When I first started writing about the laws pertaining to special educational needs and disabilities (SEND), as they apply to children and young people, local authorities (LAs) lost 96% of cases they contested to the SEND Tribunal. As the number of cases brought increased, that figure rose to 98% and now stands north of 99%.
The reaction of councils and the bodies that represent them to extraordinary statistics was never to hang their heads in shame. Instead, they paid for consultant-written reports that attributed tribunal wins to pushy ‘middle-class’ families. A taxonomy was developed which insisted that education, health and care plans (EHCPs), which included legally enforceable provision for the individual to whom they attach, are ‘golden tickets’.
LAs desperately wanted to be rid of their legal duties, to be replaced by principles like ‘best endeavours’.
What is staggering is that while not a shred of evidence exists to suggest the tribunal has been making bad decisions, ministers from both Conservative and Labour governments uttered not one word of criticism of LAs’ superintendence of their SEND responsibilities.
The Department for Education and its ministers have decided there is something wrong with the tribunal. A bit like Captain Von Trapp near the start of The Sound of Music, who believed there was nothing wrong with his children, only with their governesses.
Accordingly, the consultation document attached to this week’s long-awaited education white paper includes a two-pronged assault on the jurisdiction of the tribunal. First, it plans to strip the tribunal of its ability to determine which educational setting is named in an EHCP. It can only quash a decision. Second, it sets out tiers, or ‘layers’, with only the highest level of need given access to EHCPs.
Yet the involvement of the tribunal in an increased number of disputes reflects failings in the SEND system. If other reforms set out in the white paper and the consultation paper, and promised public funds, provide what is needed, then tribunal cases will drop.
A fall would be a proud reflection of a well-functioning system. Instead, the impression is given that government means well, but is also determined that people will get what they are given and let that be an end to it.
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