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A zero sum game?

The number of SEND tribunal cases is rising and the proportion of appeals ‘lost’ by local authorities is at a record high. Lottie Winson talks to education lawyers to understand the reasons why, and sets out the results of Local Government Lawyer’s exclusive survey.

Two-thirds of school leaders dissatisfied with existing guidance on supporting SEND pupils, survey finds

Two-thirds of school leaders are “dissatisfied” with existing guidance on supporting SEND pupils, with 68% regarding the creation of a national set of SEND standards as the “biggest priority area” for Government, according to a survey by law firm Browne Jacobson.

The survey, which captured the views of 200 school leaders, found that 90% were discontent with Special Educational Needs and Disabilities (SEND) funding, and 82% with SEND policy more broadly.

In particular, there were concerns with government guidance on exclusions and absence management for SEND pupils.

According to the latest data published by the Department for Education (DfE), permanent exclusions in primary and secondary schools increased year-on-year by 35% to 4,168 in the 2023/24 autumn term, and SEND pupils accounted for roughly half of exclusions.

The Browne Jacobson survey found that creating a national set of SEND standards (68%) was regarded as the “biggest priority area”, followed by the previous government’s plan to provide funding for an additional 33 special schools (66%); local SEND and alternative provision partnerships (48%); standardisation of education, health and care plans (EHCPs); and amending the SEND code of practice (28%).

One assistant head teacher responded: “We cover 5 different local authority areas, with 5 different processes and 5 different EHCP templates. One approach (taking the best elements from each!) would lead to better outcomes for all pupils.”

The report also found that the government’s proposal to help tackle the SEND crisis by training existing members of staff so that every school can access a mental health professional was the preferred approach by only 14% of respondents – behind three other potential solutions.

Laura Thompson, Senior Associate at Browne Jacobson, said: “While insufficient SEND funding continues to be a major cause of frustration for school leaders, despite the extra £1bn pledged in the Autumn Budget, the wide range of issues captured by our School Leaders Survey is another sign, if one was needed, that the SEND system requires a significant overhaul.

“The latest DfE exclusion data is a huge cause for concern – no headteacher ever wants to exclude a SEND pupil but without the wider support, many will feel they have no other option.

“The lack of consistency in approach to SEND within different areas of the country has shown itself to be a huge issue for schools, alongside SEND funding.

“The previous government took steps to implement ‘national SEND standards’ with a view to ensuring consistency in the way that children’s needs are assessed and met across the country. The change in government has likely slowed the process but this is clearly something that school leaders are still very keen to see.​”

She added: “Since the publication of the SEND code of practice in 2014, there have been questions around when – or if – a standardised template will be prepared for EHCPs but there is still no sign. For something that would, in the grand scheme of things, be a relatively straightforward change to make, it could make a significant difference to schools, local authorities and parents.”

A Department for Education spokesperson said: “Teachers are central to our mission to break down barriers to opportunity and improve the life chances for all children, including pupils with SEND who have been let down by a system that is not working for far too long.

“We are determined to tackle these issues head-on, which is why we announced a significant £1 billion investment into the SEND system in the budget, committed to providing access to specialist mental health professionals in every school and our new regional improvement teams will work with schools to spread the highest standards of behaviour across our classrooms.”

Lottie Winson