The Department for Education had to pay the courts more than £13 million last year so it could deliver SEND tribunals.
The payment is nearly double that of the year before and another example of the ballooning costs of the special needs system.
Record numbers of parents are appealing council refusals to issue education, health and care plans (EHCPs), with nearly all winning their tribunal cases.
Warren Carratt, the chief executive at Nexus MAT that runs 16 special schools, said: “How long until we get a realistic assessment of the full cost of the SEND crisis in this country?”
“Then we can start to invest in a new way that is resourced more realistically so that it can rebuild trust and reduce the costs – financial and human – that the current dysfunctions are only driving upward at an exponential rate.”
Courts may publish decisions
Schools Week can also reveal the judiciary is considering changing the rules to speed up tribunal decisions.
Some parents wait almost a year for a hearing, with children sometimes not in school. Delays can also mean schools are not getting funding to provide the right support.
Meanwhile, the courts are also exploring publishing anonymised decisions on individual cases to try to make the system more transparent.
SEND tribunals rule on decisions such as councils refusing to issue an EHCP or a parent disagreeing with the school named on it.
Roughly £13 million was sent to HM Courts and Tribunals Service (HMCTS) in 2023-24, analysis of DfE expenditure shows.
This is almost double the £7.2 million paid in 2022-23, and way above the £600,000 in 2017-18.
The department said most of this spend was for administering SEND tribunals, a cost split between it and HMCTS.
Carratt added it felt like another example of public money being thrown at the symptoms “rather than investment being made to remedy the root cause”.
A total of 13,658 appeals were registered in 2022-23, up nearly 25 per cent from 2021 and more than 300 per cent since 2014. Latest quarterly figures also suggest another big rise.
But in 2022-23, just 136 of the 7,968 appeals that went to a hearing upheld decisions by councils – a measly 1.7 per cent.
A study by ProBono Economics estimated councils “wasted” £46.2 million on tribunals in 2021-22 alone.
‘Tackle the problem at source’
Matt Keer, an expert at the Special Needs Jungle website, said an appeal was “often the last line of accountability for families desperate to have their children’s needs met”.
“The best way to reduce this cost to the public purse is to tackle the problem at source: to fund, incentivise, and compel local authorities to make lawful SEND decisions.”
A Local Government Association spokesperson said councils were struggling to cope with the rise in EHCPs.
“We find ourselves with a system weighted down by legal disputes through tribunals and an over-reliance on special schools due to a loss of parental confidence that mainstream schools can meet their children’s needs.”
It wants the government to build more capacity for pupils with additional needs, “sustainable” long-term funding and for councils’ high-needs deficits to be written off.
The judiciary does not publish SEND tribunal outcomes. However, a spokesperson told Schools Week it was “exploring publishing anonymised decisions on individual cases” to “provide more transparency and learning for stakeholders”.
Catriona Moore, a policy manager at the legal charity IPSEA, said this “would be a good way of demonstrating, clearly and transparently, the application of relevant legal tests that local authorities could learn from.”
Separately, the tribunal procedure committee is consulting on increasing the number of appeals that can be determined by a review of documents, rather than a hearing.
It says on average, cases decided at a hearing take 33.75 weeks, compared with 14.89 for those taken on paper. Appeals registered in March 2024 were being listed for February 2025.
While parents ask for the decision to be made without a hearing in 90 per cent of refusal appeals, councils only agree in 20 per cent of these.
LAs ‘exploiting system’
The committee said that by withholding consent, the local authority could delay any final outcome that might involve its resources “to comply with the statutory deadline to complete the EHC needs assessment”.
In the “interests of justice, it was appropriate that the local authority ought not to be in a position to delay the case”.
Keer suggested this was the “closest that any public body has come to suggesting that local authorities are exploiting the SEND tribunal system to delay decisions and spending”.
The consultation closes on December 5.
A DfE spokesperson said the government “is determined to deliver change” and “urgent work is already underway to ensure more children are getting earlier and better support to thrive in education”.
