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Local Authorities Spending On SEND

January 13, 2023

This is a guest post.

The i on 18th December 2022 reported that local authorities have spent more than £325m in the past 8 years defending cases against parents in the education tribunal (SENDist), the vast majority of which they lose. This news will be shocking to many, but as a solicitor representing families in this arena, this completely aligns with my own experience.

I have attended tribunal hearings where local authorities are opposing provision sought by families, but are unable to produce any expert evidence whatsoever to support their position; this is doomed to fail. I have also represented families where Education Health Care Plans (EHCPs) have been denied to children with clearly evidenced special educational needs (SEN) which cannot be met without additional provision – these families have gone on to successfully challenge the local authority and their child has been granted a full EHCP with significant support, including full time 1-2-1 learning support assistance.

Unconscionable as it seems, one can’t help but think this cynical approach on the part of local authorities is deliberately designed to put families off the process, in the hope that they will lose their nerve before the hearing date or, keeping in mind the many demands on families of children with SEN,  that they will run out of time, energy and resources to engage in the fight. The further explanation, that fighting cases delays local authorities having to pay for support until after the hearing date, is equally plausible.

One of the main problems is the rarity of costs orders against local authorities in the education tribunal. The default position in these cases is that each party bears their own costs. Therefore, if a parent fights a claim to tribunal and wins, they bear their own legal costs of so doing, which can be significant. Unless local authorities are penalised financially for these kinds of tactics, they have no incentive to change their approach. Surely, they would adopt a different approach if they knew there was a real risk that they would be ordered to pay the successful party’s costs by the tribunal. In this broken system, families are instead forced to incur their own legal costs to fight untenable arguments put forward by local authorities, with no meaningful route to recovering these costs even if they are successful in the tribunal. And all while their child is without the support they often so desperately need.  The structures designed to support children with SEN are crumbling, and it is families and children who are suffering.   

Claudia Hillemand, Partner in the Child Brain Injury team at Bolt Burdon Kemp

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