Controversy was sparked earlier this month when the official magazine of the Law Society, The Gazette reported that “SEND tribunal judges have been told their services will not be needed in future”.
The DfE responded immediately, saying: “We do not recognise these claims and are clear that there are no plans to abolish SEND tribunals”. This led to speculation that the rumour had been deliberately floated by government to ‘test’ the public’s reaction.
This is not the first time the tribunal has come under fire. In July 2024, the County Councils Network and Local Government Association commissioned a report by ISOS Partnership to explore fundamental reforms of the SEND system.
The report proposed several solutions, including replacing the tribunal with a non-judicial dispute mechanism. This was equally met with alarm by parent groups and legal experts.
The tribunal, despite being in very high demand and under pressure, does its job well. It doesn’t always get decisions right. That’s why we have the Upper Tribunal where decisions that are unlawful can be challenged. But for the most part, it applies the law, weighs expert evidence and makes decisions centred on what the child or young person reasonably requires.
In my experience, and for context I have acted for parents, carers and young people in SEND appeals for close to 15 years, I can say with confidence that judges are also mindful of public cost. They have to be. Legislation requires it and it is reinforced by case law.
By and large, most legal experts agree that the appeals process works. While there is certainly room for improvement, taking it away would be a fundamental mistake. Parents will turn to more complex judicial review proceedings or flood local authority complaints systems, which helps no one.
That said, the SEND tribunal is facing record numbers of appeals. In 2023/24, 21,000 were registered, a 55-per cent increase on the previous year. The backlog of cases now means that if you lodge an appeal today, you could be waiting a year or more for a hearing.
Greater accountability for LAs is a must
During this time, children with significant needs may go without essential support, be placed in inappropriate settings, or worse, be without a school placement at all.
This rise in appeals reflects deeper issues in how local authorities (LAs) assess and make decisions about SEND.
The majority of appeals that proceed to a hearing are decided in favour of the appellant, yet there are limited consequences for LAs, as costs are rarely awarded in the SEND tribunal.
While mediation is promoted to reduce demand, it often fails in practice. On occasions, LAs either do not attend or send representatives without the authority to make binding decisions, leaving families frustrated and forced to continue to tribunal.
To reduce delays, targeted reform is essential. This includes increased resourcing and staffing, such as additional judges and specialist panel members. The former would facilitate the early evaluation and case management of appeals, helping to identify appeals with procedural issues sooner and encourage parties to resolve disputes.
But what would likely have the greatest impact would be greater accountability for LAs that repeatedly lose appeals where they have limited evidence to support their position. Indeed, this is an absolute must.
This could include financial penalties and mandated improvement plans. There might even be an argument for Ofsted and CQC to strengthen their joint SEND inspections by reviewing a LA’s rate of SEND tribunal losses as an indicator of systemic failure.
The DfE is currently working on a white paper to reform SEND. This process must neither overlook nor overstate challenges in the SEND appeals process.
Only time will tell whether these changes will truly ease the burden on families, making the system less adversarial and more accessible.
A DfE spokesperson recently tried to reassure stakeholders, saying that “any changes we make will improve support for children and parents, stop parents from having to fight for support, and protect provision currently in place”.
Limiting access to the tribunal or redirecting disputes to LA internal resolution mechanisms are unlikely to deliver this, and are certain to be poorly received.
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