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The special educational needs and disabilities (SEND) tribunal process is being used more than ever, with the number of appeals in 2024-25 increasing to 24,000 - or by 36 per cent year-on-year.

It’s costing more than ever, too. In 2023-24 local authorities allocated an estimated £153 million to appeal defences, while the Department for Education sent over £13 million to HM Courts and Tribunals Service.

The SEND tribunal hears appeals against local authority decisions on education, health and care plans(EHCPs), including appeals against a decision not to issue an EHCP, the special educational needs or provision described in an EHCP, or the setting named.

For parents and carers, it’s an arduous process that can mean months or even years of fighting for the education that they believe their child needs. But if a case gets as far as tribunal, it’s very likely the family will win, with 98.7 per cent of decisions going in the parents’ favour.

While this often traumatic experience for parents has been widely covered, a less discussed part of the tribunal system is its impact on schools, particularly the specialist settings that parents wish to be named on their child’s EHCP.

As the sector awaits the government’s White Paper on changes in SEND support - due to be published in the autumn and under which the tribunal process is being considered for reform - the effect of tribunals on schools and their ability to support children with SEND is a critical consideration.

SEND tribunals ramp up the pressure

School leaders describe a “frustrating” and “oversaturated” tribunal system that, due to the increase in appeals, is only getting worse.

“Last year, if I had only worked my allocated hours, I would have spent 27 per cent of those hours doing tribunals and consults,” says Claire Wills, headteacher of Mill Ford School, a special school in Plymouth. “And it’s probably at least that this year, if not more.”

Stephanie Smith, headteacher of The Cavendish School, a specialist setting in Cambridgeshire, has had a similar experience. “On average I lose 10 hours a week on tribunals,” she says, adding that she has so far spent 50 hours writing a witness statement for an upcoming hearing and she hasn’t even finished it yet.

If a parent wants their child to attend a special school, they apply via the local authority to have that school named on their child’s EHCP. As part of this process, the special school is consulted on whether it can take the child, with the headteacher giving a response to the local authority that informs its decision. If the family is told their child will not be offered a place, they may then appeal by taking the local authority to tribunal.

The capacity crisis in special schools

It has come to this because there is a capacity crisis in special schools. Tes analysis shows that while there has been a 54.9 per cent increase in the special school population since 2016, there has only been a 22.4 per cent rise in the number of special schools.

At Mill Ford School, Wills says a recent capacity survey found that the setting could take between 72 and 96 students, depending on their needs. “But next year on this site we’ll have 100, so we’re already over that,” she explains.

Understandably, when Wills is consulted on whether the school can take more students, she says it can’t.

“We’ve never been able to say ‘yes’,” she adds.

But these numbers - clearly showing that the school is over capacity - don’t help her. “Legally, you can’t use capacity” as a reason, Wills says.

“If the judge names your school, you have to take the child, irrespective of all the dangers”

A school can use one of three reasons to explain why it is unable to take a child: the student isn’t suitable based on their age, ability, attitude or needs; the attendance of that student at the school will not be compatible with the provision for children already at the school; or the child’s attendance will be incompatible with the efficient use of resources.

Wills most often cites the second reason, which means that she must write a witness statement as well as filling in a survey describing every child already in the class in which the potential student would be placed, and how that new student’s attendance would affect them.

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After sending that off, she waits - typically for nine months or even a year, during which time the child is likely to be out of education - before she is called to be a witness at the tribunal hearing, where a judge questions her on the witness statement she wrote all those months ago.

“And then the judge makes a decision, and if they name your school, you have to take the child, irrespective of all the dangers,” Wills explains.

‘Why can’t you just squeeze one more in?’

Needless to say, when 98.7 per cent of tribunal cases go in the families’ favour, schools are typically directed to take children despite overcrowding or an inability to meet need.

The Cavendish School was built for 80 students. Smith says that next term, just four years after opening, it will have 126.

She explains that in recent years she has had just one case in which the judge ruled that placing a child at the school would be inappropriate. Otherwise, she says, the verdict is always: “Why can’t you just squeeze one more in?”

What’s more, a judge’s questioning about how the school might move existing students around to make space for an additional child can be “quite invasive”, Smith says.

Once a judge insisted that the school should convert a bathroom into a classroom to make space - at the school’s expense. “That’s thousands of pounds that we had to find for significant building work to accept one child,” Smith says.

At other times, the tribunal’s conclusions have simply been unsafe, she argues. “I have had a ruling from a judge where he has said he’s not bothered that the fire risk assessment says it’s dangerous to keep adding children in.”

Loss of specialist provision

Smith’s experience isn’t unique. Kris Williams, regional director at The Eden Academy Trust, which runs eight special settings, describes the effects of overcrowding at the trust’s schools that has resulted from tribunals continuing to direct children there.

“In a number of our schools we’ve lost specialist rooms - drama and art rooms, science facilities,” he explains.

He adds that in one school there are now not enough slots for every class to be able to use the sports hall for PE once a week.

The result of overcrowding is “significant”, Williams says, because the reason these students are in a special school in the first place is to have access to this specialist provision, in a setting that is more suitable for their needs than a large mainstream school would be.

Students with SEND “need a less crowded, less pressured environment”, he adds. But the more students who are directed towards already over-capacity schools, the more crowded, more pressured the schools become.

Part of leaders’ frustration with the tribunal system lies in the fact that although they are the ones who see the impact of directives on the ground, they feel that their expertise is not being properly considered in the courts.

Gemma Buley, principal at Thames Valley School in Reading, a special school that is part of Liberty Academy Trust, says that like others, she and her staff spend many hours preparing statements ahead of tribunal hearings. But “ultimately, whether or not we feel we can meet need, the child is typically placed with us”.

“It often feels as though the school’s voice is not listened to, despite our in-depth knowledge of our school, cohort and provision. Decisions are taken out of our hands and made by individuals who are removed from the day-to-day realities,” Buley adds.

This sentiment is echoed by Warren Carratt, CEO of Nexus Multi Academy Trust, which runs 16 special schools, who explains that the legal situation is, in fact, even worse - because schools have no statutory right to be involved in tribunals at all.

No statutory right for schools

“With the high volume of tribunals now, the judiciary are securing the placement of more and more children in special schools, which is absolute madness because the judiciary sits so far away from the front line, and there is no statutory or legislative mechanism to ensure that the biggest expert in the school itself, the headteacher, has agency in that process,” he says.

As such, his schools are dependent on local authorities “working with us in a clear, forward-planned way, sharing documentation with us and, indeed, letting us know that a tribunal has been instigated - and that doesn’t happen across the majority of our local authorities”.

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Even when they are called for a tribunal, his headteachers are left “sat around all day waiting to be called in, and it might be they don’t get called in at all”. Carratt says this is an example of “a headteacher being massively underutilised, which is a waste of publicly funded time and resource”.

And all of this only for the judge - most likely - to rule against the local authority (and by extension the school) anyway.

“Headteachers are then the ones left looking at larger class sizes and complaints from parents”

While a special-school placement should be welcome news for the family of a child with SEND, Carratt says that for schools that are already over capacity, such directions only bring more challenges - which, in time, also become issues for parents.

“Headteachers are then the ones left looking at larger class sizes and complaints from parents. We have a growing trend now of parents of children who have been with us for three or four years complaining that their child is in a large class group. And our response can only be, ‘We absolutely understand your concerns, but we can’t control this.’”

Such a situation leaves headteachers “exhausted, burnt out and, ultimately, being legally responsible for the quality of provision when they have no control of the metrics”, he adds. “It’s special-school headteachers that are left carrying the responsibility, the risk and, ultimately, the accountability if it goes wrong.”

‘The worst way to meet parents’

What’s more, for many families the tribunal system perpetuates a “‘We’ve got to fight for this” mentality, Carratt says. “I have real sympathy and empathy with that perspective. But if the only way you’ve got your child at a school is by a tribunal directing them, despite the headteacher saying no, I don’t think you could have a lower bar to start with in terms of engagement,” he adds.

Williams concurs: “The tribunal process is probably the worst way [for a school] to meet parents.”

The fact is, currently there simply isn’t enough specialist provision for every child who needs it.

But communicating that to parents is a difficult job, Williams adds.

“By saying, ‘There aren’t enough places in our school,’ it may feel like we don’t want your child, whereas actually we do want your child - if it’s possible and if it’s the right place for them.”

Smith says she leaves tribunals “feeling heartbroken for the families in our school. I have children who have finally had an educational experience that worked for them, and then that’s going to get worse because there’s another child who needs a school place”.

The inclusion agenda

These damaging effects of the SEND tribunal process are being felt far beyond specialist settings.

Seamus Murphy, CEO of Turner Schools, a Kent-based MAT with eight mainstream schools, says his primary Sendcos have seen an increase in the number of tribunal hearings they are involved with - up to an average of three a year compared with just one a few years ago.

He says that typically a Sendco is asked to a tribunal hearing as a witness for a local authority in a case where the parents want a special school named on their child’s EHCP, and the local authority argues that need can instead be met by a Turner school.

But the Sendco’s expertise isn’t even necessarily called upon.

“We’ve had experiences where the local authority concedes because they’re not meeting the statutory requirements for the completion of paperwork,” Murphy says. “There have even been cases where my staff have been at tribunals and they haven’t been allowed in because [the local authority] haven’t done the paperwork.

“It’s really frustrating because it increases [Sendcos’] workload. The process burdens Sendcos.”

Murphy adds that he believes the “tragedy” of this system is that the needs of many children with SEND “can be met within mainstream with strong, inclusive practice” - something that the government is promoting, having announced £740 million for the creation of specialist places in both mainstream and special schools and having set up an advisory group on inclusion.

But, Murphy says, “there is a tension between the accountability system - being successful as a school - and the need to be inclusive”.

‘Off-rolling’ students with SEND

This is something that another mainstream MAT CEO, who wishes to remain anonymous, has also experienced. They tell Tes that the increase in the number of parents going to tribunal is having a knock-on effect on the inclusion agenda in mainstream schools.

“Local authorities try to avoid [tribunals] like the plague, because they know they’re going to lose,” they say. Instead, they “try to placate parents” and, “rather than put in place appropriate provision, they see an opportunity to direct an inclusive trust to take children [with SEND]”.

The CEO describes a situation with one of the trust’s primary schools, which is over its pupil admission number while another local primary has 12 spare places. “The parents have admitted they believe they’re ‘going special through the back door’ to us. That’s what the local authorities have told them, because they don’t want to go to tribunal.”

By avoiding tribunals, local authorities are saving money. But they’re also “off-rolling kids” to “the most inclusive” mainstream schools, “putting us in a position where we are struggling to meet need”, the CEO says. And they’re widening the gap between those schools that are deemed inclusive and those that get great exam results.

For a school or trust to challenge a local authority’s direction, it means going to judicial review, which is costly. “You can’t go to a judicial review without having a barrister,” the CEO says.

“And while I’m in that bunfight, that child is usually not in school,” meaning that such a situation “is not in the interest of that child”, they add.

Call for reform

Will the government ever find a solution to this SEND crisis that treats both families and schools fairly?

All the leaders who Tes spoke to for this article - some of whom have children with SEND themselves - say they understand why parents take local authorities to tribunal.

“Parents will always want what’s best for their child,” Williams says.

But Margaret Mulholland, SEND and inclusion specialist at the Association of School and College Leaders, says “it is reasonable to question whether having a judicial body make decisions about the educational provision and placements of children and young people is the best way to resolve these disputes”.

However, the tribunal system is just part of “a wider, dysfunctional system that lacks the infrastructure needed to support families and schools”, she adds.

“We urgently need reform to ensure there are sufficient places in special schools, mainstream schools are able support all their pupils and local authorities are in a stable financial position where they can aid this process.”

A DfE spokesperson tells Tes: “The evidence is clear that this government inherited a SEND system left on its knees - which is why we are looking at changes to improve support for children and stop parents having to fight for help.”

They add that the “government is actively working with parents and experts on the solutions”, pledging that, “as part of our Plan for Change, we will restore the confidence of families up and down the country and deliver the improvement they are crying out for so every child can achieve and thrive”.

Tes also contacted the Courts and Tribunals Judiciary, which declined to comment.

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