The Tribunal was the most stressful thing …
I was one of many people scrolling through Twitter on a Saturday evening in June as a series of Tweets emerged from a specialist solicitor, Mark Small, who represents both parents of children with Special Educational Needs and Disabilities (SEND) and local authorities at Tribunal. He posted Tweets in which he boasted of ‘a great win’ against parents appealing for support for their child. A storm broke out as parents of children with SEND challenged his Tweets in which he seemed to gloat about having denied a child access to support. On Sunday morning, the Tweets were deleted and an apology issued, but the storm continued to rage as parents carried on tweeting and blogging.
While some commentators were quick to point out the lessons that needed to be learned by legal firms using Twitter about the damage that can be done to a business through such ill-advised public engagement, this seemed to me, and to many other followers of the discussion, to miss the point.
In 2007, I completed a PhD which focused on the experiences of parents of children with SEND who register for an appeal with the Special Educational Needs and Disability Tribunal[i] and in the same year I published an article which set out some of the findings of my study “’The Tribunal was the most stressful thing, more stressful than my son’s diagnosis or behaviour’`: the experiences of families who go to the Special Educational Needs and Disability Tribunal (SENDisT).
When parents register for Tribunal, they do not do so lightly. These are parents who are often battling on other fronts, including with health and with social care. They may simultaneously be supporting children with behaviour that challenges as well as juggling complex care arrangements. Another fight is always unwanted and seen as the last resort.
Parents go to Tribunal because of their very real fears that their children’s educational needs are not being met. Often they know that their children are unhappy at school and they always worry about the future, if their children don’t get the right help at the right time. Sometimes, parents go to Tribunal because their child has been discriminated against on grounds of disability. These cases are among the most difficult – difficult to prove that a child has been treated badly and dififcult to prove that this is because of their SEND. In these cases, the child almost always leaves the school whatever the outcome of the hearing.
Parents have no access to legal aid for representation at the hearing. While some parents are able to pay for legal support, many cannot, and have to represent themselves. Some families are lucky enough to get support to prepare for Tribunal from voluntary organisations such as The Independent Panel for Special Education Advice (www.ipsea.org.uk). However, appealing to Tribunal can be costly as parents feel they have to pay for expensive independent reports from ‘experts’, such as educational psychologists, in order to counter the local authority’s case. In my PhD study, parents consistently described Tribunal as the most stressful aspect of parenting a child with SEND.
In the paper, I outline the stress that the Tribunal process causes to families. Parents described the financial costs of going to Tribunal including paying for expert reports, travel, accommodation, and, sometimes, legal fees. Research consistently finds that families of disabled children are more likely to live in poverty than other families and the financial toll of going to Tribunal put a huge strain on families, many of whom found themselves in debt as a result of the process.
And yet, the financial costs were often considered to be small when compared to the emotional and health costs parents paid. Several parents ended up taking medication to manage stress and anxiety which they directly attributed to the stress of preparing for and attending Tribunal at a time when they were living with a child whose educational needs were not being met. Stress levels impacted on relationships within the families, but the heaviest impact was usually on mothers who often took the lead in the family of preparing for Tribunal and representing the child at the hearing. Parents also reported that their children were aware of the stress that they were under and parents felt that their ability to parent their children and to spend time with them was negatively impacted by preparing for Tribunal.
Seven years after the publication of my research, the Children and Family Act, 2014, was hailed as the biggest reform of the SEND system in a generation. Its aim was to reduce the adversarial nature of the system and this should have extended to the Tribunal itself although recent comments on social media suggest that little has changed for families.
There is an inherent inequality in a system where Local Authorities seem to have access to limitless public funds to employ specialist solicitors to represent them, while families of children with SEND must either represent themselves or find the money to pay for representation. Access to justice is denied to those families without resources (emotional and financial) to fight for their child.
Currently 84% of appeals to the Tribunal by parents are upheld. This suggests that, despite the reforms, the system is failing. It is time for a robust debate about the radical reform of a failing SEND system of which Tribunal is a part.
[i] I interviewed seven fathers and seventeen mothers who had registered an appeal with SENDisT, during 2004-5. The study was supplemented by eight interviews with SENDisT panel members. The PhD research was funded by the Economic and Social Research Council (PTA-030-2004-00418).