Parents are having to wait more than a year for tribunal hearings into inadequate provision for children with special educational needs after new cases surged by more than 50% in a year.
The National Audit Office last week highlighted the worsening crisis in the special educational needs and disabilities (Send) system, with cash-strapped councils unable to meet rising need amid a lack of suitable school and college places.
The Send tribunal deals with disputes in England between a local authority and parents or young people about provision for their education.
The number of new cases registered with the Send tribunal surged from 13,083 in the year to June 2023 to 20,102 in the year to June 2024. Before the pandemic, the figure was fewer than 7,000. When looking at all cases in the Send tribunal system, rather than just newly registered ones, there has been a 43% annual rise, to 32,069. Eight years ago, the figure was below 4,500.
The Observer has been contacted by parents who are waiting more than a year for a hearing because the service is overstretched.
In other cases, councils are conceding to parents’ demands just before a tribunal is held, while some local authorities are failing to implement tribunal findings.
Julie Cragg is trying to get her council to secure a non-mainstream school for her autistic six-year-old daughter, who has panic attacks at her current school and physically resists being made to attend. She has been given a tribunal date of December 2025.
“They haven’t got the capacity,” she told the Observer. “They are overwhelmed at the moment … And in the meantime, my daughter is suffering, and not just her. The children in her mainstream class are suffering too, because my daughter takes one or two members of staff every day away from the class setting.”
Parents have a near-100% success rate at Send tribunals. The Tribunal Procedure Committee, which makes rules on how senior tribunals work, implied in a consultation document last month that councils are dragging out tribunals to save money by not meeting the needs of Send children.
“The local authority is able to delay any final outcome which might involve the use of their resources to comply with the statutory deadline to complete the EHC (education, health and care) needs assessment,” it said.
Gillian Doherty, co-director of the website Special Needs Jungle, said: “Delays in accessing tribunals are causing significant disadvantage to disabled children and young people who are often unable to access suitable education and provision in the meantime, with no route of redress for missed provision.
“Local authorities must be adequately resourced and held accountable for making lawful decisions first time.”
Maria Bloom of IPSEA, a Send legal charity, said: “The rising number of appeals to the Send tribunal highlights the extent to which local authorities routinely and unlawfully deny children and young people with Send the special educational provision and support they are legally entitled to.
“We hear from families every day through our helplines who are having to fight to secure the education their children need and are entitled to by law. With 98% of tribunal appeals finding in favour of families, it’s clear that local authorities are repeatedly failing to meet their legal obligations.”
According to the thinktank Pro Bono Economics, Send tribunals cost the public sector nearly £90m a year. A Local Government Association spokesperson said: “The need for reform of Send services is now unavoidable. Councils are struggling to cope with a more than doubling of children on education, health and care plans within a system that creates ‘perverse incentives’ to shift responsibility between public bodies and inadvertently creates adversarial relationships between local authorities and parents.
“We find ourselves with a system weighted down by legal disputes through tribunals and an over-reliance on special schools due to a loss of parental confidence that mainstream schools can meet their children’s needs. We are calling for action which builds new capacity and creates inclusion in mainstream settings, supported by adequate and sustainable long-term funding, and the writing off of councils’ high-needs deficits.”
A Department for Education spokesperson said: “For too long, children and young people with Send have been let down by a system that is not working, but this government is determined to deliver change.
“Urgent work is already under way to ensure more children are getting earlier and better support to thrive in education through our curriculum and assessment review, Ofsted reforms, and new early years Send training.”
The Ministry of Justice said it has recruited 45 judges to sit on Send tribunals, with more to follow.
