A new report addressing the soaring level of special educational needs and disabilities (SEND) cases being taken to tribunal has received widespread criticism from charities and parent forums.

The report - Agreeing to Disagree - was commissioned by the Local Government Association, which represents councils across England, and aimed to research arrangements for avoiding disagreements and resolving disputes in the SEND system in England.

It also wanted to look at the factors giving rise to these trends since the Children and Families Act in 2014 reformed how services and support were delivered for disabled children and young people with SEND.

The report found that the number of appeals to tribunals over SEND disagreements has more than doubled in the past seven years and over nine 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.

It also found that 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 report claimed that the main factor behind the rise in the number and rate of appeals was not councils failing to meet their legal duties under the Act, but instead was reflective of deeper, fundamental problems that need to be addressed within the SEND system.

This included a growth in unregulated organisations encouraging and advising families to appeal and tribunal appeals coming from more affluent families.

SEND review must reduce tribunal cases, report says

A cross-Government SEND review was launched over two years ago, which brings together government departments with representatives for parents, schools, colleges and early years, local government, health and care and independent experts. The aim to assist the Department of Education on new recommendations to be set out in a SEND green paper to be published early 2022. 

The LGA is calling on the government to use the SEND review to significantly reduce the need for such a high number of cases to be taken to tribunal, by making fundamental changes to the SEND system.

This could involve 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."

LGA report completely misses the point of tribunals

Organisations such as IPSEA (Independent Provider of Special Education Advice) have since criticised the report saying it completely misses the point that parents wouldn’t succeed at tribunal unless the evidence supported their case. It said that the tribunal doesn’t uphold parents’ appeals because they engage persuasive advocates or because the judge gives in to demanding families – decisions are made on the basis of law and evidence.

IPSEA’s chief executive Ali Fiddy, added: “There are only two ways, as I see it, that the rate at which local authorities lose SEND appeals will fall. One is if local authorities comply with the legal framework and make lawful decisions. The other is if thresholds for assessment and support are made higher.

"It will be an absolute disgrace if the SEND Review aligns with the LGA’s preference, as this will result in children and young people with SEND being penalised while local authorities are rewarded for failing.”