Tribunal reports on 20 years of appeals

The Ministry of Justice has issued a report about the activity of the Special Educational Needs and Disability Tribunal. The report itself can be found here (third in the list).

The report covers the period 1 September 1994 until 31 August 2014. During that time there have been three changes in special educational needs legislation and countless changes in regulations, guidance and other supporting materials.

Types of appeals

There has been a steady yearly increase in appeals being made from 1,161 in 1994 to 4,069 in 2014.

Parents can appeal about a variety of issues. This means that there are 11 different types of appeal that could be made ranging from whether an assessment is complete to being unhappy with the entire content of the Statement, or anything in between. The most common form of appeals, by a significant margin, is about a refusal to assess (1,634).

Children with Autism are the subject of the most appeals and this has seen the most significant increase. Appeals about children with Autism have increased five-fold since 1998. They now represent nearly half of all appeals. The second place goes to Behaviour, Emotional and Social Difficulty which has increased threefold. In 2014, 85% of appeals concerning children with Autism were found in favour of parents. This does not include those cases where local authorities concede to the appeal before the hearing.

The dramatic increase in the number of children with Autism being the focus of appeals is not matched by any other special educational need.

Worst offenders

The report sets out the number of appeals registered against the 142 councils in England.

In terms of regions, the most number of appeals were brought against local authorities in the South East, totalling 975 appeals. The South East is the second most populated area after London (which faced the second highest number of appeals).

In terms of the number of appeals, Kent faced the most appeals (295) followed by Surrey (200) and Hampshire (163). The average number of appeals per council was 28, meaning these councils are significantly above average. They are also all above average for population, but not nearly by the same margin as the number of appeals they faced.

The report also factors in population density to establish which councils were more likely to face an appeal. This is probably the most important figure when working out ‘worst offenders’. The highest here were Sutton (14.5 appeals per 10,000 pupils), Lewisham (13 appeals per 10,000 pupils) and Medway (12.7 per 10,000 pupils). The average per council was 4.8.

Appeal outcomes

The report only goes back to 2010 in terms of the success rates of appeals. Since that time there has been a steady and significant increase in success rates. In 2010-2011, the overall success rate was only 10%. The most recent success rate is 83%.

The most recent figures suggest that Autism is above average for success rate at 85%. The highest success rate is in respect of Profound and Multiple Learning Difficulties which saw a 100% success rate for parents (6 cases). This is a reverse of a 100% loss rate, for parents, in 2010 (17 cases).

Success rates should be read with some caution, however. The reported ‘successes’ do not mean that the Tribunal has completely agreed with the parents. It simply means that the parents have had some of their requested changes approved by the Tribunal.

Conclusions

There are two very clear conclusions:

1. Autism is, by far, the most common issue in an appeal and is rapidly increasing; and
2. The success rate of appeals has increased dramatically in the last four years.

There is no way to establish why either of these trends is developing. The answer to both may well be understanding, awareness and proactivity of parents.

Representation may also be having an impact on success. In 2010 only 4% of parents were represented at final hearing. The Tribunal stopped recorded levels or representation in 2010 so there is no comparable figure. However, from my experience, it seems that far more than 1 in 25 parents have some form of representation now.

It is almost certain that the number of appeals will continue to increase. The Children and Families Act 2014 is relatively new and local authorities are struggling with it. The Department for Education (DfE) has had to tell local authorities to slow down on transition and focus on quality, the Local Government Ombudsman has been moved to issue new guidance, an independent report has concluded that the new regime of Personal Budgets is in disarray and the DfE has issued more detailed guidance for local authorities about the new system.

From the report, appeals are ever more successful, despite a significant increase in the number of appeals being filed. The combination of the significant increase in both number of appeals and success rates suggests a general decline in decision making by local authorities.

Generally, the news is that if parents are unhappy about the content of an EHCP or a Statement they should be prepared to appeal.