Councils accused of “wasting” £60m in a year on tribunal battles over support for children with special educational needs

Councils wasted £60 million in a year on “unsuccessful court disputes” with parents and carers seeking support for children and young people with special educational needs and disabilities (SEND), according to research by Pro Bono Economics, commissioned by the Disabled Children’s Partnership.

The report, Wasting money, wasting potential: The cost of SEND tribunals, said that more than 11,000 SEND tribunal claims - contesting decisions by local authorities - were registered in England in 2021-22, an increase of 29% on the previous year.

The challenges were brought by parents, carers and young people disputing council decisions about an education, health and care plan (EHCP) for a child or young person.

Pro Bono Economics said it found that local authorities in England lost 96% of SEND tribunal hearings during the 12-month period, at a cost of nearly £60mn.

On this, the researchers said: “This expense – split between local authorities and the courts system – is enough to fund just under 10,000 places in special educational needs (SEN) units within mainstream schools each year”.

PBE warned that for children and young people, the wait for support can lead to problems such as “developmental delay, deteriorating mental and physical health, and poor academic performance”.

The report's findings included that:

• Of the £59.8mn of public money “wasted” on lost SEND tribunals in 2021-22, costs of £46.2m were attributable to local authorities and £13.6m to the courts.
• Nearly 3,500 disputed EHCP cases were withdrawn or conceded before they got to tribunal hearing in 2021-22.
• If public sector staff spent as much time preparing for appeals that were registered but not heard, PBE estimated that total public sector spending on SEND tribunals in 2021-22 could be as high as £80m.
• In 2022, for the first time, fewer than half of all EHCPs were issued within the statutory 20 week timeframe.
• One SEND tribunal claim was registered for every six new EHCPs that were issued in 2021-22.

Analysing the reasons for “growing disagreements” about EHCP decisions, the report cited a combination of “growing applications for EHCPs, local authority staff struggling to meet this need while managing tight SEN budgets, and an erosion of trust between people seeking support and local authority staff”.

Anoushka Kenley, Head of Advocacy at Pro Bono Economics, said: “The growing number of legal challenges to council decisions about how to support children with additional needs is deeply worrying. 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.

“Our new research shows this waste extends beyond the £60m of public money spent on lost tribunals in 2021-22, to wasted potential in the children and young people forced to go without essential support while these disputes rumble on.

“The entire process is in need of a re-think, 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.”

Responding to the report, a Local Government Association spokesperson said: “Councils fully recognise the right of families to take appeals to tribunals. However the rising number is indicative of a system that is not working.

“Last year councils issued a record number of Education, Health and Care plans – 66,400 – which shows the significant challenges that councils continue to face managing the rise in demand for support.”

The spokesperson added: “The Government’s SEND reforms will fix some problems with the current system, but we will work with them because we want them to go further in addressing the fundamental cost and demand issues that result in councils struggling to meet the needs of children with SEND.

“Alongside scrapping high needs deficits, improving levels of mainstream inclusion will be crucial to the success of any reforms, reducing the reliance on costly special schools and other settings. Powers to intervene in schools not supporting children with SEND should be brought forward at the earliest opportunity, but should sit with councils, not the DfE.”

Chris Munday, Chair of the Resources and Strategy policy committee of the Association of Directors of Children’s Services (ADCS), said: “It is important that children with special educational needs and disabilities get the right support, in the right place at the right time but everyone agrees the current SEND system is not working.

“The 2014 reforms were ambitious, rightly raising expectations and extending support from 0 to 25 years, but they have not delivered the intended outcomes. The SEND system has never been sufficiently funded by central government to meet the level and complexity of need we are seeing, and we are not convinced the Delivering Better Value and Safety Valve programmes go far enough to enough to address high needs deficits.”

Munday added that despite record levels of spending there was “growing frustration and dissatisfaction with how the reforms are working on the ground from all sides”.

He said: “The SEND system needs a reset and the government’s SEND and AP improvement plan is a good starting point for reform, however, it does not acknowledge the baked in costs in the system which will continue for many years.

“The report notes a growing number of cases are being taken to tribunal and local authorities want to work towards creating a less adversarial, more child centred system based on children’s needs. The increasing time and money spent on SEND tribunals is time and money that otherwise could be reinvested into the system.”

Lottie Winson