Whether you’re a SEND parent or SEND professional, you’re probably running on vapour right now as we come to the end of the longest term.
If you can though, spare a thought for the hard-working statisticians at the Ministry of Justice, who’ve been slaving away over red-hot spreadsheets so that you can find out what’s been happening at the Special Educational Needs & Disability First-Tier Tribunal (SENDIST) over the last year.
If you’re not familiar with SENDIST, check here– it’s a tribunal where individual families can appeal against a specific range of local authority SEND decisions. For families, it’s an essential part of the SEND landscape.
You can find the new SENDIST data here, which gives us facts and figures updated to the end of the 2017-18 academic year (31stAugust 2018). Check our infographic for the headline figures, but it’ll come as no surprise to most of you to hear that in the current environment, the SENDIST First Tier Tribunal has never been busier.
Scores on the doors
- Families registered 5,679 appeals with the SENDIST First Tier Tribunal in 2017-18 – 20% up on last year, the largest number ever recorded.
- SENDIST saw 5,000 appeals through to completionin 2017-18 – 14% up on last year, also the largest number ever recorded.
- Of those 5,000 appeals, nearly 2,300 had to be “decided” by SENDIST– meaning that they had to go all the way to a panel hearing. That’s a 44% increase on 2016-17, which itself was a record year.
- Before the 2014 SEND reforms, only 20% of SENDIST appeals had to go all the way to a hearing. Now, 46% of SENDIST appeals require one. It’s not completely clear why this is happening; one explanation might be that SENDIST has clamped down on last-minute appeal concessions by local authorities.
- We estimate that local authorities (LAs) collectively allocated around £34m of their scarce resources towards defending SENDIST appeals in 2017-18.
- In all, since the SENDIST reforms became law in 2014, we estimate that LAs have blown over £100m of their resources on SENDIST appeal defence – appeals that they lost nine times in every ten.
What’s driving the increase in appeals?
There are multiple factors to the increase, but one of the most powerful will be poor-quality conversions of statements of special educational needs. LAs were supposed to convert all remaining statements over to the new system by April 2018 – but by late last year, LAs still had a big backlog of statements to convert, and tens of thousands of statement conversions were hurried through in the 2017-18 period.
We had big concerns about the quality of these statement conversions, and it looks like families did too. About 60% of the increase in SENDIST appeal numbers this year comes from families contesting the substance of EHCPs.
Since the SEND reforms that kicked in in September 2014, families have won 89% of SENDIST appeals that have gone to a hearing. However, the headline figure for 2017-18 looks a bit different – the Tribunals Service summary booklet says that this year, only 66% of SENDIST appeals that went to hearing were won by families.
Has there been a change? No, not really. This year, the statisticians are using a slightly bizarre counting method, one that doesn’t count a large swathe of appeal outcomes as parental ‘wins’. For example, if a parent appeals against an LA decision to refuse an EHC needs assessment and SENDIST orders the LA to conduct the assessment, the stattos aren’t currently counting that as a decision in favour of parents. Which is a bit weird...
If you count those back in, then 2,035 of 2,298 decisions went in favour of families – 89%, same as last year. So there hasn’t really been much change at all.
In all, 85% of all decisions went entirely or almost entirely in favour of parents in 2017-18. A small number of additional decisions (73) went somewhat in favour of parents – in most of these, SENDIST agreed with parents that EHCP content needed to be changed, but they didn’t agree to parents’ preferred placement.
What do the LAs think?
However you dice it, whenever LA decisions are exposed to the scrutiny of a SENDIST panel that knows the law, those decisions are found wanting nine times out of ten. As they have been for years now. And that’s appalling.
What do the LAs themselves make of it? Judging from written evidence submitted to the Education Select Committee’s SEND Inquiry, at least some LA managers are unhappy – several have written anonymously to the Education Committee, accusing the Tribunal of being unhelpful, or biased, or applying an unworkable definition of the law.
Other, more senior LA figures, are more upfront. Several directors of children’s services gave evidence to the Select Committee this month, and had the following to say about Tribunals:
[Surrey] “I can tell you the Surrey position. We have had a 55% rise in tribunal cases in the last two years… …That will run into several hundred, 240-odd, I think, in a year. We invariably lose. We lose nine out of 10.”
[Surrey] “It is massive amounts of wasted energy and it plays into an adversarial scenario where parents are almost encouraged through the tribunal to fight the local authority.”
[Surrey] “There are two costs. There is the cost of defending the tribunal. I have a group of 10 officers who do that as a full-time job so I already have a cost of sort of £500,000 just to fund the process, as it were, before any of the outcomes. If we were to put a number on the outcomes, that probably costs the local authority £30,000 to £40,000 each time we lose. I have an accountant with me who can do those figures but many, many, many millions of pounds.”
[North Yorkshire] – “I could not give you numbers, but tribunals are going up. A 90% failure rate sounds quite good actually. The amount that is upheld is very, very high. I think that is just because the Children and Families Act 2014 raised the bar massively. We lose nearly all of them so we are anxious to avoid them wherever we can. They do tend to be the more expensive plans.”
What does this tell us?
It's pretty instructive, reading this. For one thing, the 2014 Children & Families Act did not “raise the bar massively” as Yorkshire seems to think – the legal thresholds aren’t really that different. Massive amounts of energy are being wasted – because LAs make unlawful decisions time and again, SENDIST overturn those decisions again and again, and parents get ground into dust again and again.
LAs can stop this massive waste of energy and resources whenever they want to – by making consistently lawful decisions.
And in what world does a 90% failure rate sound “quite good actually?” Well, there is such a world. It’s a world where the SENDIST process is cynically deployed as a demand management tool – one where a lengthy Tribunal can often be cheaper for the LA than actually meeting the child’s needs right away, right when the child needs it.
Yes, LAs are desperately short of SEND funding. But when it comes to Tribunal defence, money is always, always available.
Last week, an LA in the North West put an agency advertisement out for a SEND Tribunals Officer – six-month contract, at an eye-watering £350-450 per day. It takes some brass neck to claim poverty when you can spare that sort of money.
The SEND Tribunal Infographic
The National Trial
So what else has changed in the world of SEND Tribunals in the last year?
In April, SENDIST introduced a two-year ‘national trial’that temporarily extends its powers outside education provision. For the first time, parents and young people with SEND can ask Tribunal to make recommendations about the health and social care aspects of EHCPs, as well as the educational aspects.
The health and social care recommendations are just that – recommendations. They aren’t legally binding in the same way that Tribunal’s education directions are. But if the LA chooses to disregard those directions, they have to explain themselves in writing.
Our columnist Hayley Mason outlined the implications of the national trial for families a few months ago. One of the main concerns she raised was the prospect of families incurring extra costs if ‘national trial’ hearings run into a second day; families might also run into additional costs if they seek independent health and social care evidence.
This extra cost burden has been an issue for several families I have spoken to, but it’s unclear how widespread an issue it is. The LA will also pick up additional costs too, but happily for them, Government will pay up to £4,000 per case for additional costs. Parents? They get nothing.
It’s still far too early to determine how well the Tribunal national trial is going – only a small number of national trial appeals have been concluded, and there’s very little detail on their outcomes. IPSEA have dryly noted though that
“It is not surprising that the first few months of the new system have been beset with confusion, delay and in some instances a failure on the part of authorities to properly engage in the new process.”
Creaking At The Seams
More broadly, the ever-rising number of SENDIST appeals that go all the way to a hearing is stretching the Tribunal service to its limits. As the SEND system itself gets stretched beyond capacity, there’s a knock-on impact on SENDIST too. Three out of every four listed SENDIST hearings got postponed in 2017-18, and the problem seems to be getting worse.
Most people I have spoken to in recent months have had their SENDIST hearings postponed at least once – sometimes at very late notice, usually because there hasn’t been a spare venue, or a panel, or sometimes both. And the people who suffer most from this are parents, who often aren’t in a position to whistle up flexible childcare.
Worryingly, there are also other difficulties emerging - we’re seeing an increasing number of cases where families have received poor, misleading, or inadequate advice about SENDIST appeals. We’ll have more about this problem - and what you can do to avoid it - in the very near future...