Agreeing to disagree

Reforms and more funding are needed to address flaws in support for SEND children.

Ahead of the Government’s much-anticipated review of the support provided to children with special educational needs and disabilities (SEND), the LGA has commissioned research into the huge rise in legal disputes and tribunal hearings since the SEND reforms of 2014.

‘Agreeing to disagree? Research into arrangements for avoiding disagreements and resolving disputes in the SEND system in England’, by the Isos Partnership, has found that the aspirations of these reforms – to reduce the need for parents to have to fight to get support – have largely not been achieved.

Instead, they have resulted in a system that has become more adversarial, with a soaring level of cases that are not resolved without being taken to a tribunal.

The LGA says the findings of the report underline the need for this to be addressed in the Government’s imminent SEND review, so parents and carers avoid having to take cases to tribunal. This comes as figures in the report show that:

  • The number of appeals to tribunals over SEND disagreements has more than doubled since the reforms, rising by 111 per cent between 2013/14 and 2020/21.
  • More than nine in 10 appeals are decided in favour of families, overturning the original decision made by councils. Prior to the reforms, 83 per cent of tribunal appeals were made in favour of appellant.
  • Before the Children and Families Act 2014, more disagreements were resolved before they got to a formal hearing, with 21 per cent of appeals decided at a tribunal – whereas, now, the figure is 64 per cent.
  • The proportion of decisions appealed against has risen from 1.16 per cent to 1.74 per cent in 2020.

The research 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 was instead reflective of deeper, fundamental problems that need to be addressed within the SEND system.

To tackle these issues, the LGA has called for a series of measures to be introduced, which could include: providing 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.

While the Government recently announced much-needed funding for SEND support services, which will be vital to ensure support can be provided, this alone will not fix the underlying flaws within the system.

Councils want to ensure children with SEND get the very best support and we look forward to seeing how the proposals set out in the Government’s forthcoming SEND Green Paper will help achieve that ambition.

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