Councils call for SEND review to tackle huge rise in tribunal hearings

The number of appeals to tribunals over special educational needs and disabilities (SEND) disagreements has more than doubled since reforms were introduced under the Children and Families Act 2014, rising by 111% between 2013/14 and 2020/21, research commissioned by the Local Government Association has found.

The LGA said the huge number of cases was indicative of "fundamental imbalances" in the SEND system.

The Association said councils shared the ambition of the Government’s SEND reforms in 2014 to reduce the need for parents and carers to have to fight to get support.

However, a new study commissioned by the LGA – ‘Agreeing to disagree? Research into arrangements for avoiding disagreements and resolving disputes in the SEND system in England’ – has found these objectives have not been met, with soaring levels of cases that are not resolved without being taken to a tribunal.

The LGA's report also reveals that:

• More than 9 in 10 appeals are decided in favour of families, overturning the original decision made by councils. Prior to the reforms, 83% of tribunal appeals were made in favour of the appellant.
• Before the reforms in 2013/14, more disagreements were resolved before they got to a formal tribunal hearing with around a fifth of appeals (21%) decided at a tribunal, whereas now the figure is almost two thirds (64%).
• The proportion of decisions appealed has gone up from 1.16% at the time of the reforms to 1.74% in 2020

The report also highlighted a potential lack of equality of access to dispute resolution, with most councils reporting that tribunal appeals were more likely to come from more affluent families and less likely from those of more deprived backgrounds.

The research claimed that the key factor behind the rise in the rate and number of appeals was not councils failing to meet their legal duties under the Act but rather was reflective of "deeper, fundamental problems that need to be addressed within the SEND system".

Concerns were also expressed about a growth in unregulated organisations encouraging and advising families to appeal.

The LGA said the SEND review should be used to reduce significantly the need for cases to be taken to tribunal. It suggested that changes to the SEND system could include:

• providing greater clarity around the level of need that would require SEND support;
• making mainstream education settings more accountable for SEND inclusion; and
• enabling decisions over SEND provision to be made jointly by all those responsible, such as health and care bodies, and not just councils.

Cllr Anntoinette Bramble, Chair of the LGA’s Children and Young People Board, said: “It is vital the Government’s SEND review urgently tackles the increasingly adversarial nature of the SEND system since the 2014 reforms and minimises the need for legal disputes and tribunal hearings, providing the support that every young person and their family needs.

“Parents rightly expect and aspire to see that their child has the best possible education and receives the best possible support, and councils do everything they can to achieve this, within the budgets made available by the Government.

“However, the soaring number of tribunal hearings over the SEND support provided to a young person, and the overwhelming number decided in the appellant’s favour, is indicative of a system that is not working.

"The factors that are driving these trends are symptomatic of challenges within the wider SEND system. This must be addressed in the forthcoming SEND review.”

On Twitter legal advice charity Ipsea described the LGA’s report as “extraordinary” and one that “misses the point that LAs wouldn't keep losing Tribunal appeals unless the evidence supported families of children & young people with SEND. The Tribunal does nothing more than apply the law.”

Lottie Winson