18 June 2025 

The Department for Education (DfE) published its annual statistics last week on the number of children with special educational needs at schools in England, with details of the number of children who have an education, health and care (EHC) plan or receive SEN Support, the types of school they attend, and the types of special educational needs they have. This year the information also included figures on SEND Tribunal appeals. In summary: the numbers are all higher this year than last, and are rising steadily.

The Government also published a response to these statistics from the Secretary of State for Education, Bridget Phillipson MP, in which she acknowledged the fight that many families face to get support for their children, and said she is committed to reforming the SEND system. 

These comments from the minister were followed by a case study, presumably intended to reinforce the Government’s view that the system is broken and needs to be redesigned. But we found it astonishing for different reasons. 

The case study tells us about Gemma, the mother of a three-year-old child with Down syndrome, who has appealed twice to the SEND Tribunal to get the special educational provision her daughter needs. We sympathise hugely with her comments on the impact a Tribunal appeal has on families, which chime with our daily experience of advising and supporting families. 

However, what we have here is a catalogue of unlawfulness that shouldn’t be accepted and needs to be fixed – but not by removing EHC plans or the right to appeal. Our criticisms are in no way aimed at the parent quoted, but at DfE’s interpretation of her experience. Her experience is, sadly, one we hear all too often. Had the parent been supported by IPSEA, we would have advised her on the unlawful decisions made in her case, which we’ve outlined in more detail below.

Gemma’s story 

Gemma, aged 44 from Kent, appealed to the SEND tribunal after her local council did not specify direct speech and language therapy for her three-year-old daughter, E, who has Down Syndrome, despite the fact that she is pre-verbal and has a limited range of speech sounds. 

Gemma says this comes after the council refused to assess E until she appealed to the tribunal even though their previous council had been in the process of undergoing an assessment before the family were forced to move home. 

She has been granted an EHC plan, but it does not come into force until January 2027 at the earliest when E is aged five and in school. 

Gemma has to wait until March 2026 for the tribunal hearing to take place. 

She said: 

“As a mother, I want my child to have the best start to her life, but the tribunal hearing is not due to take place until another 10 months. This is precious time wasted. 

“We know that communication is fundamental and that early intervention is vital and every day without this support is an extra day where my daughter’s development and prospects are harmed. The EHCP misses a golden opportunity to support my daughter in making progress now and in the right way. 

“Being forced to appeal the decision isn’t only delaying support, it’s causing further harm by taking a toll on my entire family’s wellbeing because of how exhausting it is. It has been eaten up with paperwork, understanding SEN law, drafting emails to garner support, and desperately looking for advice from charities and parents. 

“This is time that would be better spent with my daughter, enjoying her early years, not fighting with my local authority because she has been left without the support she needs to thrive. 

“I am shocked at the lack of transparency, the disregard for SEN law and the delaying tactics employed. 

“It shouldn’t be this hard to get the sort of support that so many children with Down Syndrome are always going to need and should have at an earlier point as a guarantee. 

“This process does not work for the child, for the parents or for the local authorities which are wasting money by inevitably having to go to tribunal and even pay out compensation.”

“E has Down Syndrome, is pre-verbal and has a limited range of speech sounds. The council refused to assess E until she appealed to the tribunal.” 

No surprise whatsoever that a local authority’s decision not to assess a pre-verbal child with a diagnosis of Down syndrome is overturned by the SEND Tribunal. On what possible grounds could they argue that she definitely didn’t have special educational needs and definitely wouldn’t need special educational provision through an EHC plan, as per section 36(8) of the Children and Families Act 2014? 

This illogical decision is entirely on the local authority, not a failing of the legal framework, which couldn’t be clearer. If the local authority had agreed to carry out an EHC needs assessment when it was requested, there would have been no need for a trip to the Tribunal, which was never going to do anything other than uphold the parent’s appeal in this case. 

“She has been granted an EHCP, but it does not come into force until January 2027 at the earliest when E is aged five and in school.” 

This is inexplicable. There should be no such thing as a local authority issuing an EHC plan that only comes into effect two years after it’s been issued or a year after an appeal hearing. This isn’t legally possible: under the Children and Families Act 2014, EHC plans have immediate effect once they have been issued. Again, no need to change the law: just make sure that local authorities understand the law and follow it.  

“The tribunal hearing is not due to take place until another 10 months. This is precious time wasted.” 

The current delays in the SEND appeal process are utterly disheartening. However, the main thing they illustrate is the widespread failure of local authorities to provide support for individual children and young people until they are compelled by the Tribunal to do so. This situation won’t be improved by watering down local authorities’ legal responsibilities or removing accountability mechanisms.   

Let’s be absolutely clear: a child can have an EHC plan, and the special educational provision this sets out, before they start school. If a child requires health provision that “educates and trains”, then this is special educational provision. If the provision can't be secured without an EHC plan then the current legal framework is clear that this can and should be issued with immediate effect. 

“The EHCP misses a golden opportunity to support my daughter in making progress now and in the right way.” 

This is incorrect. Nothing about the current law should get in the way of a child receiving the support they need to make progress at the earliest possible stage. There is no aspect of the current system that precludes a local authority or NHS body putting provision such as speech and language therapy in place before a child’s EHC plan is finalised. 

In the past, it was quite usual for local areas to have portage and speech and language intervention programmes for young pre-school children. The fact that these programmes have declined has nothing to do with the existence or otherwise of EHC plans and much more to do with a lack of funding for early intervention and/or poor joint planning and commissioning between health bodies and local authorities. 

This shouldn’t happen under the Children and Families Act 2014 (see sections 25-29 about joint cooperation and commissioning), but of course it does because legal duties aren't directly enforceable and area SEND inspections seem unable to adequately pick up these failures. 

“This process does not work for the child, for the parents or for the local authorities which are wasting money by inevitably having to go to tribunal and even pay out compensation.” 

It can’t be stated strongly enough: there’s nothing inevitable about appeals to the SEND Tribunal, if local authorities do what the law requires. Parents are only forced to appeal because, way too often, this doesn’t happen. 

It’s also worth noting that the SEND Tribunal can’t require local authorities to pay out compensation, either in SEND appeals under the Children and Families Act 2014 or disability discrimination claims under the Equality Act 2010.  

Overcoming misconceptions

We have focused on this communication from DfE because it seems to illustrate the misconceptions that are driving a major change in the law that will potentially remove essential rights to educational support and routes of redress. 

There’s nothing about current SEND law that stands in the way of early intervention, therapies and support before a child reaches compulsory school age or that makes a Tribunal appeal inevitable. 

If politicians want to make sure that children like E in this case study receive the education they need to live the best possible lives, they will need to take a long hard look at why so many obstacles are put in children and young people’s way and fix those, rather than removing rights.

 

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. She has personal experience of having a disabled child. In her spare time, she enjoys walking, reading, going to the theatre and being by the sea.

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