SEND Tribunal 2023: When will councils stop wasting public funds defending SEND appeals when they fail almost all the time?

It’s been a long old year, but it’s not over yet – least of all when there’s a fresh data drop from the First Tier Tribunal for Special Educational Needs and Disability (SENDIST).

SENDIST is a legal tribunal where individual families can appeal against a range of local authority decisions that affect their children and young people with SEND - particularly decisions about the Education, Health and Care Plan (EHCP) process. Families can also appeal to SENDIST to contest particular types of disability discrimination.

The figures released yesterday describe what’s happened at SENDIST over the 2022-23 academic year. The numbers are published at a national level: they aren’t broken down for each local authority.

A note about the SEND Tribunal

  • If you want to get at the SENDIST data directly, you can find it here.
  • If you want a quick summary of the headline numbers, check the infographic at the bottom of this article.
  • If you want to dive deeper, keep reading

However, as always, we’d like to remind you of this: Parent carers do not ‘win’ Tribunal appeals. Ever.

If a SENDIST appeal is allowed, and even if goes the families’ way, what you think they’ve ‘won’ is only the same right to an appropriate education that millions of families of children without SEND take for granted – just with extra delay and pain. There are no golden tickets for families who go through the Tribunal unless you’re sufficiently morally bereft to think disabled children do not deserve an appropriate education as defined in law.

There are certainly parts of the middle class who do extremely well out of the Tribunal process, and you can find some of them here. But those are some of the professionals, not the parents appealing.

The SEND Tribunal isn’t a marriage guidance counsellor and it doesn’t take “sides”; it applies the law. It looks at official decisions and amends them if law and evidence show that those decisions were faulty. There aren’t many places where the quality of official SEND decision-making is laid bare. SENDIST is one of those places. Its data shines a clear light on the quality of official decision-making at an individual level.

And that decision-making is consistently, repeatedly, and fist-chewingly awful, as the figures below demonstrate.

This year’s SENDIST stats

  • Families registered 13,658 appeals with the SEND First Tier Tribunal in the 2022-23 academic year – 24% up on the previous year. That’s the largest number of appeals ever recorded in a single year. It’s also four times the number of appeals that were registered in 2014-15, when the SEND reforms were introduced.
  • In 2022-23, roughly one in ten 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 11,711 appeals through to completion in 2022-23: that number includes appeals that were settled, as well as those that were decided by a formal hearing. That’s 29% up on last year: the largest total ever, the fastest growth rate ever, and a number that’s 3.5 times larger than 2014-15, when the SEND reforms were introduced.
  • More than two-thirds of these 11,711 appeals were decided by a formal Tribunal hearing – the highest number ever and the highest proportion ever, despite efforts by the Tribunal system to introduce an extra stage of dispute resolution into the appeal process.  The number of SENDIST appeals decided by a formal hearing is now 10 times larger than it was when the SEND reforms began in 2014.
  • Most families who appeal are already in the EHCP system: as has been the case for a while now, the most common types of appeal are disputes about the contents of a plan (61%), rather than the process of getting an assessment or securing a plan (37%).
  • It’s fair to say that some of this growth simply reflects the overall rise in EHCP numbers – but only some of it. There are twice as many statutory SEN plans as there were nine years ago – but the number of appeals has quadrupled in the same timeframe.

What do appeal outcomes look like, and how much does this cost the public purse?

In 2022-23, SENDIST panels upheld the local authority’s original decision in 139 of the 7,968 appeals that went to a full hearing. That’s an LA success rate of 1.7% - the lowest on record.

Put another way, when tested at a Tribunal hearing, local authority decisions had to be corrected on 58 out of every 59 occasions in 2022-23.

LAs won only 1.7% of SEND Tribunals in 2023. Free to download and share for non-commercial purposes. © Special Needs Jungle 2023

The cost to the public purse? Over £100 million. In a single year.

  • We estimate that in aggregate, LAs allocated £99.2 million of resources to Tribunal appeal defence in 2022-23.
  • Department for Education payments data shows that the DfE’s SEND and AP team paid HM Courts & Tribunals Service £7.3 million in the 2022-23 academic year, presumably to help keep SENDIST going.
  • Since the SEND reforms started in September 2014, we estimate that LAs have consumed around £425m of resource defending SENDIST tribunals, scoring an average 5% success rate at hearings over that period. The additional wider costs to the public purse (mostly the costs of running the appeals) run into the tens of millions.
  • The financial and human cost to children and young people with SEND and their families is incalculable. But it’s absolutely real, and utterly indefensible.
Cost to LAs of losing Tribunals. Free to download and share for non-commercial purposes. © Special Needs Jungle 2023

I’ve been doing these SENDIST roundups for a while now. Even by the standards of previous years, these are terrible numbers.

How do they stack up against the rest of the public sector, particularly those bits of the public realm that are partial to a bit of demand suppression?

Let’s look at the Home Office’s tribunal record against immigration and asylum appeals. Over the same period (September 2022 to August 2023) the Home Office’s immigration and asylum decisions were upheld in roughly 50% of appeals that went to a tribunal hearing.

Similarly, it’s possible to appeal to a tribunal against benefits decisions made by the Department for Work and Pensions. The DWP’s decision-making gets upheld at hearings around 47% of the time for Universal Credit appeals, 38% for Disability Living Allowance appeals, and 31% for Personal Independence Payment appeals.

The same rate for SENDIST? 1.7%.

Our valiant local SEND system leaders have a track record at tribunal that’s 30 times worse than the people who are giving us flights to Rwanda and the Bibby Stockholm. Does that give them pause for reflection? Of course not. Neither, it seems, are they moved by judicial calls to improve SEND decision-making

Parental blame is back - and it’s still as much of a lie as ever

If you’ve kept half an eye on the news recently, you’ll have seen an uptick in stories about SEND, tribunals, and public finances. Parent blame is a common theme of these: you can find examples here and here. A few weeks ago, the Secretary of State for Education stated at a school conference that SENDIST was “basically…lots of parents taking councils to tribunal to get to a particular school, normally an independent school, normally very expensive independent schools.”

That’s an interesting claim, and worth checking.

We asked the Tribunals Service recently whether they knew how many SENDIST placement-related appeals involved independent special schools. They told us that they didn’t know – and they told us that finding out would be a prohibitively expensive exercise, given how their data is structured. So we can’t shed any direct light on whether the Minister’s claim is true – although the fact that HMCTS don’t have that information ready-to-hand might tell us that no one else has asked and got a valid answer either.

However, we can compare the numbers of SENDIST appeals involving Section I of an EHCP in 2022-23, with other data showing the numbers of pupils with EHCPs who move between schools each year. In short, while the claim is not completely impossible, it’s highly unlikely to be true.

Does the data support other claims about the SEND Tribunal?

Separately, the DfE also claims the ‘vast majority’ of decisions involving EHCPs are resolved without the need for a Tribunal appeal. This claim is based on an official ‘appeal rate’ statistic, available here. The appeal rate compares the number of actual appeals against the number of theoretical chances to appeal, generating a percentage rate. For 2022, it was 2.3%.

Unfortunately, this number is flawed – because, as every front-liner knows, the SEND system doesn’t work as it’s supposed to. The vast majority of the theoretical opportunities to appeal to SENDIST are about annual reviews for existing EHCPs. The annual review process is utterly broken in many LAs: our previous research suggests that many, probably most of these theoretical opportunities to appeal simply don’t exist.

However, we can measure the appeal rate for some specific parts of the system, using DfE data:

  • Over the last few years, it’s likely that parents appealed around 14% (one in every seven) of the decisions that LAs made when refusing to conduct an EHC needs assessment. Once the appeal is registered, LAs mostly concede these appeals before they get to a hearing. Based on previous FOI data, LAs probably have an 8%-10% success rate when defending these decisions at a SENDIST hearing.
  • Over the last few years, it’s likely that parents appeal around 25% (one in every four) decisions that LAs make when refusing to issue an EHCP after assessment. Again, the LA success rate at these appeal hearings, if they go all the way, has been around 12%.

It’s hard to argue credibly that the ‘vast majority’ of EHCP decisions aren’t appealed. And given the hefty personal resources that families have to draw on to appeal to SENDIST, I certainly wouldn’t assume that the decisions that weren’t appealed were sound. It’s also slightly jarring to see this ‘vast majority’ phrasing in the context of SEND. By the same calculation, the ‘vast majority’ of school pupils do not have an EHCP (it’s around 4%) – yet parts of central and local government are borderline obsessed with getting this percentage down.

What does 2024 hold for SEND changes?

As we speak, a “crack” team of consultants are working on the DfE’s SEND and AP Change Programme. You might recall that the day rates they’re charging the DfE are redacted, under threat of legal injunction. The consultants’ interest in the law is very clear – so it’ll be interesting to see what approach they take to legal dispute resolution for children and young people with SEND.

The DfE Change Programme is planning to road-test a couple of concepts that, if implemented, would affect SEND dispute resolution. This testing isn’t happening everywhere – just in a few LAs. And if it’s happening in your local area, your legal rights are unaffected.

  • One of these concepts is ‘strengthened mediation.’ The consultants haven’t yet articulated how this concept differs from current mediation.
  • The other concept is a ‘tailored list’ of placements, maintained by an as-yet unidentified organisation (in practical terms, it’ll have to be the LA). You can find out more about this proposal here.

If it passes the pilot stage, and if it’s then implemented, the ‘tailored list’ policy probably won’t be ready to roll until 2025. It’s unclear whether – or how – this ‘tailored list’ concept would impinge on families’ right to appeal to SENDIST. At the moment, more than half of all appeals involve a dispute about placement in some shape or form.

But right now? SEND provision still sucks too often in too many places

Meanwhile, things aren’t getting any better for children and young people with SEND outside the consultants’ £[REDACTED] per-day funhouse. The volume of appeals going into the Tribunals system continues to rise. At the end of September 2023, the Tribunals Service had 6,690 SEND appeals still to deal with – yet again, a record number of cases in the system.

And there’s no sign – whatsoever – that senior local leaders making piss-poor SEND decisions are learning anything from tribunal outcomes, or that they even see a need to learn anything from them. They blame parents. They blame the judiciary. They blame central government. Everyone except themselves - a bureaucratic Eight Ace, slurring that everyone’s turned the bairns against them.

Full infographic for the SEND Tribunal 2023

Free to download and share for non-commercial purposes. © Special Needs Jungle 2023

Download the infographic as an accessible PDF

Also read:

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Matt Keer

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