Children can experience a range of special educational needs and disabilities (SEND) which affect their school learning. These can include communication difficulties (like autism), emotional and behavioural concerns, cognitive issues (dyslexia, dyscalculia), sensory impairment (sight or hearing), and physical disabilities. They need extra support or a tailored curriculum to succeed, but their parents are being fobbed off by local authorities when they try to access it. So parents have more to worry about than just their child. Getting appropriate support for them is an arduous, time-consuming process.
In a nutshell, the process for accessing support for a child with genuine learning issues is this:
- Parent or school can request an EHC (Education, Health & Care) needs assessment from their local authority (LA). Assessments or information from professionals such as school/ doctor can be submitted as evidence.
- The LA must tell parents within 16 weeks whether an EHC Plan will be made.
- It has 20 weeks from the date of receiving the request to issue the final EHC plan if it decides one is needed. The plan details specific support to be made for the child.
But increasingly local authorities have been refusing to carry out an EHC needs assessment, or to issue EHCPs. And record numbers of parents have been appealing these council refusals at independent tribunals. 13,658 appeals were made in 2022/23. Most appeals (61%) are from families already in the EHCP system, e.g. disputes about the contents of a plan, including the school named, rather than about initially securing a plan (37%).
Councils lose virtually all cases
Over 98.3% of parents’ cases go on to succeed at tribunal with the judge finding against the LA decision. When it loses the case, the authority must then start the EHC needs assessment or produce a plan, which may stipulate extra support for the young person, like a dedicated learning support assistant at school.
I’ll repeat the number because it’s so extraordinary. Councils lose 98.3% of appeals. They must know their refusals will trigger unwinnable cases.
Why do this?
Councils are finding it increasingly difficult to fund EHC plans. “Local authorities in England are facing a shortfall of almost £1bn in special needs budgets”, the BBC found earlier this year.
The number of new plans in 2023 increased by 26.6% on 2022. It seems likely that authorities are struggling to provide the staffing and funding to meet this surging demand.
Indeed, the County Councils Network claimed this week that “SEND deficits risk bankrupting almost three quarters of England’s largest councils by 2027”, and urged the government to act.
Hertfordshire County Council fails to debate SEND
A councils’ struggle to deal with spiralling SEND cases was illustrated in a Hertfordshire County Council meeting last week. Councillors were accused of ‘filibustering’ to avoid debating a Liberal Democrat SEND motion. The motion concerned tribunal appeals, 96% of which are lost by the council.
Conservative council leader Richard Roberts strongly denied there was any deliberate attempt by Conservatives to filibuster the debate.
But Liberal Democrat Cllr Mark Watkin said they had denied families’ voices to be heard.
The motion stated that 514 SEND appeals were lodged in 2023/24. Of those that reached tribunal 96% were conceded. It highlighted the emotional impact on parents, and called for the council to identify cases that would probably not be successful, and to divert resources that would have been used defending them to improve SEND services.
Wasted money
Across the country, nearly £60 million was spent on lost SEND tribunals in 2021-22. The waste of taxpayers’ money on doomed cases has been highlighted more than once.
The Administrative Justice Council strongly advised councils to learn from experience, and get decisions right first time to reduce expenses.
IPSEA (Independent Provider of Special Education Advice) is a leading charity helping families of children with SEND to get the support they are legally entitled to.
Maria Bloom, their Legal Team Member, says,
“We know… that local authorities often fail to provide all the information the Tribunal requires when it makes its initial response to a parent’s appeal. The Tribunal aims, by seeking this detailed information, to help LAs identify when they shouldn’t be opposing the appeal, but it’s so often not provided… This reduces the likelihood of the LA recognising that it doesn’t make sense to oppose the appeal…Given what statistics say about an LA’s chances of successfully defending an appeal, it sometimes seems that the lack of cooperation is a deliberate tactic to delay the inevitable.”
IPSEA’s Policy Manager Catriona Moore has asked if LAs “will continue trying to provide as little as they can get away with until the Tribunal tells them otherwise?”
The future
Many MPs find that much constituency casework concerns SEND issues, with families experiencing trauma enduring a legal process to have their child’s needs met. Marie Goldman, Chelmsford’s LibDem MP, has said that it is “a perverse system in which we now see local authorities battling with parents…”
The government must not “water down entitlements to fit funding” as the Conservative administration may have been considering. Many hope that the new government will meet the challenge of completely overhauling a system which is not fit-for-purpose.
