Columnists, SEND Accountability, special needs

Relentlessly unlawful LA decisions are damaging children and forcing the SEND Tribunal into crisis

Relentlessly unlawful LA decisions are damaging children and forcing the SEND Tribunal into crisis

Last Friday, whilst people were still getting their heads around the General Election, SNJ’s relentless data hoover sucked in a new set of figures – fresh information on the Special Educational Needs & Disability First Tier Tribunal (SENDIST).

If you’re not familiar with SENDIST, 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). The latest data give us facts and figures updated to the end of the 2018-19 academic year (31stAugust 2019). 

These figures don’t include a breakdown for appeals against each individual local authority – those numbers are released in the summer.  If you want to know appeal outcomes for an individual LA, you’ll have to submit a Freedom of Information Request – either to the LA, or to the Ministry of Justice. All the same, the figures published last week are the most detailed and up-to-date snapshot of the national SEND Tribunal landscape, and they’re worth looking at closely. 

What are the headline numbers?

Check our infographic further down for the headline figures – they show a Tribunal system that has never been busier, and that has never been more stretched.

  • Families registered 7,002 appeals with the SENDIST First Tier Tribunal in 2018-19 – 23% up on last year, the largest number ever recorded. 
  • The number of appeals registered each year has doubled since the SEND reforms became law in 2014.
  • SENDIST saw 5,900 appeals through to completion in 2018-19 – 18% up on last year, also the largest number ever recorded.
  • Roughly 10% of these 5,900 appeals were completed under 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’ was due to finish in March next year, but it’s recently been extended out to August 2020.
  • Of those 5,900 appeals, over 2,600 had to be “decided” by SENDIST – 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 – most got settled beforehand, sometimes on the steps of the Tribunal building. Now, 44% of SENDIST appeals end up going all the way through to a hearing. Combined with the steady increase in appeals coming in, it’s placing the Tribunal system under extreme pressure.
  • We estimate that local authorities collectively allocated around £40m of their scarce resources towards defending SENDIST appeals in 2018-19. In all, since the SENDIST reforms became law in 2014, we estimate that LAs have thrown around £144m of resource at SENDIST appeal defence.
  • Tribunal panels upheld local authority decisions in 198 of 2,614 hearings last year – an LA success rate of 7.5%, the worst on record. Across the five years since the SEND reforms became law, SENDIST panel hearings have upheld just 10% of LA decisions.

Although this means families ‘won’ 92.5% of hearings – that’s the wrong way to look at it. No family who has sunk their time, their savings, their mental health, their relationships, and their child’s future into this process has ‘won’ anything. What they’ve ‘won’ is the same right to an appropriate education that other families rightly take for granted.

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 not. 

And nine times out of ten, when a Tribunal panel examines LA decision-making, the panel decides the LA hasn't complied with the law.

You can find similar examples of repeated, recklessly-flawed decision-making by other public bodies. But you won’t find anything that happens this regularly, with outcomes this repeatedly and atrociously poor, other than in the world of SEND. Even the rightly-vilified disability benefit assessment system has better decision-making, and better tribunal outcomes for the public sector, than SEND does. 

This year, Department for Work & Pensions’ disability benefit decisions were upheld only 30% of the time by tribunals – a situation regarded by many as a stain on the public sector. It’s been seven long years since national local authority SEND decisions could boast a tribunal success rate that high.

Domino effect that stressing the Tribunal system

rise in tribunal stats
Copyright SNJ. Reuse for personal or non-commercial uses only

Worse still, the SENDIST Tribunal system itself is now visibly struggling to cope with the increasing volume of appeals. Over the last two years, SEND appeals have been consistently coming into the Tribunals system at a faster rate than courts can process them. 

At the end of September 2018, the number of live appeals in the system that SENDIST still had to deal with hit 2,000 for the first time. At the end of September 2019, there were over 3,000 live appeals in the SENDIST system – and the volume is likely to continue to rise. 

Because of this, it’s become common for SENDIST hearings to end up being postponed at a late stage, as SEN lawyer Hayley Mason explained on SNJ here – and it’s becoming increasingly common for hearings to be postponed more than once. This can stretch an already highly stressful process out by months, and it’s families who typically take the brunt of the impact. 

Judge Meleri Tudur expressed the situation clearly in evidence submitted in March to the Education Select Committee SEND inquiry: 

“The short answer is that the Tribunal does not have sufficient judges at present to cover all of the hearings required. Even if there was no further increase in the number of appeals registered by the Tribunal and requiring a hearing, this situation will not be fully remedied for at least a year, if not longer.”

Judge Meleri Tudur

The Tribunal is doing what it can to alleviate the problem. As of March 2019, at least 21 new judges were being inducted, and a request has gone in for 30 more at the next generic Judicial Appointments Commission competition in January. But it’s galling to see that this public expenditure is necessary. Better upstream accountability at local and national level would mean fewer unnecessary cases reaching Tribunal in the first place.

So what happens next?

Unless something changes, we’re likely to see the same pattern repeat itself in 2020. The Department for Education’s in-house SEND Review is likely to conclude soon; it’s entirely unclear right now what it will recommend. The new government still has to respond to an eviscerating SEND inquiry report from the previous Parliament’s Education Select Committee. That Committee (which has now disbanded, and will be reformed soon) stated in October that: 

“We are extremely concerned by the numbers of cases going to Tribunal, and the potential number of cases that are unable to go to Tribunal because of bureaucratic delays and mistakes.”

The Committee’s report recommended two main changes to practice:

  • An annual scorecard to measure LA performance in delivering on the SEND reforms, including Tribunal hearings, to be published by the House of Commons Library;
  • A yearly digest of SEND Tribunal cases, produced by the Ministry of Justice, setting out relevant trends to enable LAs to improve, to ensure that they are making lawful decisions, and to assist public accountability and scrutiny of their performance

These are pretty straightforward changes to implement – but neither of them is likely to make much difference to the factors that drive families to appeal to Tribunal, or the factors that drive local authorities to defend decisions that overwhelmingly get reversed via the Tribunal process, or the pressures that the Tribunals service is under.

Above all, there’s a single, straightforward change that needs to be made – one that doesn’t require a review, or a host of strategic delivery partners, or latte-fuelled leadership boards. It simply requires a consistent standard of decision-making that doesn’t disgrace the rest of the public sector.

Michael King, the Local Government & Social Care Ombudsman, put it very plainly and effectively in his evidence to the SEND inquiry:

“We have issued good practice back to local authorities a number of times, which basically says: do the boring stuff right. Get those basic administrative processes right, embed them, train people in them, make sure you are following the law and just get the processes right. Then a lot of the other stuff will follow, and you will save an awful lot of money, because complaints will not be coming to us and they will not be going to the tribunal.”

Michael King, Local Government Ombudsman

We’ll get there faster with better funding and better joint working, no question. But the route out of the SEND crisis starts here. And nowhere else.

SEND appeals 2019
Copyright SNJ. Fine to share. Non-commercial reuse only.

You can download PDFs of these infographics. Here is the main infographic and here is the pdf for the rise in quarterly registrations. Find the latest data Tribunal set spreadsheets on the gov.uk site here

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Matt Keer
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