• PBE study shows 11,000 tribunals lodged in 2021-22, up 29% on 2020-21
• Councils lost 96% of tribunals that progressed to a hearing
• Lost tribunals cost taxpayer £60mn, split between councils and courts
• Wasted money could fund nearly 10,000 places in SEN units in schools
• Current EHCP process can impact development of children and young people and put financial strain on families

Councils wasted £60 million in a year on unsuccessful court disputes with parents and carers seeking support for children and young people with special educational needs and disabilities (SEND), according to new research.

A new report by Pro Bono Economics, commissioned by the Disabled Children’s Partnership, reveals that more than 11,000 SEND tribunals - contesting decisions by local authorities - were registered in England in 2021-22, an increase of 29% on the previous year.

These tribunals were brought by parents, carers and young people disputing council decisions about an education, health and care plan (EHCP) for a child or young person, a legal document issued by a local authority which identifies a child’s educational, health and social needs and sets out the support that will be provided to meet those needs.

PBE’s research found that local authorities in England lost 96% of SEND tribunal hearings in 2021-22, at a cost of nearly £60mn to the public purse. This expense – split between local authorities and the courts system – is enough to fund just under 10,000 places in special educational needs (SEN) units within mainstream schools each year, according to the study.

But the financial costs to cash-strapped councils are just the tip of the iceberg. The current system is also putting a significant strain on children and young people with special educational needs and disabilities, as well as their parents and carers, while they battle for support.

For children and young people, the wait for support can lead to problems such as developmental delay, deteriorating mental and physical health, and poor academic performance. Meanwhile, families can incur significant financial costs from taking disputes to tribunal and, for some, the process is so time-consuming it impacts their ability to work.

The Disabled Children’s Partnership, a coalition of over 110 organisations that campaign for improved health and social care for disabled children, young people and their families, has made a number of recommendations aimed at improving the EHCP process, including a call for government to ringfence resources for early information, advice and support for young people and parents navigating the system.

Among its key findings, the PBE report, titled Wasting money, wasting potential: The cost of SEND tribunals, found that

• 11,052 SEND tribunals were registered in England in 2021-22, up 29% on the previous year - meaning one SEND tribunal was registered for every six new EHCPs that were issued.
  
  
• 96% of SEND tribunal hearings were won by parents, carers and young people in 2021-22.
  
  
• £59.8mn of public money was wasted on lost SEND tribunals in 2021-22 - costs of £46.2mn to local authorities and £13.6mn to the courts.
  
  
• 9,960 places in SEN units in mainstream schools could be funded each year with the money wasted on lost SEND tribunals.
  
  
• Nearly 3,500 disputed EHCP cases were withdrawn or conceded before they got to tribunal hearing in 2021-22. If public sector staff spend as much time preparing for appeals that are registered but not heard, PBE estimates that total public sector spending on SEND tribunals in 2021-22 could be as high as £80mn.

As of January this year, there were more than half a million children and young people in England with EHCPs. The number has surged in recent years, with more than twice as many new EHCPs issued in 2022 than in 2015, when they were introduced. This reflects increased awareness and understanding of SEN, as well as a growing number of parents and carers recognising that they need an EHCP in place for their child’s needs to be adequately met.

As the number of EHCPs has increased, local authority decisions on them are taking longer. In 2022, for the first time, fewer than half of all EHCPs were issued within the statutory minimum of 20 weeks. But, as PBE’s new study shows, the extra time taken by councils is not leading to better decisions – with one SEND tribunal registered for every six new EHCPs that were issued in 2021-22.

These growing disagreements about EHCP decisions are the result of a combination of growing applications for EHCPs, local authority staff struggling to meet this need while managing tight SEN budgets, and an erosion of trust between people seeking support and local authority staff.

Disagreements can arise at any stage of the EHCP process and can occur for a variety of reasons, from a decision by a local authority not to assess for an EHCP, to a decision not to issue one after an assessment has been made, or because a parent/carer or young person disagrees with the content of a draft EHCP.

The £60mn cost of lost tribunals in 2021-22 is especially significant for many local authorities that are already under serious financial pressure, including an estimated £600mn annual SEND funding gap.

SEND tribunals can also place a considerable toll on parents, carers and young people. Many families with the means incur costs running into the thousands of pounds taking disputes to tribunal.

With families reporting hundreds of hours spent preparing for tribunals, it is likely that SEND tribunals affect many parents’ ability to work during this time, further impacting the public purse and family incomes.

It is also worth noting that, while there are many complex factors contributing to their employment and earning status beyond tribunals, PBE research has found that fewer than half (45%) of single parents with disabled children are in work, compared with two-thirds (67%) of single parents with non-disabled children. Of those in work, couples with disabled children earn an average of £274 less each week than couples with non-disabled children. With this in mind, it is likely these families will be especially impacted by the strain of going through the SEND tribunal process.

Anoushka Kenley, Head of Advocacy at Pro Bono Economics, said:

“The growing number of legal challenges to council decisions about how to support children with additional needs is deeply worrying. Children and young people in need of support are having to go without it, parents and carers are being forced to give up time and money on tribunals, and cash-strapped councils are wasting millions on unsuccessful disputes.

“Our new research shows this waste extends beyond the £60 million of public money spent on lost tribunals in 2021-22, to wasted potential in the children and young people forced to go without essential support while these disputes rumble on.

“The entire process is in need of a re-think, to keep children and their families from the stress and pain of going without the support they so desperately need. Getting it right would not only give these young people the best possible start in life, it would also benefit the economy as a whole.”

Stephen Kingdom, Campaign Manager at the Disabled Children’s Partnership, said:

"It is deeply against the British sense of fair play to pit parents and carers of disabled children against highly-paid barristers paid for by local authorities from money that comes out of the public purse.

“It is particularly unfair when you understand that these tribunal cases, that can take years, are lost by local authorities in the vast majority of cases because parents know what is best for their children.

“We are calling for more information, advice for parents and young people; for better training for local council staff so they make the right, lawful decisions first time; and, crucially, stronger accountability.

“We hear time and again from parents about the fight they have to go through to get the support their children need. This report shows how much public money is being wasted in those battles – money that could instead be providing the education and therapies children need.”

Read the full report