Whether it be sessions with a physiotherapist, or community support with play and friendship, access to special teaching units in mainstream schools or a nurse trained to assist with eating during the school day, children and young people with special educational needs and disabilities (SEND) have a right to additional support to survive and thrive.

However, the system in place to provide this support is under increasing pressure. The number of education, health and care plans (EHCPs) - which consolidate a young person's education, health and social care support into a single legal document issued by local authorities in England - have surged, with more than twice as many new EHCPs issued in 2022, compared to 2015. This growth reflects both the increased awareness and understanding of special educational needs (SEN), and a growing number of parents and carers recognising that they require an EHCP in place for their child’s needs to be adequately met.

As these numbers have accelerated, decisions are taking longer. In 2022, for the first time, fewer than half of all EHCPs were issued within the statutory minimum of 20 weeks.

And though decisions are taking longer, the extra time is not leading to better decisions. Indeed, parents, carers and young people are finding themselves in such serious disagreements with local authorities over their EHCPs that a record number of cases are being taken to tribunal. In 2021-22, over 11,000 SEND tribunal appeals were registered in England, marking a 29% increase from the previous year, and meaning one SEND tribunal was registered for every six new EHCPs that were issued. The tribunal process is the vehicle that enables the voice of families to be heard and these tribunals are almost universally ruled in favour of the parent, carer or young person challenging the local authority's decisions, with 96% going their way.

As a result, in 2021-22, the public sector wasted nearly £60 million losing EHCP tribunal disputes – costs of over £46 million to local authorities and over £13.5 million to the courts. That money could have funded up to 9,960 additional SEN unit places, for children with SEN taught in separate classes for at least half their time within mainstream schools.

These direct costs to the public purse are, however, just the tip of the iceberg. Nearly 3,500 disputed EHCP cases were withdrawn or conceded in 2021-22. If public sector staff spent as much time preparing for appeals that are registered but not heard as they do preparing for tribunals that go to hearings, Pro Bono Economics (PBE) estimates that total public sector spend on SEND tribunals could be as high as £80 million.

This is a significant cost for many local authorities that are already under serious financial pressure, including an estimated £600 million annual SEND funding gap.

There are also likely to be both short- and long-term costs that accrue while children and young people with SEND are waiting for suitable support, and because of the stress which builds while battling for that support. From additional treatment and equipment needs, to developmental delays, and from dropped academic grades, to additional use of the foster care system, the costs to the taxpayer and the negative outcomes for children, young people and their families can rapidly accumulate.

This is on top of the significant financial costs – often thousands of pounds - many families incur from taking disputes to tribunal. And with families reporting hundreds of hours spent preparing for tribunals, it is likely that the toll of SEND tribunals affects parents’ ability to work during this time – therefore further impacting the public purse and family incomes. While there are many complex factors contributing to their employment and earnings status beyond tribunals, it is notable that, for example, 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.

Meanwhile, over the past decade, employment of disabled people has increased significantly, benefiting both the economy and individuals in terms of income and wellbeing. But disabled individuals are still underrepresented in the workforce and face lower average earnings than non-disabled workers. Supporting young people with SEND to achieve their potential can bridge this gap, by enhancing their employment prospects and chances of living independently as adults, increasing their long-term contribution to the economy, personal income and wellbeing, while reducing public spending.

The problems surrounding EHCPs are not straightforward to solve – but the trends show that they are longstanding and worsening, and therefore well overdue for intervention. A wide range of pressures are calling on public sector budgets. Yet by wasting nearly £60 million on lost tribunals, the government is gaining little by forcing parents, carers and young people down this painful and costly route. Instead, investing that resource into making the EHCP system work more effectively, ensuring more young people are supported to achieve their full potential, and more parents of disabled children able to participate in the workforce, will yield valuable, long-term economic benefits.

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