Parents win 98% of SEND tribunals as appeals pass 20,000 for first time

Parents and carers of children with special educational needs brought a record 20,100 appeals against councils to the special educational needs and disability tribunal in the year to March, and won or secured concessions in 98% of them, according to Ministry of Justice figures published on Monday.

Appeals have more than doubled since 2019. Most concern a council’s refusal to assess a child for an education, health and care plan, which sets out legally enforceable support, or the content and placement specified in a plan once issued. The average wait for a hearing is 36 weeks, during which children are frequently out of school or in a placement their parents say is unsuitable.

The County Councils Network estimated that local authorities spent £120m on legal costs and officer time defending appeals last year, almost all of it on cases they went on to lose. Councils’ accumulated deficits on high-needs spending have reached £5.2bn and are projected to exceed £8bn by 2028.

Rebecca Tolhurst, from Maidstone, won a tribunal in July after a 14-month wait to have her nine-year-old son, who is autistic, placed at a specialist school rather than the mainstream primary the council had named. “The council’s own educational psychologist said he needed a specialist place. The council ignored its own expert, named a school that said it could not meet his needs, and then paid a barrister to argue with me about it,” she said. “He missed a year of school. The judge took 20 minutes.”

Simon Ashby, a solicitor in Bristol who represents families, said the win rate reflected a system in which “councils refuse to save money and then lose to spend more”. “Any other litigant with a 2% success rate would have been told by their lawyers to stop. The councils cannot stop, because the alternative is to say yes at the start, and they do not have the money for that either,” he said.

Councils argue that they are caught between a legal duty to provide what a plan specifies and a budget that has not kept pace with a 70% rise in plans since 2016. One director of children’s services in the Midlands, who asked not to be named, said: “We are not fighting these because we think we will win. We are fighting them because every one we concede sets the price for the next hundred.”

The government has promised a white paper on special needs reform before the end of the year, which is expected to propose that more support is provided in mainstream schools without a plan, and that the tribunal’s remit is narrowed. Parent groups have warned that any dilution of the legal right to support will be “fought in the courts, and we have the better record”.

A Department for Education spokesperson said the system was “failing children and families and placing unsustainable pressure on councils” and that reform would “put the right support in place earlier, so that fewer families need to fight for it”.