Parents of vulnerable children are being forced to wait nearly a year to challenge refusals by councils to offer SEND support.
The special educational needs and disability tribunal (SENDIST) gives parents the right to appeal a council’s decisions on educational, health and care plans (EHCPs), such as refusals to issue one or disagreeing with its school provision.
When they do reach court, nine in ten of the cases are found in the favour of parents. But more appeals than ever are being lodged, with a growing backlog.
A freedom of information request from Schools Week now shows just 79 per cent of cases were completed within 22 weeks this year, down from 91 per cent in 2018-19.
This is still above the Ministry of Justice’s (MoJ) own target to complete 75 per cent of cases within the timeframe. But the department admitted an appeal registered this month would now not be listed for an in-person hearing until January next year.
‘Creaking’ tribunal system
Paper hearings – often used in cases where a council refuses to assess the child in the first place – are quicker and would be listed five months from now.
Matt Keer, a SEND specialist, said that the SEND tribunal system was “creaking … it’s taking longer than ever to process the highest-stakes appeals.
“Only local authorities benefit from the logjam. Pupils, parents and schools suffer.”
Ed Duff, a senior solicitor at Education Law Advice, said that when he started in 2007 the whole process would take about 16 weeks. Some of his cases were now listed for 12 months’ time.
“The impact depends on what [the child] is going through, but in the most extreme cases you could have kids sitting at home, self-harming for a year with no provision.
“They are not going to school so, by the time you do get to a hearing, the whole situation has become worse than six or seven months ago.”
A total of 11,052 disputes were registered last academic year – a 29 per cent rise from 8,579 the previous year.
The outstanding tribunal caseload has also soared to 5,554 by the end of September, up 44 per cent in a single year.
Duff said it was “primarily terrible local authority decisions” that were behind the rise.
Sir Keith Lindblom, the senior president of tribunals, said in a report last year that “regrettably” SENDIST cases had to be postponed in some cases “due to a lack of judicial resources”.
But 70 more judges, 120 more special panel members and 40 extra tribunal staff have been recruited.
However, the MoJ has prioritised cases that involve children moving phases, such as from primary to secondary school in September.
SEND review proposes change
David Barber, a former headteacher and tribunal panel member, said delays made it “very difficult for the school both in terms of the impact on staff time and resources”.
“If the SENCO feels that the child needs an EHCP, usually it’s because the school has reached the end of the road with support they are able to offer for this child in school.
“They may have used all of their resources and can see that month after month the child is falling further and further behind their peers.”
The government’s SEND review proposed controversial mandatory mediation for parents, making it “easier to resolve disputes earlier”. Tribunals would be used “for the most challenging cases”, the review said.
But experts worried the move could introduce “more bureaucracy and slow things down even more”. The government’s delayed SEND review response is due next week.
The Local Government Association said the appeals situation “is indicative of a system that is not working”, adding councils needed “long-term” funding.
The MoJ said it recognised that vulnerable children with SEND “must receive support quickly”.