At the end of last week, the government published the detailed statistics from the Special Educational Needs & Disability Tribunal from September 2014-15, i.e the first year of the SEND reforms. Most related to existing appeals for SEN statements.
The most startling thing that jumps out is that of all the cases heard by the SEND Tribunal, the vast majority - 86% - are won by parents. The question is, with an 86% failure rate (and more when you include those appeals conceded before reaching Tribunal) has it never occurred to LA leaders that they're wasting a hell of a lot of our taxpayers money in opposing cases they are most likely to lose?
I've made an infographic of the latest stats (at the end of this post) and I hope LAs can print it and stick it up on their walls as a reminder that forcing parents to Tribunal is, apart from anything else, just plain bad economics.
What did the Tribunal numbers show?
The figures for 2014/15 showed a drop in the total number of appeals to the SEND Tribunal. Why is this? Is it because the new EHCP system is so much better and parents are getting the right support for their children? Or is something else behind it?
There were only 60 decisions about EHCP appeals out of 788 total cases decided at the SEND Tribunal with the others relating to statements of SEN. Likewise, there were 166 EHCP cases withdrawn or conceded out of total 2530 cases withdrawn or conceded before the appeal reached a Tribunal hearing.
Of those that are conceded or withdrawn, many may have been dealt with by telephone hearings as Tribunal Judges seek to reach an early agreement before everyone ends up in the courtroom, which is a very stressful day for parents. In others, LAs will have had a re-think and given parents what they were asking for such as an assessment for their child.
There were a total of 229 appeals relating to EHCPs for the whole year, compared to 3089 cases relating to statements. You could only apply for a statement only up to 31st August 2014, so all those statement appeals date from the 2013-14 school year and will have been awaiting a date at Tribunal.
From Sept 1st 2014, parents could only apply for an Education, Health and Care Plan which would have taken a minimum of 14 weeks for a transfer and 20 for a new entry or a Post 16 transfer. As such, it's highly unlikely that any EHCP appeals were lodged in 2014, especially as the transfers are being done in stages.
We don't have the figures for the actual date that an individual appeal was lodged, but with so many transfers taking far longer than the timescales, it's also unlikley that many could have been lodged in the spring term either. This is especially because there is now a requirement to either go through mediation or get a [no] mediation certificate before an appeal can be placed before the Tribunal.
Therefore, I believe these delays to EHCPs being finalised are, in fact, the main reason for the big fall in SEND Tribunal appeals. If indeed there is an early trend developing for parents to not need to appeal to the Tribunal, it won't really be apparent until next year's figures.
These figures ended in August. We'd like to know the situation for the whole of 2015. Take our quick poll below, then feel free to save or share the infographic about the most recent figures.
You can download the infographic by clicking the image to open it in full size and then "save as" and/or downloading the PDF from the link below the infographic. And please do try to make a comment in the blog comments with your thoughts.
[poll id="10"]
Download the PDF here. The text is copyable.
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Tania is an experienced broadcast and print journalist & author. She also runs a PR, web & social media consultancy, SocialOro Media.
Tania is a rare disease & chronic pain patient advocate with Ehlers Danlos syndrome.
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Having received a Proposed Statement in August 2014, it then took the LA until August 2015 to issue a Finalised Statement (54 weeks). I am now taking them to Tribunal about the contents.
I love reading these facts and figures about tribunals, it is so important for parents to see, when they feel the whole education system is stacked against them.
Good luck with your Tribunal. Would they not mediate properly?
It’s incredible how many people are in the same position as me, I’m having big problems with school while awaiting transfer from Statement to EHCP. My boy is to remain on role of current school who can’t cope with him.
Sorry to hear about this, have you spoken to your local IASS or IPSEA?
Very useful infographic Tania. Something we have yet to face.
Well you know where to come when you do!
It’s not just the Taxpayer that loses money. We had to remortgage and borrow for legal fees. We had to have a barrister as did the LA. We won, so I see it as an investment in our child’s future but we shouldn’t have to spend £24,000 on assessments and legal fees!!! I expect the LA spent just as much. Now I’m stuck with working all the hours to pay back the money. Who can afford this, not me!!!
The infographic doesn’t surprise me. We transferred to EHCP from statement which was straight forward as they knew I would go back to Tribunal if need be. Don’t think they wanted another fight.
Interesting figures. I am in the process of taking my LEA to tribunal as my son is at a school which is not right for him, by their own admission.
The LEA, despite admitting that they have no suitable provision, refuse to agree to my request to move him to a school for ASD children in the neighbouring County with has a place waiting for him as they consider it an inappropriate use of public funds.
I have been to mediation and the mediator told the LEA that if the case was to go to Tribunal they would be highly likely to lose.
From speaking to parents of other boys at the school this is standard procedure for this particular LEA as they can rely upon the delays in the system to give them around 12 months before they have to concede defeat and agree to the placement.
Whilst I appreciate that there are financial considerations to be addressed the LEA clearly do not have the child’s best interests at heart and by the time this process is concluded for us my son will have lost 2 years of secondary level education. It is disgraceful that they can use the system in this way.
Great post Tania, thanks. Gives parents confidence to know that it can be worth going to Tribunal, even though they shouldn’t have to. Have a feeling we could be there before too long too!!
Hi Tania, thanks so much for doing this!
I’ve had a dig around the numbers to see whether families are more likely to end up at Tribunal if they have children with certain types of primary SEND.
I’ve taken the Tribunal figures for 2014-15, and compared them to the identified cohort for each primary type of SEND reported in the DfE’s January 2015 SEN census.
The data is a long way off being perfect, and I’m not a stats expert, but here goes:
– For the 2014-15 academic year, 31 appeals were launched to SENDIST for every 10,000 children or young people with an identified type of SEND;
– For CYP with ASD, the figure is far, far higher: 121 appeals launched to SENDIST for every 10,000 CYP who had ASD as a primary identified need.
– Other types of SEND are represented disproportionately: for CYP with a physical disability, it was 76 appeals per 10,000; for CYP with a hearing impairment, it was 45 appeals per 10,000
– The figures are far lower for some types of primary SEND: just 7 appeals were launched to SENDIST in cases of CYP who had with moderate learning difficulties, or profound/multiple LD.
So if I’ve got this right, families who have CYP with ASD are at least four times more likely to end up using Tribunal than the mean. I say “at least”, because we’re assuming here that ASD is accurately represented and diagnosed in the stats…
The same applies at the hearing stage: families who have CYP with ASD are at least four times as likely to end up going all the way through to the hearing stage than the mean.
If you have a CYP with a physical disability or a sensory impairment – particularly deafness – you are also much more likely to end up in Tribunal than the mean, twice as often in some cases.
I have no idea what causes this. It’s interesting that it’s not just cases with hidden disabilities that are more Tribunal-prone. But hopefully someone more adept with stats & educational research might want to check this out….
No – the Tribunal system is nearly always a win for Councils, even if they lose. It represents a win in terms of delaying provision (and therefore represents a saving for the months it takes to get to tribunal), a win in terms of negotiating a compromise with parents just before tribunal (parents will be happy to accept less than their child needs v the risk of losing) and the cost of a relatively small number of losses in Tribunal is mitigated by all those above and all those parents who can’t face tribunals or don’t know their rights in the first place. Don’t forget of course that Councils also pay for legal representation out of the public purse for cases that they think might cost them a lot if they lose, whereas parents have to stump up themselves. (The system is supposed to be informal and no representation required, which is ridiculous.) There is no reason for Councils to want the current system to change.
Just to give an insight into local authority thinking, here’s a quote from a council report from 2011 which made the case for North Yorkshire to start using legal representation at Tribunal:
Tribunal hearings are becoming increasingly legalistic, with reliance on case law and more parents being legally represented. Tribunal judges, for the first time, are beginning to recommend that LAs are legally represented. Discussions with our colleagues in the Yorks & Humberside area have shown that two LAs have for the first time sought legal representation ( their cases are in the process of being prepared), and others are considering doing so.
Needless to say, the reasoning is completely bogus. The ‘facts’ in the first two sentences were totally refuted by The Ministry of Justice, but show the lengths the Council was prepared to go to in order to maximise its chances of winning.
Full report here: https://www.whatdotheyknow.com/request/121711/response/312859/attach/2/Investigation%20into%20use%20of%20legal%20representation.doc
Refutation by MoJ here:https://www.whatdotheyknow.com/request/130126/response/372802/attach/2/FOI%20Response.doc
It’s not bad ecenomics. LA’s are using the small percentage that give considerably from their own resources to appeal, to encourage acceptance of illegal and poor plans and statements. If they are seen to abide by the law, they will have an influx and become the national provider for SEN.
Because it saves money!
EHCP provision is always a new cost (even if to be expected) it is unplanned/unwanted, to be minimised. If LA already employ Ed psych, sen officers, lawyers…you can afford to stall provision for up to six months….saving cost of provision all the while. If you get to Tribunal the cost of witnesses is not always a new uplanned expense – they don’t always go armed with expensive witnesses, just staff already on payroll and HT’s come cheaper than lawyers! Cost benefit analysis means it’s prob worth their financial ‘while’ to hold out.
Stalling for Tribunal has to be a strategic aim, unwritten and no involvement with forums who can’t get nearly involved in disputes/legal service teams.
I mean, why else would LA stand your ground with these odds and rising…85% last year, a formidable new parent carer lawyer now on SENDIST and EHCp Tsunami and spending review still to hit???? Not to mention, thanks to SENDIST evidence and SNJ making this data so palletable, parents will now be even more confident to appeal as clearly good odds on a win if you get good advice.
For the LA, the gain is in the process not the out come!!!
Their outcome, it’s the only thing that ‘adds up’, is that they seek deferral of provision cost for as long as possible or until parent folds. Bottom line!
I doubt it!
First they have to read it honestly, not praise themselves on how well EHCP is going because DfE are asking!
I’m sure they see every EHCP provision as a new cost, even if it is the reason for being!
LA’s seem to view provision requests as unplanned expenses and somehow therefore, discretionary. An unplanned/unwanted expense and an opportunity to save when other budgets can’t be.
If LA already employ Ed psych, sen officers, lawyers…they can afford to stall provision for up to six months pending tribunal/late settlement….saving cost of provision all the while because if LA do get to Tribunal the cost of witnesses is not always a new uplanned expense. They don’t always go armed with expensive witnesses/lawyers, but often take staff already on payroll and who need to be seen to earn their keep (lawyers!). HT’s come even cheaper than lawyers, whether they want to our not! Cost benefit analysis means it’s prob worth the LA’s financial ‘while’ to hold out, and save six months provision cost at the risk of a smaller than we might think cost of their tribunal defence.
Of course they could save the lawyers salaries that they increased employment of post reforms and pay sen teams to do a better job with better training to get children better help sooner…
This stalling for Tribunal (Im sure, since my own Tribunals 9+8 years ago) has to be a strategic aim; results are too consistently poor, cases way too weak and even predictably lost for this many LA’s to think this many cases hold water – erroneously! Surely that’s no coincidence? Forums are not involved in co producing these unwritten policies nor can we get involved with the ‘invisible’ legal team – gov needs to make this change asap if we are to help shape improvements. The law alone will make no change unless their is a financial incentive – reward those LA’s that do it well, punish those that don’t. There is no disincentive to this behaviour. Ombudsman is toothless and parents are too tired for further legal action.
Why else would LA’s stand their ground with these odds and rising…85% last year plus a formidable new parent carer lawyer now on SENDIST and an EHCp Tsunami and spending review still to hit?
Thanks to SENDIST evidence and SNJ making this data so digestible, parents will now be even more confident to appeal as clearly good odds on a win if you get good advice.
For the LA, the gain is in the process not outcomes for the children. £ are still, really, the only concrete measure of success for LA’s around ehcp.
Their outcome, it’s the only thing that ‘adds up’, is that they seek deferral of provision cost for as long as possible or until parent folds/tribunal I.e. Six months saving. Sorry, but this is the evidence, they are getting it wrong most of the time but still pushing parents to appeals that LA’s will almost inevitable loose. The LA’s are deferring provision to appeal even more than last year. Not learning, no progress. No outcomes for children. Bottom line!
I myself have done 4 tribunals – 2 being this year. we won every single one – we also had at one hearing the judge award costs against the :A as they acted so unreasonably, twice they instructed barristers and every time it was just us as parents fighting the system. at the final hearing for placement , our place choice was cheaper but the LA tried to manage the figures to say otherwise which the judge saw straight through and asked them to reconsider their position which they refused to do so we had to wait until july to find out the decision by which time the school we won had closed for the summer so no transition could happen. as a family we have been to hell and back – now just been through the complaints process and the LA are unrepentant – say we have the right to appeal so its all our fault we were subjected to 4 hearing as though it was our choice – they don’t see that they made poor decisions and the costs order shows just how badly they behaved but they just don’t see it and wont apologose for it. what more can we do but now walk away knowing that there is no comeback over how they behave. we take comfort that our children are now all in the right school and happy and settled but we cant rewind the clock and the children saw the stress we were under, Christmas last year dictated by deadline and preparations for tribunal, their parents not focused on them 100% as too busy worrying about everything else – all we can do it now make it up to them this Christmas – but as parents we have changed forever and have lost all respect for these officers who have the power to cause us such anguish and put our family through so much. the cost alone of fightning 4 tribunals – my husband having to work overtime and weekends to fund the reports – the system is wrong and parents have a hard enough time just getting through each day caring for their kids without becoming legal advocates on top of everything else.
Our local authority ‘package buys’ legal services and I suspect they are not alone. This means there is no incentive for them to not pursue a legal course of action as they have paid for it already. As to whether they then pay for a solicitor (or solicitor advocate) to represent them at tribunal, which they usually do, I am led to believe that is decided on a cost basis… How much it costs to buy a solicitor’s time vs how much they will save if the child does not get an EHCP. If this is the case then no matter how damning the figures are, there is no incentive for the LAs to alter the current pattern of behaviour.
I would love to know how many councils take parents to the tribunal ‘door’ and then just walk away from it, at the very last moment. They won’t show up in the statistics but I know this is happening…
There needs to be something in about communication protocols – our local councillor has been told more than us about our child’s case and where it is up to.
Also, consequences if the LA goes over the 20 weeks.
Plus, something around treating all suggested provision equitably – my daughter and our family have found the perfect school for her and told the LA. They have gone to visit the 2 schools they are suggesting, but not the school we want! They are therefore making ill-informed decisions.
Also, a reminder about their duties to provide an education – my child has been out of school for over 8 months with absolutely no education at all.
It is a shame that something can’t be put in about if the parent is successful then the LA pay back ther tribunal costs – perhaps this would stop them making so many parents going to tribunal in the first place. (I know it can’t be put in, but I just needed to say it!)
Good idea – we should add this in to our code of conduct too