After almost a decade of funding cuts to local authorities, media and parliamentary attention has turned to what has been described by MPs as a "crisis in special needs care". Department for Education figures published in July showed that more than 1.3 million school-aged children had special educational needs and, while funding for children with the most complex needs has increased from £5bn in 2013 to over £6bn this year, the minister for children Nadhim Zahawi has acknowledged the huge "cost pressures on high-needs budgets" for local authorities.
To secure help, a child can be assessed and provided with an education, health and care plan (EHC) plan, outlining the support and resources they require. Where the decision is taken not to assess a child, issue them with a plan, or to alter or extend an existing plan, families are turning to the tribunal to ensure they get the support the child needs.
The First-tier Tribunal (Special Educational Needs and Disability) (the "SEND Tribunal") is the court which decides appeals made against local authority decisions regarding children or young people with special educational needs and claims of disability discrimination by a school against a child.
An individual can appeal to the SEND Tribunal if they are unhappy with a decision made in relation to an EHC needs assessment or an EHC plan. The SEND Tribunal has the power to order local authorities to carry out EHC needs assessments, issue EHC plans and amend existing EHC plans. Local authorities must comply with orders made by the SEND Tribunal.
The SEND Tribunal is governed by the law, and has to follow the interpretation of that law by higher courts in judgments about previous SEN disputes. It must also have regard to the SEN and Disability Code of Practice when coming to its decisions. It examines the evidence put before it and decides whether the local authority's decision followed the law and the code.
The number of registered tribunal appeals continues to rise each year. Families registered 6,374 appeals with the SEND Tribunal in 2018/19 - a 26 per cent increase on the previous year and nearly double the figure for 2015/16. There is a very low SEND Tribunal appeal rate - just 1.6 per cent of appealable decisions are appealed, the same rate as in 2014. However, it could be argued that this does not actually tell us much about the quality of local authority SEND decision-making because of the time, energy, emotional and financial resource required to take forward an appeal to the tribunal. Of the cases that are taken to the tribunal, 89 per cent are successful.
Parents might also withdraw their appeal because, for example, the local authority offers a solution or the local authority might back down and concede and not contest the appeal. Further barriers to challenging SEND decision making include access to legal advice and delays.
Legal aid is available in SEN cases if an individual wants to appeal to the SEN Tribunal. That funding will cover a solicitor helping to prepare a legal challenge and seek independent expert advice, but not representation at the tribunal. Legal aid does not cover representation or expert attendance at a SEN hearing unless very exceptional circumstances apply. There is little guidance on this. SEN appeals are extremely complex because each child is different, and local authorities often have multiple witnesses and experts in attendance. This expert testimony is difficult for parents to challenge, and already stretched families are often faced with serious inequalities of arms.
Government guidance states that "from start to finish, the process of making an appeal can take up to five months depending on the type of case. Usually, there will only be one hearing where you need to attend the tribunal". However, for the second year in a row, roughly three in every four SEND Tribunal hearings have ended up being postponed at least once, because the tribunal system does not have enough panel members to handle the number of appeals that get to hearing.
Some 77 per cent of its listed hearings were postponed in 2018/19 and the number of SEND postponements has continued to increase year on year, from 624 in 2013/14 to 2,900 in 2018/19. The tribunal is trying to address this problem by recruiting more fee-paid judges.
POINTS FOR PRACTICE
- If an individual is unhappy about the way their case was handled by the tribunal (for example, if the case was postponed) they can make a formal complaint to the HM Courts and Tribunals Service. It is important to note that this is a way to complain about the administrative handling of the case, not the judge's decision.
- Currently, legal aid for SEN cases can only be accessed via the Civil Legal Advice Helpline. However, from September 2019, all potentially eligible clients seeking help in education or discrimination will be able to choose to receive either remote advice or face-to-face advice.