William Eichler 11 March 2022

Council chiefs call for reform of ‘adversarial’ SEND system

Council chiefs call for reform of ‘adversarial’ SEND system  image
Image: Ermolaev Alexander/Shutterstock.com.

Local authority leaders have called on the Government to tackle the rise in tribunals over SEND disagreements as they warn the whole system has become ‘increasingly adversarial’.

A new study by the Local Government Association (LGA) has revealed that reforms in 2014 aimed at improving the lives of children with special educational needs and disabilities (SEND) has led to a dramatic rise in the use of tribunals to settle disputes.

According to Agreeing to disagree? Research into arrangements for avoiding disagreements and resolving disputes in the SEND system in England, the number of appeals to tribunals over SEND disagreements has more than doubled since the reforms, rising by 111% between 2013/14 and 2020/21.

The LGA’s research also found that over nine in 10 appeals are decided in favour of families, overturning the original decision made by councils. Prior to the reforms, 83% of tribunal appeals were made in favour of the appellant.

Before the reforms in 2013/14, more disagreements were resolved before they got to a formal tribunal hearing with around a fifth of appeals (21%) decided at a tribunal, whereas now the figure is almost two thirds (64%). The proportion of decisions appealed has also gone up from 1.16% at the time of the reforms to 1.74% in 2020.

The LGA found that the main factor behind the rise in the number and rate of appeals was not councils failing to meet their legal duties under the Act, but instead was reflective of more fundamental problems that need to be addressed in the Government’s upcoming SEND review.

As the report states: ‘any system in which the proportion of complaints and disputes decided in one direction or another approaches 90% is a system that is fundamentally imbalanced and where something very significant is not working as it should.’

Cllr Anntoinette Bramble, chair of the LGA’s children and young people board, said: ‘It is vital the Government’s SEND review urgently tackles the increasingly adversarial nature of the SEND system since the 2014 reforms and minimises the need for legal disputes and tribunal hearings, providing the support that every young person and their family needs.

‘Parents rightly expect and aspire to see that their child has the best possible education and receives the best possible support, and councils do everything they can to achieve this, within the budgets made available by the Government.

‘However, the soaring number of tribunal hearings over the SEND support provided to a young person, and the overwhelming number decided in the appellant’s favour, is indicative of a system that is not working.

‘The SEND reforms introduced in 2014, while of the very best intentions, have unfortunately not delivered. The factors that are driving these trends are symptomatic of challenges within the wider SEND system. This must be addressed in the forthcoming SEND review.’

The LGA is calling for greater clarity around the level of need that would require SEND support; making mainstream education settings more accountable for SEND inclusion; and enabling decisions over SEND provision to be made jointly by all those responsible, such as health and care bodies, and not just councils.

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