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A zero sum game?

The number of SEND tribunal cases is rising and the proportion of appeals ‘lost’ by local authorities is at a record high. Lottie Winson talks to education lawyers to understand the reasons why, and sets out the results of Local Government Lawyer’s exclusive survey.

Councils face deficit of almost £1bn in funds needed to support children with SEN: report

Councils in England are forecasting a collective shortfall of £926m for supporting children with special educational needs, an investigation by the BBC has revealed.

According to figures published by the Department for Education last week (13 June), councils issued 84,428 Education, Health and Care Plans (EHCPs) in 2023 – an increase of 26.6% on the previous year.

EHCPs combine a child’s education, health and social care support into a legal document issued by local authorities in England.

As of January 2024, there were 575,963 children and young people with an EHCP.

As part of its investigation into special educational needs (SEN) budgets, the BBC contacted 153 councils in England to request their financial forecasts for this year, of which 113 responded.

When asked about the gap between funding and what they are spending out of their high needs budget, the councils forecast a collective shortfall of £926m.

Further, the investigation uncovered that 38 local authorities have entered into “bailout agreements” with government.

However, the council with the biggest shortfall in proportion to its funding is not in the bailout programme.

Cheshire East had a budget of around £56m for SEND for the last financial year, and ended up spending £88m, the BBC reported.

Responding to the BBC’s investigation, Alex Temple, solicitor in Bindmans’ Public Law and Human Rights team said: “Funding for children with Special Educational Needs and Disabilities (SEND) is in crisis. This is not new. Those of us who work with children with SEND have, for years, struggled against a system where councils simply do not have the money to meet their legal obligations. This has meant that families must fight for the education and vital support they are entitled to. It also means that children have missed out on significant parts of their education whilst waiting for support to come online, or may even go without a school place at all.

“This is why it is so concerning that this long term has not been reversed, but has actually accelerated with today’s news that the shortfall has reached nearly £1billion. We urge the party [that] forms a government on 5 July to make fixing this a priority. Otherwise, the system will continue to reward families who can access support and fight hardest for the support they are entitled to, and others will be left behind.”

Last week, the LGA also warned that the rising need and cost pressures make it “imperative” that whoever forms the next government reforms the SEND system. It called for a focus on improving levels of mainstream inclusion, and for the next government to “write off councils’ high needs deficits”.

Cheshire East Council has been approached for comment.

Lottie Winson