The staggering increase in education appeals coming before the tribunal should prompt a fresh look at how such cases are managed, a solicitor has said.
Figures published this month for July to September show the pressure the Special Educational Needs and Disability tribunal is under from a mounting caseload.
In the academic year 2023/24, HM Courts & Tribunals Service recorded 21,000 registered appeals in relation to SEN, an increase of 55% compared to the previous year.
In the same period, 17,000 SEN appeals were disposed of, an increase of 43% on 2022/23. The open caseload for the SEND tribunal rose 57% from the end of September 2023 to the end of September 2024, as receipts continued to exceed disposals. Receipts and disposals have both increased in each of the past eight years.
HMCTS said the increase was due to a combination of different factors, including the continued effect of the 2014 SEN reforms, which introduced Education, Health and Care (EHCP) plans and which extended the provision of support from birth to 25 years.
The government also says the rise has been caused by the growth in the number of families seeking EHC plan assessments and subsequently the rise in the number of children and young people with an EHC plan.
Laura Thompson, senior associate specialising in SEND matters with national firm Browne Jacobson, said the figures make for ‘alarming reading’.
She added: ‘While the factors suggested by the SEND Tribunal will have played a role, each of these have existed for some time – yet this is a problem that is increasing exponentially, with the 55% rise in appeals this year a significant uptick on figures of 24% and 29% in the previous two years.
‘This is not a sustainable trend and only serves to further undermine the support available to SEND children. In most cases, tribunal hearings are being listed at least a year after an appeal is registered, which, when considered in the context of a child’s education, is huge.’
The Tribunal Procedure Committee has consulted on a change to the rules so that appeals can be heard on the papers without the consent of both parties. The two proposed options were that neither party could request a full hearing or only the appellant could do so – effectively sidelining local authorities either way.
Thompson said such a change would do little to steady the flow of appeals. She suggested that it may be time to look again at the prominence of mediation.
‘The previous government proposed mandatory mediation as part of its SEND review in 2022,’ she added. ‘This was met with mixed opinions, with some feeling this would only serve to further protract the resolution process.
‘However, high-quality mediation can be an incredibly useful tool for reaching agreement and the current requirement to only “consider” mediation in most cases means that, a lot of the time, it isn’t accessed at all. Mandatory mediation may not be the answer, but something has to be done and perhaps it is worth a revisit.’
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