26 September 2023

A new piece of research commissioned by the Disabled Children’s Partnership and published this week looks at the costs to the public purse, and to families themselves, of appeals to the SEND Tribunal. It rightly concludes that: “Instead of fighting parents, carers and young people in tribunals, the Government should look for opportunities to invest the £60 million that it wastes in lost SEND Tribunal cases into providing the support a growing number of young people and their families so desperately need”. 

The rising number of Tribunal appeals and the overwhelmingly high “success” rate for families is seen as evidence of how prevalent “disagreement” is between parents/carers and local authorities. And of course they do disagree. But what needs to be emphasised is the failure of local authorities to follow the law that gives children and young people the right to special educational provision and support that meets their individual needs. 

This isn’t a difference of opinion we’re talking about, a weighing up of pros and cons. It’s worth reiterating the purpose of the SEND Tribunal. The Tribunal hears appeals against local authority decisions about the special educational needs of children and young people and the support they require, plus claims of disability discrimination against schools. It applies the law in order to reach a decision – in contrast, in our experience, with the approach taken by the local authority when making the decision that’s being appealed. 

The Tribunal’s one and only purpose is to apply SEND law, not to play referee in local disagreements or decide which side has smoother-talking lawyers or a better back-story. The reason families routinely succeed in their appeals is because local authorities routinely make unlawful decisions. This can’t be stated strongly enough. If the correct legal test has not been applied, the Tribunal will rule against the local authority concerned. 

What the Tribunal is emphatically not about is finding compromises that satisfy both sides. It isn’t a marriage guidance counsellor. The problem isn’t about a failure to reach agreement but more often than not a failure of one side – the side with all the power – to identify a child or young person’s needs and establish how to meet these in accordance with the law. 

It isn’t quite correct to say, as the researchers do, that the SEND Tribunal is a “vehicle that enables the voice of families to be heard”. It’s less about hearing voices than upholding rights. In our experience, parents don’t pursue appeals or complaints unless there’s absolutely no alternative. If they had no grounds for appeal, their appeals would not succeed. 

At the heart of any SEND dispute is a child or young person, often with significant needs, who’s not getting the provision and support they need to enable them to properly access education, remain healthy and make the most of their lives. The main reason these children and young people are failed is because the law is systematically disregarded, with no real consequences for anyone other than children and young people themselves. 

The key to resolving the SEND crisis lies in creating a culture in which lawful decisions are taken first time. This would be the best possible outcome for the public purse and for children and young people and their families.


About the author

Catriona is responsible for IPSEA’s work in bringing about change by influencing the development of SEND policy nationally. Her background is in public policy and communications, and she has worked for a number of charities and public sector organisations, as well as in Parliament. In the past she has served as an elected councillor in a London borough, a special school governor and a charity trustee. Alongside her work, Catriona cares and advocates for her teenage daughter, who has complex needs. When there’s any spare time, she loves walking all over London and hiding in bookshops.

Explore more of our latest policy blogs here