Councils spend £150m fighting SEND parents in court - despite losing 99% of cases
Councils in England and Wales are shelling out over £150m per year fighting parents seeking special needs support for their children - despite losing over 99% of cases.
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Send tribunals allow families to challenge a local authority’s decision on the contents of their child’s Education, Health and Care Plan (EHCP) and other issues, such as their school placement.
However, parents complain of being “gaslit” by councils throughout the process, as well as legal bills running into the tens of thousands of pounds and years-long delays in getting a hearing - during which their children are often out of school altogether.
One mother even told LBC she was hospitalised due to the stress of navigating the system.
Overall, 25,000 appeals were lodged by parents against their local authorities over special needs support.
Of these, 14,000 reached tribunal level, with parents unsuccessful in fewer than 150 cases.
LBC analysis, based on cost estimates from Pro Bono Economics, suggests that councils have spent more than £150m fighting the cases, the 6,000 appeals settled before reaching the courts and those awaiting a decision.
At a time of chronic shortages, this would be enough to fund over 26,000 Send places at schools across the country. The government is expected to outline reforms to the system in the Send White Paper, which is due in spring.
LBC spoke to Sharon, whose daughter suffered from a rare form of cancer as an infant. It left her with paralysis in the lower half of her body.
In 2023, with her daughter approaching primary school age, she requested an EHCP assessment for her daughter but, after having that rejected, was forced to take the council to court.
“Our legal fees have been in excess of £25,000,” an exasperated Sharon lamented.
“You don't get that back - you don't win a tribunal and [get] awarded your costs. That's lost.
“The amount of paperwork, correspondence and work we’ve put into this is akin to a PHD thesis. I open it and it makes me feel quite nauseous.”
Though Sharon was successful in getting an assessment for her daughter at tribunal, she is having to go through the process again, this time over the details of the plan put together by the local authority.
“The whole process was supposed to take 20 weeks - we’re now at 91… This has almost broken me. “I hate to use the Gen Z term, but I felt gaslit. I was looking at these people [the council] and thinking ‘how are you making these decisions?’... The psychological impact of that is enormous.”
Sharon’s struggles are far from isolated.
In February 2023, Michelle requested an assessment for her son, Blake, ahead of moving to secondary school later that year. Blake, who lives with a complex heart condition, was diagnosed with attention deficit disorder (ADD) and dyslexia.
After accepting a place at a local specialist secondary school in the summer, however, she was informed that the council would not be supporting his attendance at the fee-paying school.
She submitted an appeal, but was told that it would be over a year until Blake’s case would reach tribunal, leaving her on the hook for the school fees.
Though eventually successful with her appeal, the family forked out over £30,000 in school and legal fees, remortgaging her home to cover the costs.
“Both my husband and I are self-employed. I took on the bulk of the admin work and it put me in hospital at one point with the stress when he didn’t have his [council-funded] school place and we decided to go ahead with the independent school.
“[The appeals process] is so labour-intensive. The toll of it all has really affected my business and the amount of time we can spend with our children.
“It just felt like a year-long process of stress that was totally unnecessary.”
Spending on Send provision is estimated to reach £21 billion annually by 2029, according to analysis by the Institute for Fiscal Studies.
Several families who opened up to LBC about their experiences accused their local authorities of using the tribunal system as a means of deterring families from pursuing support for their children, thereby reducing costs.
Sarah, who has been fighting for a specialist school place for her son, who lives with autism spectrum disorder, told LBC she “100%” believes that some councils are using the system this way. “You’re constantly on a war-footing - you’re always ready for a fight. You inevitably take it out for the people around you.
“I think tribunals are used to defer any decision… 100% - I think that’s true.
“The local authorities know that they have to take a short-term view because there’s just been so much underinvestment in the system considering the increased amount of diagnoses and support children need.”
The Local Government Association says the significant number of cases resulting in tribunal is a reflection of the wider issues in the system. Almost 1.7 million children in the UK receive Sendsupport.
The proportion of children who benefit from this support has doubled in just over a decade.
Education secretary Bridget Phillipson has been under fire for delays to the publications of the SendWhite Paper, with politicians across the political spectrum seeing their inboxes inundated with frustrated parents venting their frustrations with the system and pleading for help.
Since ousting Liz Truss from her South West Norfolk seat, Labour MP Terry Jermy has faced such intense demand that he’s employed a Send case specialist, working 20 hours a week specifically on tribunal claims.
“The latest estimate in Norfolk is something like a million pounds on legal fees for the county council alone, fighting Send families at tribunal level.
“I mean, that's a million pounds that we could be spending on direct support for the children and their families.
“We can't have a situation where parents are desperate to get the right support for their children and [are] coming up against obstacles all the time.
"I hope the government's white paper achieves that.”
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Speaking at a school visit in Bedford last week, Ms Philipson acknowledged that the appeals system had become “too adversarial.”
LBC understands that the government is set to introduce statutory responsibilities on schools to provide a minimum standard of Send support, raising the bar in non-specialist schools.
Ministers are also mulling changes to the system to tackle the spiralling Send bill.
Reports suggest this could include dramatically reducing the number of children eligible for support, limiting it to children with the most complex and acute needs.
Any erosion to the support offered to children with more moderate needs is likely to be met with a significant backlash from parents, campaigners and backbenchers, given the current volume of demand.
A spokesperson for the Department of Education said: "For too long, families have been forced to desperately fight for even the most basic support for their child. We have been clear there are no plans to abolish the SEND tribunal, and there will always be a legal right to additional support for children with SEND.
“Work is already underway to deliver earlier help for families, including through £3 billion to create 50,000 specialist places, earlier intervention for speech and language needs and SEND professionals in every Best Start Family Hub – embedding support in every community.
“We will continue engaging with parents, teachers and local authorities and will set out our full plans to reform the system through the Schools White Paper early this year.”