Jack, the beanstalk and the SEND Tribunal

I start the car, then immediately kill the engine and leg it back to the house. If there’s one thing you don’t want to forget when watching the Christmas show at a special school, it’s your handkerchief.

It is needed (I’m not a dry-eye parent). But the show, a pantomime Jack and the Beanstalk, is fantastic. All the pupils at my daughter Amy’s school have very significant learning disabilities, accompanied for quite a few by complex health problems. So the staff give the story a frame through acting the verbal parts and leading the songs. The deputy head is in a band, which provides the live musical accompaniment for free.

Into the plot and direction are put things that each student can do. A lot of them are really pleased with the applause. And most impressive of all is seeing on stage the things this school provides students with year-round, which is the confidence to be, the ability to do, and the chance to be part of something with their peers and teachers.

And every single one of these children has an Education, Health and Care Plan (EHCP). The legal enforceability of the education element in these plans underwrites the provision of everything that, fused with staff dedication, has made this production of Jack possible.

The audience included past students and their parents, and former staff, which was nice. People who didn’t come included local councillors or anyone from the local authority SEND or social care teams.

Which was a shame, because SEND Tribunal figures published earlier this month show councils to be determinedly doubling down on the creation and enforcement of EHCPs. In doing so, they break the law to a staggering degree, enabled and tacitly encouraged by Department for Education policy.

The statistics supporting my view are way, way beyond contestation. (Here I’m indebted to the number crunching of Matt Keer, a fellow SEND parent and respected authority, writing for Special Needs Jungle: When will councils stop wasting public funds defending SEND appeals when they fail almost all the time?.)

The SEND Tribunal figures for 2022-23 show that the local authority decision was upheld in just 139 of the 7,968 appeals that went to a full hearing.

That’s a council success rate of 1.7%, the worst figure on record. (It averages 5% since 2014.)

And this for a year when cases were up 24%.

This is not the trend you would expect when claims go up. All things being equal, there should be pressures within the system that winnow out cases with less legal merit, such that a jump in claims pulls in cases with a lower chance of success.

The winnowing pressure, in terms of cost and emotional strain, is there for parents headed for tribunal, and still the cases go up. This points to families feeling like they have no choice.

But the pressure on local authorities is largely absent. The decisions they make – such as a refusal to assess children and young people’s needs in line with the legal test set out in the Children and Families Act 2014, a very basic denial – result in no adverse consequence on the LA. In a worst case scenario for LAs, they may have to provide what they denied after a money-saving delay.

Matt Keer estimates LAs spent £99.2m defending tribunal appeals in 2022-23, up from £73m in 2021-22. It’s tempting to decry the waste of public money this represents, but in cynical terms, LAs are probably saving money. My daughter’s special school place costs around the same as Eton’s school fees. If going to tribunal to fight such provision being set out in an EHCP costs the LA £10,000 in legal fees, achieving a delay of 12 months, then the council is still ‘up’ financially.

But if you find it hard to imagine the sort of lawyer who advises their client to defend to trial a case where the chance of success is estimated at under 2%, it may be because there is no lawyer present when that course is set.

I asked Rachel McKoy, head of the Local Government Lawyers Association about this point earlier this year. She replied: ‘I think what’s probably happening in those areas is maybe the client departments are just taking a bit more of the lead than maybe they should.’

That lead seems to include the decision to go all the way to the tribunal and instructing external counsel.

There are suggestions as to what might make a difference. In July an Administrative Justice Council (AJC) report ‘Special Educational Needs and Disability: Improving Local Authority Decision Making’, had a series of recommendations.

For example, it observes: ‘A limitation of the Tribunal’s current approach is that decisions in individual cases, unlike most courts and tribunals, are not routinely published. This is unhelpful as it prevents interested stakeholders from analysing problems identified in LA decision-making and limits the knowledge sharing that would be possible (at least in theory) among LAs throughout the country.’

The AJC urges the establishment of learning mechanisms to inform decision-making, drawing on better information from cases, mediations and the information available from Local Government Ombudsman decisions.

Others have noted that the tribunal does not in general make use of its powers to award costs – though as ever there is a queasiness around financial penalties on hard-pressed public bodies.

Sane thinking from the AJC is, though, undermined by government policy. DfE has thoroughly bought the line promoted by the Local Government Association, that blames tribunal losses on ‘affluent’ parents. (Charities like IPSEA, which provides legal support to children and young people with special educational needs, point out that the tribunal makes decisions based on law, not affluence.)

The LGA, supported by its hired gun consultancy Isos, argues for a ‘rebalancing’ of the ‘statutory framework’ – basically downgrading provision from a legal requirement.

DfE, as I’ve noted before, has created a perverse incentive in SEND, whereby councils get rescue money for their ailing budgets, in return for a promise to suppress EHCP numbers. To access funds, councils sign a ‘Safety Valve Agreement’. The department has engaged private consultants to work on driving down the number of children and young people who receive specialist provision.

Against that backdrop – a mindset shared by central and local government – it is hard to see the training and learning advocated by AJC turning the tide.

Maybe what’s needed is a special performance of Jack and the Beanstalk, attended by councillors, officers and policymakers – at the end of which, the benefit of proper provision for these children seems to me unarguable. (Complimentary pack of paper handkerchiefs on each seat.)

And then there’s the thought provoking ending written for this particular production, where the giant isn’t slain in a mighty fall, but changes his ways, apologises for eating both of Jack’s parents, and his treasure is used to keep open the previously cash-strapped ‘Greta Garbo Home For Wayward Boys and Girls’ (definitely look up the song of the same name), where young Jack has grown up.

Who doesn’t like a happy ending?