Why appeals to the SEND Tribunal are increasing in number and complexity Ali Fiddy Chief Executive, IPSEA

About IPSEA National charity providing free and independent legally-based information, advice and support to help get the right education for children and young people with SEND Advice, information and support services Policy work Training

The numbers…

DfE statistics: numbers of children and young people with SEN   2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 Pupils on roll 8,167,715 8,121,955 8,092,280 8,098,360 8,123,865 8,178,200 8,249,810 8,331,385 8,438,145 8,559,540 8,669,080 8,735,100 Pupils with SEN 1,577,265 1,630,210 1,672,610 1,704,980 1,673,895 1,618,340 1,545,610 1,492,950 1,301,445 1,228,785 1,244,255 1,276,215 Incidence (%) 19.3 20.1 20.7 21.1 20.6 19.8 18.7 17.9 15.4 14.4 14.6 Pupils with Statement or EHC plan 232,760 227,315 225,400 223,945 224,210 226,125 229,390 232,190 236,165 236,805 242,185 253,680 2.8 2.9

Tribunal statistics: number of appeals   Registered with the Tribunal Decided by the Tribunal Decided in favour of the parent/young person (in whole or in part) Sept 2011 - Aug 2012 3557 823 564 Sept 2012 - Aug 2013 3602 808 682 Sept 2013 - Aug 2014 4063 797 660 Sept 2014 - Aug 2015 3147 788 680 Sept 2015 - Aug 2016 3712 883 780 Sept 2016 - Aug 2017 4725 1599 1418 Sept 2017 - Aug 2018 5679 2298 2035

Tribunal statistics: types of appeals   Refusal to assess Refusal to issue an EHC plan Refusal to amend EHC plan following AR Content of sections B and F Content of sections B, F and I Content of section F Content of sections F and I Content of section I or no placement named in section I Ceasing to maintain an EHC plan Sept 2014 - Aug 2015 603 97 1 53 238 18 7 137 Sept 2015 - Aug 2016 1185 321 6 265 762 77 75 486 Sept 2016 - Aug 2017 1494 371 49 366 1170 107 144 771 35 Sept 2017 - Aug 2018 1717 515 45 420 1 470 141 138 965 46

Inadequacy of SEN Support SEN Support (or equivalent) – support provided by mainstream schools and colleges from existing resource “Cycle of action” – SEND Code of Practice, paragraphs 6.45-6.56: Assess, Plan, Do, Review What is “good” SEN Support?

Non-compliance with the law Test for an EHC needs assessment The LA must assess where: the child or young person has or may have special educational needs, and it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan Many LAs are applying a higher bar

Non-compliance with the law Lack of specificity of provision Parents/carers have to challenge this via Tribunal L v Clarke & Somerset CC [1998] ELR 129: “…so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case. Very often specification of hours per week will no doubt be necessary and there will be a need for that to be done.”

Non-compliance with the law Unlawful transfers Many LAs didn’t: undertake EHC needs assessments seek advice and information Huge numbers of poor quality EHC plans – will likely need to be resolved by Tribunal

Complexity…

Education, “Health” and “Care” plans Children and Families Act 2014 recognises that you can’t see children and young people’s educational needs in isolation from their health and social care needs Makes appeals more complex

SEND Tribunal: single route of redress national trial Two year trial extending the powers of the Tribunal to make non-binding recommendations about the health and social care aspects of EHC plans Applies to all types of appeals except refusals to assess Appeal must be brought against an educational decision - health and/or social care issues can then be included in addition

SEND Tribunal: single route of redress national trial National Trial cases inevitably more complex Tribunal is having to use case management powers Cases require a level of strategic thinking Hearings being listed for 2 days

19-25 year olds Children and Families Act 2014 extended the age range to 25 Remains a lack of clarity about when this age group may require an EHC plan – a presumption from LAs that these young people don’t require EHC plans

Lack of a template for EHC plans No standardised format of an EHC plan 152 different varieties – 1 x per LA Lack of clarity Adds an unnecessary layer of complexity

Final thoughts… Statistics Inadequacy of SEN Support Non-compliance with the law EHC needs assessments Special educational provision Transfers from Statements to EHC plans National Trial 19-25 year olds EHC plan template

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