SEND Tribunal 2022: With a 3.7% LA success rate, what will it take for the Government to finally understand the law matters?

It’s freezing this week in the Keer stats dungeon – but mercifully, an annual set of statistics about the Special Educational Needs & Disability (SENDIST) First Tier Tribunal have arrived to keep me warm.

If you’ve not come across SENDIST before, check here – it’s a tribunal where individual families can appeal against local authority decisions about the Education, Health and Care Plan (EHCP) process. Families can also go to SENDIST to appeal against particular types of disability discrimination too.

The statistics released yesterday show what’s happened at the SENDIST First Tier Tribunal, at a national level, updated to the end of the 2021-22 academic year (1st September 2021 to 31st August 2022). Yesterday’s figures don’t include a breakdown for appeals against each individual local authority – those numbers are released in the summer.

You can find the data here – or check our infographic for the headlines. For the umpteenth year, they show that SENDIST has never been busier, with outcomes still exceptionally poor for local authorities, at enormous human and financial cost to families of children with SEND.

Hold your nose and let’s dive in—with a word of caution

But before we take the plunge, a couple of things we always say when looking at these figures:

  1. If you think a SENDIST appeal is something that families ‘win’, then you need to re-think. 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 magic prizes, no golden tickets, no stairways to heaven here.
  2. The SEND Tribunal isn’t a marriage guidance counsellor – it looks at official decisions, and amends them if law and evidence show that those decisions were faulty. You can look at the figures below as evidence of parental satisfaction or dissatisfaction if you want, but you’re missing part of the point if you do. This data shows the quality of official decision-making – or lack of it – like little else does in the world of SEND.

So what do these year’s figures tell us?

  • Families registered 11,052 appeals with the SENDIST First Tier Tribunal in 2021-22 – 29% up on the previous year. That’s the largest number of appeals ever recorded in a single year, and the fastest growth rate on record.
  • Around one in eight of these appeals was registered as an ‘extended appeal’ – where SENDIST can make non-binding recommendations about health and social care, as well as its standard binding orders regarding education.
  • SENDIST saw 9,076 appeals through to completion in 2021-22 – 20% up on last year, also the largest number ever recorded.
  • 5,600 of these 9,076 appeals had to be “decided” by SENDIST in 2021-22 – 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 children and their families in limbo or crisis for longer, with everyone in the process picking up greater costs along the way. The only beneficiary of delay is the LA’s balance sheet.
  • Most families who are appealing are already in the EHCP system. Over 60% of appeals registered in 2021-22 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 £73m of their resources towards defending SENDIST appeals in 2021-22. In all, since the SEND reforms became law in 2014, we estimate that LAs have directed over £325m of resource at SENDIST appeal defence – with a further £100m 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 just 207 of 5,600 hearings in 2021-22 – an LA success rate of 3.7%, almost identical to last year’s figure.

Some of the data also shows that capacity across the SEND system is desperately strained:

  • The number of appeals that involve a dispute about placement (school, college, or other arrangements) has more than quadrupled since the SEND reforms began.
  • This year, the number of appeals more than doubled where the LA named no school at all in the EHCP. At the start of the SEND reforms, there were only a handful of these appeals each year. In 2021-22, there were more than 500 of them.

SEND system leaders are very, very keen to see fewer EHCPs. Many of the financial accountability sticks they wield require LAs to cease more EHCPs. They’ll be gratified to see that the number of SENDIST appeals against LAs removing EHCPs remained very low this year.

Does the type of appeal make a difference? We did some research

These figures show that local authority decision-making in SEND is desperately, damagingly, and consistently poor. But do outcomes vary by the types of appeal that SENDIST handles? They do, but not by much.

SENDIST don’t publish these figures, so we asked for them via Freedom of Information. We don’t have data for the 2021-22 academic year yet, but we do have it for previous years. For 2020-21:

  • Refusal to conduct an EHC needs assessment: Most of these SENDIST appeals get resolved prior to hearing – but for those that went all the way, local authorities had their decisions upheld just 7.8% of the time.
  • Refusal to issue an EHC Plan after assessment: LAs tend to do slightly better for this type of appeal at hearing, with an 11.2% success rate. If you’re keeping score – and we most definitely are – then LA decision-making was amended in eight appeals out of nine that went to hearing.
  • EHCP contents: the data here suggests that only 1.6% of LA decisions about the contents of an EHCP were fully upheld at a hearing. Handle that figure with care though, because that doesn’t automatically mean that families secured all changes that they wanted to the EHCP.
  • Placement: We can be more precise about hearing outcomes where Section I of an EHCP was in dispute – the part of an EHCP that specifies where the child or young person will be educated. The data here indicates that in 2020-21, only around 1.8% of local authority decisions about school or college placement were upheld by SENDIST. Put another way – when examined in a formal hearing by an independent and expert authority, only 1 in every 55 local authority decisions about EHCP school and college placement stood up to scrutiny.
  • Extended appeals: Outcomes were even worse for SENDIST appeal hearings that also covered health or social care. Only around 1.5% of local authority decisions were upheld at hearing in this type of appeal. We asked SENDIST a while back whether this applied to decisions relating to health and social care, as well as to education. They confirmed it did.

Exceptionally poor, even by the standards of other kinds of tribunals

So far, so dismal. How does the local authority SEND track record stack up against other tribunals where public sector decisions are challenged? Not well. Not well at all.

Some of the decisions that the Home Office makes about immigration and asylum cases can be challenged via tribunal. Over the September 2021 – August 2022 period, the Home Office’s decisions were upheld in roughly 50% of cases that ended in a tribunal hearing.

Likewise, if you’ve come off worst from a benefits decision made by the Department for Work and Pensions, you can appeal to a tribunal. The DWP’s decision-making gets upheld at tribunal around 48% of the time for Universal Credit, 36% for Disability Living Allowance, and 30% of the time for Personal Independence Payment.

The same figure at SENDIST? 3.7%.

Those are grim figures. No-one in the public policy realm points to either the Home Office or the DWP as bastions of ethical, high-quality decision-making. And yet, compared to local authority SEND, they’re streets ahead. SEND is absolutely in a league of awfulness all of its own.

If I was running the Local Government Association, and if my members’ decision-making was consistently 12 times worse than the Home Office and nine times worse than the DWP when it was tested at tribunal – year, after year, after year – I’d probably melt away from professional and personal shame. I might even try to do something about it. I wouldn’t blow £20,000 on a piss-poor report that smeared families who suffer directly from that decision-making, in an inept last-ditch effort to influence the SEND Green Paper. But I’m not running the LGA.

SENDIST is buckling under the strain

The growing volume of SENDIST appeals is now seriously straining the Tribunals service.

At the end of March this year, there were 3,324 live first-tier appeals in the SENDIST system. By the end of September – just six months later – that figure had increased to 5,554.

Click to enlarge. See PDF for accessible inforgraphic

The Tribunals Service employs some of the hardest-working people I’ve ever come across – but they are struggling to cope with the volume of appeals.

A decade ago, the timespan between lodging a SENDIST appeal and a final hearing was usually a few months. Even a few years ago, it was typically no more than six months.

Nowadays, that gap is often a lot, lot longer. Lawyers and advocates are reporting that recent SENDIST appeals have been given an indicative hearing date a year or more ahead, simply because of the volume of appeals in the system.

That doesn’t automatically mean a year’s wait. Your chances of getting a timelier appeal are probably greater if your child is approaching secondary school or post-16 transfer. But the full-spectrum sclerosis of the SEND system is affecting everything around it, and the Tribunal system is no exception.

Click to enlarge

What answers does the Green Paper offer?

You can find a detailed analysis of the relevant Green Paper proposals here, from SNJ columnist Catriona Moore and all our posts on the SEND Review here.

The key proposals that could affect the current appeals process include mandatory mediation, the introduction of a “tailored list” of placements to be drawn up by an unidentified body (most likely the LA), and a set of “national standards” that are supposed to clarify and streamline the overall SEND system.

Central government clearly want to see a reduction in the number of SENDIST appeals. If you’re feeling charitable, you might say that they plan to do this mostly by improving things upstream: if the SEND system works better, then parents will be more confident, and they will feel less like dashing off SENDIST appeals in their ample spare time.

If you’re a bit more cynical, you might conclude that Whitehall wants to reduce appeals by making the SENDIST appeal route slower and harder for parents to use. You might conclude that the “tailored list” and hazily-defined “national standards” will eventually be used to choke off the meaningful remedies that appeals to SENDIST consistently achieve. You might conclude that some SEND system leaders, high on their own supply, truly believe SEND Tribunal is biased against councils, and doesn’t simply reflect their own appalling decision-making right back at them.

These are still proposals. Nothing’s been officially decided yet, and we won’t know what government plans to take forward until they issue an “implementation plan” next year. However, with the demise of the Schools Bill, any legislative changes will have to find a different route.

But unless and until they get to grips with the lawfulness and quality of local authority decision-making, then they’ll simply be wasting their time. And more importantly, wasting the time and life chances of our children and young people.

Download the infographic as PDF

Also read:

Don’t miss a thing!

Don’t miss any posts from SNJ - simply add your email address below. You must click the link in the confirmation email you’ll receive to activate your free subscription.

You can also keep up with us by following our WhatsApp Channel!

Want more? Be an SNJ Patron!

SNJ is a non-profit company and everyone who writes here does so voluntarily. We need your support to help us with costs by donating once or as a regular patron. Regular donors get an exclusive SEND update newsletter as thanks! Find out more here

Matt Keer

We LOVE to hear what you think... please take a minute to add your views here, so your comment is seen by all!

This site uses Akismet to reduce spam. Learn how your comment data is processed.