Of 11,052 SEND tribunals registered by councils in 2021/22, a staggering 96% were won by parents, carers, and young people.
The result is £59.8m of public money wasted on SEND tribunals – enough to fund SEN unit placements for 9,960 young people.
Furthermore, nearly 3,500 further cases were withdrawn or conceded before they got to tribunal hearing.
The disturbing figures have been revealed in a study commissioned by the Disabled Children’s Partnership and published by Pro Bono Economics (Jemal & Kenley, 2023).
Furthermore, the number of SEND tribunals being brought is rising – with the 11,052 hearings in 2021/22 representing a 29% increase on 2020/21.
Tribunals are brought by parents, carers and young people who wish to dispute council decisions about the provision of Education, Health, and Care Plans (EHCPs).
EHCPs are a legal document issued by a local authority which identifies a child’s educational, health and social needs and sets out the support that will be provided to meet those needs, including at school.
The £59.8m bill racked up by the lost tribunal cases is split between local authorities and the courts – they cost local authorities £46.2m and the courts £13.6m.
The study also reveals the significant strain being placed on children and young people, as well as their parents and carers, while they battle for support.
For the families it includes financial costs – often thousands of pounds – because of the time-consuming process and the “hundreds of hours spent preparing for tribunals”, which often affects their ability to work.
For the students it includes developmental delays, deteriorating mental and physical health, and poor academic performance.
The report states: “There are likely to be both short and long-term costs that accrue while children and young people with SEND are waiting for suitable support.
“From additional treatment and equipment needs, to developmental delays, and from dropped academic grades to additional use of the foster care system, the costs to the taxpayer and the negative outcomes for children, young people and their families can rapidly accumulate.”
As of January 2023, there were more than half a million children and young people in England with EHCPs. The number has surged, with more than twice as many new EHCPs issued in 2022 than in 2015, when they were first introduced.
The study says that this reflects increased awareness and understanding of SEN, as well as a growing number of parents and carers “recognising that they need an EHCP in place for their child’s needs to be adequately met”.
But local authorities are now taking much longer to come to their decisions. In 2022 for the first time fewer than half of all EHCPs were issued within the statutory minimum of 20 weeks.
And disagreements are growing. One SEND tribunal was registered for every six new EHCPs that were issued in 2021/22. The study says this is a result of several factors, including growing applications for EHCPs, local authority staff struggling to meet demand within “tight SEN budgets”, and “an erosion of trust between people seeking support and local authority staff”.
The authors of the study explained: “Disagreements can arise at any stage of the EHCP process and can occur for a variety of reasons, from a decision by a local authority not to assess for an EHCP, to a decision not to issue one after an assessment has been made, or because a parent/carer or young person disagrees with the content of a draft EHCP.”
Different disputes: Disagreements can arise at any stage of the EHCP process and can occur for a variety of reasons as this diagram from the report illustrates. Source: Jemal & Kenley, 2023
Anoushka Kenley, head of advocacy at Pro Bono Economics, and co-author of the report, said the growing number of legal challenges to council decisions was “deeply worrying”.
She continued: “Children and young people in need of support are having to go without it, parents and carers are being forced to give up time and money on tribunals, and cash-strapped councils are wasting millions on unsuccessful disputes.
“The entire process is in need of a rethink, to keep children and their families from the stress and pain of going without the support they so desperately need. Getting it right would not only give these young people the best possible start in life, it would also benefit the economy as a whole.”
Stephen Kingdom, campaign manager at the Disabled Children’s Partnership, added: "It is deeply against the British sense of fair play to pit parents and carers of disabled children against highly paid barristers paid for by local authorities from money that comes out of the public purse.
“It is particularly unfair when you understand that these tribunal cases, that can take years, are lost by local authorities in the vast majority of cases because parents know what is best for their children.
“We are calling for more information, advice for parents and young people; for better training for local council staff so they make the right, lawful decisions first time; and, crucially, stronger accountability.”
Commenting on the report, Paul Whiteman, general secretary of the National Association of Head Teachers, said: “What we are seeing here is the manifestation of a broken system. School staff, governors and parents can see the underlying issue is that the system for supporting children with SEND is too often skewed so it is based upon the resources available rather than pupils’ needs. Councils simply do not have the resources to meet the growing demand they are facing.
“While the government’s new SEND plan contained some sensible ideas, it did not address this funding gap. We’ve heard of schools who have had to go into deficit to provide the right help for children. Schools are also hamstrung by a shortage of specialist staff, as well as funding, while there is a national shortage of special school places.”
The Disabled Children’s Partnership is a coalition of more than 110 organisations that campaign for improved health and social care for disabled children, young people, and their families.
- Jemal & Kenley: Wasting money, wasting potential: The cost of SEND tribunals, Pro Bono Economics, September 2023: https://tinyurl.com/pjr7rayz