the increasingly astute Ofsted & CQC inspection process is now repeatedly identifying local areas that simply aren’t completing EHCP annual reviews in anything like an annual fashion. 

So in many cases, these theoretically appealable decisions don’t actually exist. Here’s a practical example:

I have two young people with EHCPs. We’ve had annual review meetings each year – very good ones, in fact, with an LA rep who really knows his business. But we have never received an annual review letter from the LA telling us what they have decided to do – a letter that, crucially, we’d need to get our right of appeal to SENDIST. 

In these statistics, it’ll look like we had a chance to appeal, but we just chose not to take it up. In reality, we had no chance to appeal at all. Most SEND families I know personally are having the same experience.

It’s hard to blame the statisticians for this. They’re simply assuming that the SEND system works as it’s supposed to on paper. It’s not their fault it doesn’t. But it’s one reason why it’s important to be cautious with the appeal rate percentage.

The second problem is a category error. You simply can’t infer a great deal about parental satisfaction with the SEND system or the quality of LA decision-making from these calculated appeal rates. 

You could, if there were no practical barriers standing between parents and an appeal decision. But in reality, the barriers are formidable. The investment in time, energy, emotion (and usually, money) it takes for families to sustain an appeal to SENDIST are beyond most of us.

And because of those barriers, by itself a very low estimated SENDIST appeal rate tells you very little about the quality of LA SEND decision-making. It’s not possible to say from this appeal rate that only 1.6% of LA SEND decisions are flawed. These are just the ones that make it to appeal. 

And when you look at parental success rates at SENDIST (89%), and when you triangulate it with parental success rates in complaints to the Local Government and Social Care Ombudsman (87%), it’s almost certain that we’re looking at the tip of a very big, very sharp, and very dark iceberg.

How do appeals vary locally?

It’s SEND, so they vary a lot. We looked last month at how England’s 152 local authorities handled EHCPs in 2018. The state of play with EHCPs was hugely inconsistent – and with appeals to SENDIST, the chances that parents will appeal varies greatly, depending on where they live.

The number of appeals varies hugely from place to place. Three LAs experienced no new SENDIST appeals at all in 2018, while Kent racked up 369 appeals in the same period, coming top of a dismal heap. 

Look at the numbers, and you’ll see that over half of all SENDIST appeals registered in 2018 were lodged against just 22 of England’s 152 LAs. 

So does this mean the problems with the SEND system are heavily concentrated in just a few dodgy areas? Not really – it mostly tells you that the SEND population isn’t evenly distributed across councils, because councils range in size from really tiny to unmanageably big.

In theory, the appeal rate should tell you something, and there’s a spread there too. The local authorities with the highest appeal rates include some proper charmers: East Sussex, Derbyshire, Greenwich and Sutton, to name a few.

But again, it’s important to remember that appeal rates are not a super-reliable guide to the quality of local authority SEND services - because the methodology is a bit iffy, and also because of all the things that might stand in the way of a family’s decision to appeal. The LAs with the lowest numbers of appeals are often those that are located in the most deprived parts of the country. And that is likely to mean those families have the fewest personal resources or support to feel able to appeal - or even realise they can.

This info all helps – but you need to bring other stuff into the mix too. For example, Derbyshire and East Sussex have a high appeal rate, and that should make people concerned – but it’s the fact that Derbyshire lost almost all their 2018 SENDIST appeals that raises bright red flags. The fact that East Sussex have lost every single LGO complaint since the SEND reforms started is probably more significant.

Anyway, if you want to see how your LA fared relative to others, take a look at this map - or here for the interactive version.

Does any of this matter? Yes, because PPI

If these numbers can’t actually tell us much, then why am I banging on about them? 

One simple reason - the way decision-makers look at these numbers and deploy them matters a lot, because it frames the risk they see in the system. And right now, too many well-paid people aren’t framing the risk properly. They see a small number of SENDIST appeals, and assume they’re anomalous. That’s magical thinking.

Remember payment protection insurance? In the 1990s, people thought PPI was a solid financial product. Everyone knows that’s not the case now – you only have to check your junk email folder for evidence. 

But back in the 1990s, very few people were willing to believe that many PPI products were riddled with loopholes, and were next to useless.  A small number of noisy, irritating agitators – mostly people who’d ended up already being shafted by PPI - started to kick up a fuss. But the PPI complaints process was a bureaucratic nightmare, so very few people saw complaints through – fewer than 2%, as it happened. 

So back then, the PPI problem was easy to ignore—until the sector ended up being properly investigated in the mid-2000s – and at that point, it became clear that most PPI products were deeply flawed. 

It became clear that many, many people had been ripped off by PPI. It soon became clear that the tiny, tiny number of complaints received about PPIs up to then actually told you nothing about the appalling extent of PPI mis-selling that had gone on. It also became clear that the biggest red flag of all was the sky-high percentage of PPI complaints that got upheld.

The percentage of SENDIST appeal hearings that find in the family’s favour is currently 89%. It’s been pretty much at this level for years now. So yes, it matters.

See it visually

Download this infographic as a PDF here

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Matt Keer

Matt (he/him) has two deaf children. He has over 20 years of experience grappling with the SEND system as a parent, and he’s seen the best and the worst that the SEND system offers.
Matt specialises in SEND stats, data analysis, and in-depth investigations of policies. He has given evidence to several Parliamentary Select Committee inquiries, and his articles for SNJ on SEND funding, local government policy, and the SENDIST Tribunal have been quoted in Select Committee inquiry reports and national media.

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