Councils in England have been accused of “wasting” millions of pounds in legal disputes with parents and carers over support for children with special educational needs and disabilities (SEND).
More than 11,000 tribunals involving SEND that were registered in the year 2021-22 have been analysed by a new report, which highlights how 96 per cent were won by parents, carers and young people.
The 11,052 cases cost some £59.8 million - the majority of which had to be paid by local authorities, the Pro Bono Economics report found.
The report, commissioned by the Disabled Children’s Partnership, claims some 9,960 places in special educational needs units in mainstream schools could be funded each year with the money “wasted” on SEND tribunals that are lost by councils.
Pro Bono Economics said the number of legal challenges to council decisions about how to support children with additional needs had increased by 29 per cent on the previous year, which it called “deeply worrying”.
But councils say they are struggling to meet rising demand for SEND support, and that the government needs to reduce the reliance on “costly” special schools.
And a headteachers union said councils ”simply do not have the resources to meet the growing demand they are facing”.
Paul Whiteman, general secretary of the NAHT school leaders’ union, described the figures as a “manifestation of a broken system”.
He added: “Councils simply do not have the resources to meet the growing demand they are facing. While the government’s new SEND plan contained some sensible ideas, it did not address this funding gap, which leaves both schools and local authorities struggling to offer the support children need amid growing demand, despite the best efforts of staff.
“We’ve heard of schools who have had to go into deficit to provide the right help for children.”
How parents fight EHCP decisions
Parents can ask their local authority to assess their child for an education, health and care plan (EHCP) if they feel they need more support than is available through special educational needs support.
These plans identify educational, health and social needs and set out the additional support to meet those needs.
However, if a local authority decides not to carry out an assessment, not to create an EHCP, or if there is disagreement about the special educational support in the plan, this can be challenged and appealed to the SEND tribunal.
Anoushka Kenley, head of advocacy at Pro Bono Economics, said children and young people are being “forced to go without essential support while these disputes rumble on”.
She added: “The entire process is in need of a rethink, 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.”
Stephen Kingdom, campaign manager at the Disabled Children’s Partnership, said parents and carers are being pitted against “highly-paid barristers paid for by local authorities from money that comes out of the public purse”, with the lengthy cases being lost by local authorities “because parents know what is best for their children”.
He said: “We are calling for more information, advice for parents and young people; for better training for local council staff so they make the right, lawful decisions first time; and, crucially, stronger accountability.
Councils: ‘Significant’ funding challenges
The LGA said councils “fully recognise the right of families to take appeals to tribunals”.
They added: “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 LGA said the Department for Education’s SEND reforms needed to go further.
It added: “Alongside scrapping high needs deficits [for councils], 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.”
A DfE spokesperson said: “The vast majority of EHCP needs assessments and plans are concluded without the need to resort to tribunal hearings, but we know that the system needs to work better for parents.
“That’s why we have set out ambitious reforms to the SEND and alternative provision system, including plans to strengthen mediation between parents and local authorities before cases go to tribunal.”
