Councils in England ‘wasting millions’ on special educational needs legal disputes

Councils in England have been accused of “wasting” millions of pounds in court disputes with parents and carers over disability and educational support for their children.

A total of 11,052 tribunals involving special educational needs and disabilities (Send) were registered in the year 2021-22, according to a new report, which said 96% were won by parents, carers and young people.

The legal challenges cost some £59.8 million – the majority of which had to be paid by local authorities, the Pro Bono Economics report said.

Parents can ask their local authority to assess their child for an education, health and care (EHC) plan 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 EHC plan, or if there is disagreement about the special educational support in the plan, this can be challenged and appealed to the Special Educational Needs and Disability (Send) Tribunal.

Pro Bono Economics said there was a “deeply worrying” rise in the number of legal challenges to council decisions about how to support children with additional needs – which they said increased by 29% on the previous year – while the Local Government Association (LGA), which represents councils, said the jump “is indicative of a system that is not working”.

In March, the Government published its long-awaited improvement plan including the announcement that thousands more specialist school places will be provided, staff training will be expanded and £30 million will go towards developing innovative approaches for short breaks for children, young people and their families, providing respite for families of children with complex needs.

The LGA said while Government reforms to Send “will fix some problems with the current system”, they need to go further “in addressing the fundamental cost and demand issues that result in councils struggling to meet the needs of children with Send”.

The report claimed 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.

Anoushka Kenley (pictured), 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 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.”

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.

“We hear time and again from parents about the fight they have to go through to get the support their children need. This report shows how much public money is being wasted in those battles – money that could instead be providing the education and therapies children need.”

The Local Government Association 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 (EHC) plans – 66,400 – which shows the significant challenges that councils continue to face managing the rise in demand for support.

“The Government’s Send reforms will fix some problems with the current system, but we will work with them because we want them to go further in addressing the fundamental cost and demand issues that result in councils struggling to meet the needs of children with Send.

“Alongside scrapping high needs deficits, 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.”

The system for supporting children with Send is “too often skewed so it is based upon the resources available rather than pupils’ needs”, according to the school leaders’ union NAHT, which said councils “simply do not have the resources to meet the growing demand they are facing”.

Paul Whiteman, the organisation’s general secretary, said the Government’s new Send plan “contained some sensible ideas” but needs to be backed up with “significant new investment” in the system.

A Department for Education spokesperson said: “The vast majority of education health and care 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.

“We are also creating consistent, high-quality national standards, and strengthening accountability across the system so that children and young people with Send get the support they need.”

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