‘Every parent has to fight’. These words appear in bold in a BBC article about a protest against failures of service to children with special educational needs and disabilities (SEND).

The protest happened on 21 June 2023, but comes after years of mounting problems. The words are damming but true. Families of children with SEND frequently find themselves not being served by the system, but lost in it.

In the Bindmans’ Education Law team, we see this constantly. We recently worked with a family whose child, who we will call B, has autism and other complex needs. He was non-verbal and communicated with some very limited hand signals. His local authority placed him in a mainstream school without the facilities and professional support needed to keep him safe, let alone enable him to learn and develop. Eventually, he stopped attending altogether. Bindmans supported B’s parents in bringing an appeal. We urged the local authority to back down at an early stage, recognising that there was only one, inevitable outcome of legal proceedings. They refused and fought for nearly a year before the matter came before a judge. The local authority was criticised for having defended the appeal and were ordered to secure a suitable school place. The judge considered the local authority’s behaviour to be egregious enough to award B’s family legal costs. This is very rare in the Tribunal.

B did much better after the move to a new school. He was able to attend regularly, and his behaviour and engagement recovered dramatically. The sad reality is that, whilst he was entitled to this effective education all along, it may never have happened without legal support and a stressful, complex appeal.

B’s situation is not rare. In fact, the scale and growth of the problem can be seen in the government’s own statistics. In the last seven years, the number of appeals families have brought against SEND decisions has nearly tripled (see figure 9.1 here). The number of cases waiting to be determined by the Tribunal has also nearly tripled in only five years (see figure 9.2 here). Most concerning, the government themselves acknowledge that ‘of the cases decided [in the last year], 96% (5,400) were in favour of the appellant’.

These statistics are shocking. Bringing an appeal should be a rarity, a last resort in only extreme cases. Local authorities should be confident they can win an appeal before defending it, to avoid unnecessary litigation and delay for families and children waiting for support. Yet, more than 19 in every 20 families will win their cases.

What this means is that local authorities are making poor and unlawful decisions routinely, and with increasing frequency. Then, when challenged, they are refusing to back down and are instead spending public money on doomed appeals. In B’s case, the local authority did not even submit a defence to the appeal when required to do so by the Tribunal. Whilst all of this is happening, children are left without essential support. Some will even be left without school places, their lives on hold until the process works itself through.

This rise in cases is causing a significant backlog in the Tribunal, and some families now wait a year or more for a final hearing. For most families, it is hard to imagine their children having to miss an entire year of schooling.

All this reveals a frightening truth for families who find out their child has SEND. It marks the start of an often long and bitter struggle in which they fight a system designed to support them. That system is unlikely to volunteer the support their child needs and is entitled to. Instead, it is likely to put up barriers and families will find themselves fighting for everything they need in a hostile, complicated and overburdened system. Typically, those families able to secure advice and advocacy stand the best chance of having local authorities put support in place in a timely manner. It should not be this way, but until the government acknowledges the scale of this problem and takes radical action to fix it, it will be.