LGA response to Tribunal Procedure Committee consultation on possible amendments to the Tribunal Procedure

The Local Government Association (LGA) is the national voice of local government. We work with councils to support, promote and improve local government.

We are a politically-led, cross party organisation which works on behalf of councils to ensure local government has a strong, credible voice with national government. We aim to influence and set the political agenda on the issues that matter to councils, so they are able to deliver local solutions to national problems. The LGA covers every part of England and Wales, supporting local government as the most efficient and accountable part of the public sector.

• Supporting the growing number of children and young people with Special Educational Needs and Disabilities (SEND) is one of the biggest challenges facing councils. As the National SEND Review identified, ‘the SEND system in England is ‘failing to deliver for children, young people and their families’ and ‘despite the continuing and unprecedented investment, the system is not financially sustainable.’ 
• The national high needs block for SEND rose from £5.3 billion in 2014-15, to £9.4 billion in 2024-25. On top of national funding, councils have spent an additional £950 million on SEND support in 2023/24 alone. We estimate that nationally local government’s cumulative high needs deficit now stands at £3.15 billion, which is now threatening the financial viability of some councils. Despite record investment and the high rate of assessment and identification of needs, there is no clear evidence that outcomes for children have been improving. Across some measures they are declining. 

• There has been disproportionate national growth in the number of children with SEND, and therefore applications for an Education, Health and Care Plan (EHCP). The number of children with EHCPs has increased 140% since they were introduced in 2014, outstripping both population growth and the number of children with SEN support in mainstream schools without a statutory EHCP, as well as in other large European countries. 

• The LGA does not support the proposal to move to hearing appeals on papers only in what is a very complex area of work. Both the current and previous governments have recognised the very significant challenges in the SEND system and the need for reform. Any changes to the tribunals and appeals process should not be undertaken in isolation, as is being proposed, and should instead be undertaken as part of wider reform to the SEND system to avoid destabilising the system and further unintended consequences. 

Supporting the growing number of children and young people with Special Educational Needs and Disabilities (SEND) is one of the biggest challenges facing councils. As the National SEND Review identified, ‘the SEND system in England is ‘failing to deliver for children, young people and their families’ and ‘despite the continuing and unprecedented investment, the system is not financially sustainable.’ 

The national high needs block for SEND rose from £5.3 billion in 2014-15, to £9.4 billion in 2024-25. On top of national funding, councils have spent an additional £950 million on SEND support in 2023/24 alone. We estimate that nationally local government’s cumulative high needs deficit now stands at £3.15 billion, which is now threatening the financial viability of some councils. Despite record investment and the high rate of assessment and identification of needs, there is no clear evidence that outcomes for children have been improving. Across some measures they are declining. 

The LGA and County Councils Network-commissioned independent research, ‘Towards an effective and financially sustainable approach to SEND in England’ argues that fundamental reform of the SEND is urgently needed, is essential and unavoidable, both to improve outcomes for children with SEND, and to protect local government from mass insolvency over the next three years. 

The SEND and Alternative provision improvement plan, published in March 2023, set out a number of reforms to SEND systems, which would be tested and refined by councils and their partners participating in the SEND Change Programme. The Change Programme was designed to build a strong evidence base in order to inform future funding and legislation. We are therefore concerned that the Tribunal Procedure Committee’s proposal to amend the SEND tribunal appeals process is not consistent with the Department for Education’s approach to SEND reform. Implementing this proposal is likely to confuse central government’s existing communications with the councils and their partners in local SEND systems, including parents and carers, as well as causing further anxiety and conflict in an already highly adversarial system. This in turn risks damaging the new government’s plans for broader reform which are still in development. 

There has been disproportionate national growth in the number of children with SEND, and therefore applications for an Education, Health and Care Plan (EHCP). The number of children with EHCPs has increased 140 per cent since they were introduced in 2014, outstripping both population growth and the number of children with SEN support in mainstream schools without a statutory EHCP, as well as in other large European countries. 

The 2014 SEND reforms have created a culture where EHCPs are now considered to be the only route to receiving funding and therefore support to meet the child’s needs. A lack of clarity in the Children and Families Act 2014 has resulted in an extremely low threshold for deciding whether to undertake an assessment, which has led to unprecedented increase in assessments, leading to an increase in refusal appeals. Undertaking an assessment and developing a personalised EHCP is not simply an administrative task, it involves multi-agency assessments with input from councils, schools and health, with all three partners facing need and funding pressures. The consultation document is therefore right to acknowledge that the significant backlog in assessments is not directly attributable to councils.

The consultation document states at paragraph 20 (b) that “local authorities often appear incorrectly to apply the relevant statutory test for determining whether an assessment should be granted…” We do not support this assertion; councils do not incorrectly apply the relevant statutory test for determining whether an assessment should be granted. The Children and Families Act 2014 states that councils must secure an education, health and care (EHC) needs assessment for a child who “has or may have special educational needs” and “it may be necessary for special educational provision to be made in accordance with an educational, health and care plan (EHCP)”. 

The SEND Code of Practice statutory guidance provides further clarification on how councils should carry out their statutory responsibilities. It states that a more graduated approach should be taken: “in considering whether an EHC needs assessment is necessary, the local authority should consider whether there is evidence that despite the early years provider, school or post-16 institution having taken relevant and purposeful action to identify, assess and meet the special educational needs of the child or young person, the child or young person has not made expected progress”. Councils should not carry out an EHC assessment without evidence from the child’s education setting that ordinarily available provision is unable to meet the child’s needs. To do so would be both unfair to the child and an inefficient use of public finances. 

When both parties agree for the SEND Tribunal decision to be made on the papers, it removes their opportunity to provide additional evidence to support their cases. For councils, this puts them at a disadvantage because they are unable to share additional information about their decision-making process and means they are less likely to be successful. Rather than councils causing a purposeful delay, as was implied in the consultation document, holding a hearing in person ensures that the SEND Tribunal panel can take all relevant information into account. If the council is successful, the child and their family will not have to endure unnecessary, lengthy assessment processes, and that their education setting can focus on providing more effective support to meet their needs as part of ordinarily available provision. 

The LGA does not support either of the proposals set out in the consultation. We believe that both are undesirable and inappropriate and should not be implemented at a time when local SEND systems are under significant pressure. Removing both parties’ rights for an in-person hearing removes the opportunity to provide additional evidence to support their case, while removing this only for the council is deeply concerning. This is likely to only cause further distrust, making it harder for central government to reform the system into one which is effective and sustainable, where all partners are confident that decisions are being made with children’s best interests at heart. 

If hearings were to only be held on papers, it would make a difficult appeals system even more challenging to navigate and would make the first stage of decision making effectively unnecessary if almost all cases were to proceed to assessment. A more effective way to tackle the backlog in the short to medium term while long term reform gets underway would be to remove requests to assess from the appealable decisions list.