Tribunal tests ‘one-touch’ to ease SEND backlog

Some SEND tribunal cases won’t get immediate provisional hearing dates in a pilot aimed at speeding up appeals.

The SEND tribunal hears appeals of town hall decisions about education, health and care plans (EHCPs), statutory documents specifying the support children with special needs require. 

These disputes can centre on the EHCP’s contents or a council’s refusal to assess a child for one. 

At present, appeals are given a provisional hearing date when they are lodged, regardless of their readiness to proceed. This can lead to waits of up to 18 months.

But during the trial of a “one-touch” case approach, which launched on 17 August, cases centred on decisions over the school placements listed in EHCPs – representing about a third of the total – won’t be given a hearing date automatically.  

They will instead be reviewed up to 16 weeks afterwards by a legal officer, registrar or judge.

This will allow “judicial office holders to assess readiness, identify issues requiring determination, direct appropriate evidence, and make informed decisions about the most suitable next steps in each individual case”, the tribunal said.

If a case is deemed ready, it will be issued with the next available hearing date, allowing it to be “heard sooner”. 

‘Significant reform’

Other kinds of appeals will continue under the old approach. It is not clear yet whether the “one-touch” system will be rolled out more widely if the pilot goes well.

The tribunal said “one-touch” case management represented “one of the most significant procedural reforms in recent years”.

“By introducing earlier judicial oversight and clearer case progression, the proposals are expected to reduce late changes to hearing lists, minimise unnecessary postponements, improve predictability for families and local authorities, and enable straightforward cases to be dealt with more efficiently. 

“At the same time, cases requiring urgent intervention or more intensive judicial involvement would continue to receive appropriate prioritisation and attention.”

But experts warn that such changes will have limited impact given the sheer number of challenges, saying that streamlining the process could have unintended consequences.

Matt Keer, of Special Needs Jungle, said: “The SEND tribunal’s doing what it can to streamline case administration, and that’s generally welcome. 

“But it’ll have only a minor impact, because [the tribunal] can’t do anything substantive about the core problem – the sheer number of dysfunctional SEND decisions that local authorities make, and the powerful financial incentives that LAs have to string indefensible appeals out for as long as possible.”

Data secured through freedom of information showed 79 per cent of cases were completed within 22 weeks in 2023, down from 91 per cent in 2018-19. 

Long wait

Polly Sweeney, a partner at law firm Rook Irwin Sweeney, said an appeal she lodged earlier this month has been listed for March 2028.

“What that means is at least 18 months of a child not receiving the support they require and not attending the right school placement.

“What I’m not clear on with the pilot is if at week 16, when they review your case, are they going to list you for 12 months’ time or are they keeping back some dates?”

Philip Wood, a partner at law firm Browne Jacobson, argued the pilot’s increased judicial oversight was likely to be “a good thing in ensuring… potential hearing dates are not wasted when one party isn’t ready to proceed”. 

“What will be key in these changes is ensuring that when a case is ready for a hearing, it can be listed promptly rather than adding further delay for everyone.”

But Sweeney said she was worried about the availability of experts if the hearings were listed at short notice, as they tended to be booked up far in advance.  

Mark Sutherland Williams, the tribunal president, said last month that demand continued to exceed capacity, which meant “something of a backlog”. 

25,000 appeals last year

Ministry of Justice figures show just over 25,000 appeals were lodged with the SEND tribunal in 2024-25, a 19 per cent rise on the year before (21,106). 

Almost one in three (7,836) were over school placements. 

Sutherland Williams said that any backlog was not “a symptom of inefficiency. It reflects a system where demand has grown significantly, where needs are increasingly complex, and where expectations are high on all sides.” 

A Local Government Association spokesperson said the increasing tribunal numbers were “symptomatic of a system that is failing for families, and councils too, who want to provide the very best for every child”.

“These show that reform of SEND services is urgent and essential.”

However, Madeleine Cassidy, the chief executive of Independent Provider of Special Education Advice, said families were successful in whole or in part in about 99 per cent of appeals that proceeded to tribunal. 

This demonstrated “the widespread failure of public bodies to make lawful decisions first time”.  

As part of widespread reforms to the SEND system unveiled earlier this year, the Department for Education proposed the legal duty to fulfil provision outlined in an EHCP be shifted on to schools, rather than local authorities.

No reduction in demand

It also pledged to improve the complaints and mediation processes, so disagreements were “resolved faster and more collaboratively, reducing the need for an appeal to the SEND tribunal”.

Sutherland Williams said there was “unlikely” to be any reduction in demand immediately.

“Many lawyers and seasoned professionals will recognise that periods of structural reform or new legislation can sometimes generate uncertainty and even increase litigation or appeal numbers as stakeholders perhaps try to get their appeals in before new legislation takes effect.

“I am not suggesting that will happen here, but as a tribunal we need to an extent to prepare for that possibility.”

He said it was “equally possible” that appeals might reduce over the medium term.

“But I think the cautious observer would regard it as a mistake to assume a simple downward trajectory. 

“It may be that we will see a re-composition of caseload and in the future a greater proportion of cases concerning what we sometimes refer to as threshold questions: whether statutory criteria are met, whether mainstream provision is sufficient, and whether specialist provision needs are engaged.”