Will the upcoming SEND review reverse the tribunal trend?

The Local Government Association (LGA) has released its study ‘Agreeing to disagree? Research into arrangements for avoiding disagreements and resolving disputes in the SEND system in England’. The report identifies that the aspirations of the SEND reforms of 2015 failed to prevent a huge rise in legal disputes and tribunal hearings. It highlights the soaring levels of cases that are only resolved at tribunal. It reiterates how, against a backdrop of funding deficits, councils are struggling to meet significantly increased demands for SEND support.

The most damning conclusion is that the SEND system has become more adversarial following the reforms. New figures reported form the study show:

• The number of appeals to tribunals over SEND disagreements has more than doubled since the reforms, rising by 111 per cent between 2013/14 and 2020/21
• Over 9 in 10 appeals are decided in favour of families, overturning the original decision made by councils. Prior to the reforms, 83 per cent 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 per cent) decided at a tribunal, whereas now the figure is almost two thirds (64 per cent)
• The proportion of decisions appealed has gone up from 1.16 per cent at the time of the reforms to 1.74 per cent in 2020

With over 90 per cent of cases found in favour of families it would appear that a lot of time and money is being used to fight cases that should have been put into providing the support in the first place.

The study found 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.

The LGA is calling upon the government to use the SEND review to make fundamental changes to the SEND system which could involve:

• Providing greater clarity around the level of need requiring SEND support
• Making mainstream settings more accountable for SEND inclusion
• Enabling more multi-agency responsibility such as health and care bodies not just local authorities

This comes after IPSEA won an appeal at the High Court calling time on local authorities delaying issuing updated EHC plans. The ruling means that: 

• local authorities must issue a draft amended EHC plan within 4 weeks of the annual review and 
• the final amended plan must be issued within 12 weeks. 

This fits with the LGA findings that the reforms are not the main issue if all parties follow what is legally required. It remains to be seen when the SEND review green paper is issued later this month as to whether the changes proposed reflect the evidence from all stakeholders around what needs to be fixed.