Councils waste £60m on tribunals over SEND children, report shows
Councils blew £60m in a year on unsuccessful court disputes with parents and carers seeking support for children and young people with special educational needs and disabilities (SEND), according to new research.
A new report by Pro Bono Economics (PBE), commissioned by the Disabled Children’s Partnership (DCP), reveals that more than 11,000 SEND tribunals were registered in England in 2021-22, an increase of 29% on the previous year.
These tribunals were brought by parents, carers and young people disputing council decisions about an education, health and care plan (EHCP) for a child or young person, a legal document issued by a local authority which identifies a child’s educational, health and social needs and sets out the support that must be provided to meet those needs.
PBE’s research found that councils in England lost 96% of SEND tribunal hearings in 2021-22 at a cost of nearly £60m to the public purse. This expense – split between local authorities and the courts system – is enough to fund just under 10,000 places in special educational needs (SEN) units within mainstream schools each year, according to the study.
But the costs to cash-strapped councils are just the tip of the iceberg. The current system is also putting a significant strain on children and young people with SEND, as well as their parents and carers, while they battle for support.
PBE said the wait for support can lead to problems for children and young people such as developmental delay, deteriorating mental and physical health and poor academic performance. Meanwhile, families can incur significant financial costs from taking disputes to tribunal and, for some, the process is so time-consuming it impacts their ability to work.
DCP has made a number of recommendations aimed at improving the EHCP process, including a call for government to ringfence resources for early information, advice and support for young people and parents navigating the system.
Among its key findings, the PBE report found that:
- 11,052 SEND tribunals were registered in England in 2021-22, up 29% on the previous year – meaning one SEND tribunal was registered for every six new EHCPs that were issued
- 96% of SEND tribunal hearings were won by parents, carers and young people in 2021-22
- £59.8m of public money was wasted on lost SEND tribunals in 2021/22 – costs of £46.2m to local authorities and £13.6m to the courts
- 9,960 places in SEN units in mainstream schools could be funded each year with the money wasted on lost SEND tribunals
- Nearly 3,500 disputed EHCP cases were withdrawn or conceded before they got to tribunal hearing in 2021/22. If public sector staff spend as much time preparing for appeals that are registered but not heard, PBE estimates that total public sector spending on SEND tribunals in 2021/22 could be as high as £80m
The number of children and young people with EHCPs has surged in recent years, with more than twice as many new EHCPs issued in 2022 than in 2015, when they were introduced.
As the number of EHCPs has increased, local authority decisions on them are taking longer. In 2022, for the first time, fewer than half of all EHCPs were issued within the statutory minimum of 20 weeks. But, as PBE’s new study shows, the extra time taken by councils is not leading to better decisions – with one SEND tribunal registered for every six new EHCPs that were issued in 2021/22.
These growing disagreements about EHCP decisions are the result of a combination of growing applications for EHCPs, local authority staff struggling to meet this need while managing tight SEN budgets, and an erosion of trust between people seeking support and local authority staff.
The £60m cost of lost tribunals in 2021/22 is especially significant for many local authorities that are already under serious financial pressure, including an estimated £600m annual SEND funding gap.
Anoushka Kenley, head of advocacy at Pro Bono Economics, said: ‘The growing number of legal challenges to council decisions about how to support children with additional needs is deeply worrying. Children and young people in need of support are having to go without it, parents and carers are being forced to give up time and money on tribunals, and cash-strapped councils are wasting millions on unsuccessful disputes.
‘The entire process is in need of a re-think, 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.’
DCP campaign manager Stephen Kingdom said: ‘It is deeply against the British sense of fair play to pit parents and carers of disabled children against highly-paid barristers paid for by local authorities from money that comes out of the public purse.
‘It is particularly unfair when you understand that these tribunal cases, that can take years, are lost by local authorities in the vast majority of cases because parents know what is best for their children.
‘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.’
Image: Gary Chan
Government announces new special free schools in response to SEND crisis