Almost all SEND appeals against council decisions upheld, figures show

The research found that 96 per cent of all appeals made by families against council decisions around their child’s support are upheld.

Meanwhile, action by families against councils’ decisions over the last decade have tripled. Issues looked at include education, health and care plan (EHCP) assessment and placement decision making

Over the same period the number of successful appeals has increased by 28 per cent.

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The findings have emerged in research carried out by the Administrative Justice Council (AJC) into how council decision making around children in need of SEND support can be improved.

Among factors behind the high rate of success of appeals is confusion among councils around their statutory duty to carry out SEND assessments, the research found.

Another is a breakdown in talks between councils and families during mediation, which is required before an appeal can be made. This process is blighted by “inadequate problem solving and partnership working” and “problems with evidence gathering and communication”.

This stage is is also impacted by councils failing to learn “from mediation to improve decision making and avoid disputes arising in the first place”. In addition, councils too often “send people to mediation who do not have the necessary decision-making power”.

Ineffective complaint handling by councils is another concern raised, by local government and social care ombudsman Paul Najsarek, who is among experts to have contributed to the research.

He told researchers that complaints need to be dealt with effectively to prevent problems escalating and is calling for councils to learn from feedback from complaints. Around nine in ten of his SEND investigations are upheld and are now the largest area of his work.

“Local authorities have an opportunity to improve the outcomes for families of people with SEND by investing properly in good complaint handling,” said Najsarek.

“But our experience shows many councils are missing this invaluable free feedback.

“Effective complaint handling can help resolve issues earlier in the process and avoid protracted disagreements, and unfortunately this is something we regularly see in the investigations we uphold.”

Councils are being called on by the AJC to improve their evidence gathering and communication with parents, including ensuring caseworkers “have time to speak with families and young people and placement settings in advance of a decision being made”.

The AJC also wants to see young people’s views being “the golden thread throughout decision-making” by councils.

It adds that councils should “routinely reflect” on tribunal hearings and decisions.

Another recommendation made is for the Department for Education to commission research into barriers councils face in making SEND decisions and whether there is a link between appeal rates and areas of disadvantage.

A “collaborative” working group involving the DfE, Minister of Justice and the AJC should also be set up to develop a research agenda to improve council SEND decision making.