Consultation on a change to the rate of appeal to the Special Educational Needs and Disability Tribunal
Source: data.gov.uk (2018-05-25)

Tribunals and Gender Recognition Statistics. The bulletin presents the latest statistics on type and volume of tribunal cases received, disposed of and outstanding and the number of Gender Recognition Certificates applied for and granted.  

The bulletin focuses on information on receipts (i.e. cases received by HMCTS), the outcome of cases by category (e.g. cases disposed of at hearing) and the caseload outstanding (snapshot of live cases at a specific point in time) for the three largest tribunals: Employment, Immigration and Asylum, and Social Security and Child Support. Additional data are available on timeliness, jurisdiction, Employment Tribunal fees, smaller tribunals, Employment Appeal Tribunal and regional receipts for the Employment Tribunal (management information). 

Annual data are published as follows:
* Employment Tribunal and Employment Appeal Tribunal annual statistics are published in September; these include information on representation of claimants, compensation and costs awarded in the Employment Tribunal for the financial year.
* Data from the Special Educational Needs and Disability tribunals covering the academic year are published in December. Further breakdowns include information on the number of appeals registered by type and nature of special education need, and outcomes.
* The number of adjournments and postponements by jurisdiction are published annually in June, along with the number of judicial salaried and fee-paid sittings by jurisdiction.

In addition to monitoring tribunal workloads and timeliness, they are used to assist in the development, monitoring and evaluation of tribunal related policy in collaboration with other Government departments, e.g. DWP, BEIS and Home Office.

Consultation on a change to the 
rate of appeal to the Special 
Educational Needs and Disability 
Tribunal 
 
 
 
This consultation begins on 14 December 2017 
This consultation ends on 9 February 2018 
 
 
 
 
 
 
 
 

2 
 
About this consultation 
 
To:  
All persons with an interest in SEND 
Tribunals and appeals made to them. 
Duration:  
From 14 December 2017 to 9 
February 2018  
Enquiries (including requests for the 
paper in an alternative format) to:  
Matthew Funnell 
Ministry of Justice  
7th Floor 102 Petty France London 
SW1H 9AJ  
Email: xxx@xxx.xx  
How to respond:  
Please send your response by 9 
February 2018 by completing the    
on-line survey at: 
https://www.surveymonkey.co.uk/r/8H
ZCXJS 
 
or send to: 
 
Matthew Funnell  
Post Point 7.02  
Ministry of Justice  
102 Petty France London SW1H 9AJ  
 
Or email it to:  
xxx@xxx.xx  
Response paper:  
A response to this consultation 
exercise is due to be published in 
March 2018 alongside the Tribunal 
and Gender Recognition Certificate 
Statistics publication on the Ministry of 
Justice website at www.justice.gov.uk 
 
 
 
 
 
 
 
 
 
 
 
 

3 
 
This consultation paper sets out proposals for changes to the Ministry of Justice’s Special 
Educational Needs and Disability (SEND) statistics for England and Wales.  
The consultation falls within the scope of the Code of Practice on Consultation and follows 
the seven consultation criteria set out at the end of this consultation.  
This paper has been released alongside the Tribunals and Gender Recognition Certificate 
Statistical Bulletin to open a consultation with stakeholders. 
 
 
 
 

4 
 
Introduction 
Existing appeal rates  
The Tribunals and Gender Recognition Certificate Statistics Quarterly bulletin1 publishes 
data annually in December on rates of appeal to the SEND tribunal, within the annual 
SEND tribunal tables. The number of appeals to the SEND tribunal is published 
quarterly. 
 
There are two purposes for the publication of the rate of appeals, in addition to the 
number of appeals: 
 
• 
It enables comparisons over time to consider the impact of changing population 
on number of appeals registered. 
• 
It enables comparison between Local Authorities to allow for their different 
sizes. 
The current rate is calculated as:  
𝑁𝑢𝑚𝑏𝑒𝑟 𝑜𝑓 𝑎𝑝𝑝𝑒𝑎𝑙𝑠 𝑟𝑒𝑔𝑖𝑠𝑡𝑒𝑟𝑒𝑑 𝑤𝑖𝑡ℎ 𝑆𝐸𝑁𝐷 𝑡𝑟𝑖𝑏𝑢𝑛𝑎𝑙
𝑆𝑐ℎ𝑜𝑜𝑙 𝑝𝑜𝑝𝑢𝑙𝑎𝑡𝑖𝑜𝑛
 
and is presented for each Local Authority as a rate based on the overall number of 
children in schools, i.e. ‘per 10,000 of the population in all schools based on the January 
school census. 
In the academic year 2016/17, 4,700 appeals were registered with the SEND tribunal, 
and the rate of appeals was 5.5 per 10,000-school population. 
 
Figure 1: Registered appeals to the SEND tribunal and associated rate of appeal 
 
                                               
1 https://www.gov.uk/government/collections/tribunals-statistics 
3,016
3,280
3,562
3,557
3,602
4,069
3,147
3,712
4,725
3.7
4.1
4.4
4.3
4.4
4.9
3.7
4.3 
5.5 
0
500
1,000
1,500
2,000
2,500
3,000
3,500
4,000
4,500
5,000
2008/09
2009/10
2010/11
2011/12
2012/13
2013/14
2014/15
2015/16
2016/17
Registered appeals
Appeals per 10,000 school population
Registered SEND appeals and rate per 10,000:  2008/09 to 2016/17
Source: Ministry of Justice Tribunals data

Consultation on SEND Tribunal Appeal statistics 
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Policy change and expected impact on appeal rates  
The Special Educational Needs and Disability (SEND) reforms set out in the 
Children and Families Act 2014 (the 2014 Act), include the replacement of 
Statements of SEN and Learning Difficulty Assessments (LDAs) with person-
centred Education, Health and Care (EHC) needs assessments and plans. This 
extended the coverage of support, across education, health and social care to 
ensure that each of the services were organised with the needs and preferences 
of the child and their family firmly at the centre, from birth up to the age of 25. 
Education, Health and Care (EHC) plans are legal documents that set out the 
education health and social care support a child or young person with SEND 
requires when their needs cannot be met by resources available to mainstream 
early years providers, schools and post-16 institutions. They are focused on the 
outcomes the child or young person wants to achieve and set out how the 
services will work together to support those outcomes.  
 
The number of families who can register an appeal with the SEND tribunal has 
increased as a result of the extension of EHC plans to those aged 0-25 (with 
certain additional criteria attached to the upper age group) where previously 
statements of SEN covered only school aged children and those in the early 
years; the granting of appeal rights to young people themselves and those in 
custody; and in the short term because the transfer process from SEN 
statements and Learning Difficulty Assessments (LDAs) to EHC plans has 
opened up new opportunities to appeal.  
 
The SEND reforms are specifically designed to make the support system less 
adversarial. A review was undertaken to assess how well the disagreement 
resolution arrangements established under the Children and Families Act 2014 
are working for children and young people with SEND and their families. The 
outcome of the review was published2 on 29 March 2017 and suggested we 
amend the appeal rate. 
 
As mentioned above, the rate of appeal currently is calculated from the number 
of appeals registered with the SEND tribunal per year and shown as a rate per 
10,000 of the school population.  
 
Only certain local authority decisions regarding EHC plans can be taken to the 
SEND Tribunal.  Even with an appeal rate that includes the eligible age range for 
the whole population in the denominator, most of this population would not 
actually be able to make an appeal. One of our suggested measures takes a 
different approach to considering the appeal rate and looks at the rate based on 
the eligible opportunities to appeal, rather than the age of the cohort. 
 
 
 
                                               
2 https://www.gov.uk/government/publications/send-disagreement-resolution-
arrangements-in-england-review 

Consultation on SEND Tribunal Appeal statistics 
6 
 
The case for change  
The Ministry of Justice and Department for Education have been monitoring the 
increase in appeals in relation to those aged 0-5 and 16-25 to assess whether or 
not the expected increase in appeals has materialised. 
 
The table below shows the percentage of registered appeals by age of appellant 
– this clearly demonstrates an increasing trend in the percentage of appeals 
made by ‘out of age’ appellants, particularly those aged post-16.  In 2016/17, 
appeals from those aged post-16 accounted for 12% of registered appeals – this 
proportion has increased year on year from 1% in 2013/14. Appeals for those ‘out 
of age’ accounted for almost a fifth of all appeals in 2016/17. 
 
Table 1: Percentage of registered appeals by age of appellant  
Academic year 
Age Range 
 
 
0-5 
5-16 
Post-16 
2013/14 
10% 
89% 
1% 
2014/15 
10% 
85% 
5% 
2015/16 
8% 
81% 
11% 
2016/17 
7% 
81% 
12% 
 
As a consequence, we are now considering how best to calculate rates of appeal 
to take into account a wider population and the decisions that are eligible for 
appeal whilst making sure these rates fit coherently alongside existing rates for 
previous years, thereby providing a comparable time-series of SEND tribunal 
appeal rates.  
 
How to respond 
The options presented within this consultation aim to achieve a significant 
improvement in terms of delivering: 
• 
Relevant, accurate and reliable measures of appeal rates, following 
extension to cohort now able to appeal decisions at the tribunal and the actual 
opportunities to appeal; 
• 
Coherence:  utilising data that are from established and related sources, 
and fulfil other stated criteria;  
• 
Timely information: producing data frequently enough to track progress, 
and quickly enough for the data to still be useful, ideally representing up-to-date 
and equivalent reporting periods as the underlying data reported each 
publication;  
• 
Comparability: facilitating comparison over time with previous and future 
annual rates, and allowing for geographic comparisons (across Local 
Authorities); and 

Consultation on SEND Tribunal Appeal statistics 
7 
 
• 
Accessible and clear methodology and rates that can be understood and 
are meaningful to stakeholders and customers.  
 
Views are invited from all users of SEND tribunal statistics. In order to ensure we 
can develop these proposals and publish statistics in a timely fashion, please 
provide a response to this consultation by 9 February 2018. 
 
 

Consultation on SEND Tribunal Appeal statistics 
8 
 
Proposals for changes to the rate of appeal 
Four potential options are suggested for how rates of appeal could be calculated 
and presented in future.  Summary information for each option are presented 
below and further analysis of the data coverage and limitations of each option are 
presented at Annex A. 
Option 1: No change - keep rate expressed as per 10,000 of school 
population 
Despite the increase seen in appeals from ‘out of age’ appellants, the majority of 
appeals are lodged by those within the school population.  Retaining the school 
population denominator as the basis for the rate calculation would continue to be 
appropriate for the majority of those lodging appeals. However, this doesn’t 
reflect the wider coverage of those able to appeal following the SEND reforms.  
Using population figures gives us an idea of how school population changes may 
affect the rate, however not all pupils in schools are eligible to appeal, only those 
with special educational needs who are appealing certain decisions by Local 
Authorities regarding EHC plans. 
Impact of no change: 
Not consistent with and does not reflect policy changes. 
 
Option 2: Extend current school population figures with early years and 
further education figures 
This option is very similar to option 1 in that it continues to use the current school 
population, but also captures data for early years (EY) and Further Education 
(FE) populations. 
 
𝑁𝑢𝑚𝑏𝑒𝑟 𝑜𝑓 𝑎𝑝𝑝𝑒𝑎𝑙𝑠 𝑟𝑒𝑔𝑖𝑠𝑡𝑒𝑟𝑒𝑑 𝑤𝑖𝑡ℎ 𝑆𝐸𝑁𝐷 𝑡𝑟𝑖𝑏𝑢𝑛𝑎𝑙
𝐸𝑎𝑟𝑙𝑦 𝑌𝑒𝑎𝑟𝑠+ 𝑆𝑐ℎ𝑜𝑜𝑙+ 𝐹𝑢𝑟𝑡ℎ𝑒𝑟 𝐸𝑑𝑢𝑐𝑎𝑡𝑖𝑜𝑛 𝑝𝑜𝑝𝑢𝑙𝑎𝑡𝑖𝑜𝑛𝑠 
 
However, this option has a number of limitations: 
 
• 
The EY data covers a sub-section of the population that the SEND 
reforms extend to: 
o it covers those in funded places for 2, 3 and 4 year olds so doesn’t give 
complete coverage of the extended age range 
o it will duplicate data for schools where early years places are in school 
provision – additional work would be required to take account of this 
overlap. 
o there is a lack of coverage of those aged under 2 years old given that 
the reforms covers all those from birth. 
 
• 
The availability of FE data does not fit the current publication schedule for 

Consultation on SEND Tribunal Appeal statistics 
9 
 
the Tribunal and GRC statistics quarterly release e.g. the Local Authority level 
data for 2014/15 was published in April 2016.  This option would therefore require 
using the previous years’ cohort data as proxy for current year.  
 
• 
The FE data at LA level is available for the following age groups ‘under 
19’ and ‘19+’ – only the first of these could be used as the second will include all 
older age groups so wouldn’t be appropriate.  However, the first of these would 
not completely reflect the group covered by the SEND reforms, adding only those 
16-18 year olds in FE colleges and sixth form colleges onto existing school 
populations.  
 
Impact of change: 
This option gives a close fit to the current rate based on school population – 
although this will be because the school population will make up the majority of 
the denominator and adding EY and FE has extended the range to cover 2-5 and 
18-19 year olds – which make up a smaller proportion of SEND appeals. 
 
Option 3: Use population estimates from ONS mid-year estimates 
Data available from the Office for National Statistics (ONS) allows for populations 
to be constructed to cover the required age ranges – three options are presented 
which cover the extended SEND appeal cohort to varying degrees. 
• 
Option 3.1 ONS mid-year estimates 5-15 
• 
Option 3.2 ONS mid-year estimates 0-18 
• 
Option 3.3 ONS mid-year estimates 0-25 
ONS mid-year population estimates are published annually in June – the data 
published in June 2017 relates to mid-2016, and could be used as the 
denominator for the appeals registered during the 2016/17 academic year.  
Population estimates are also published at Local Authority level.  
Table 2 shows the impact of using each option for the ONS mid-year population 
estimate.   
 

Consultation on SEND Tribunal Appeal statistics 
10 
 
Table 2: Appeal rates based on differing population definitions 
 
Registered 
appeals 
Appeals rate (per 10,000) 
Current rate: 
school 
population 
 
Population 
aged 5-15 
Population 
aged 0-18 
Population 
aged 0-25 
2008/09 
3,016  
3.7 
 
4.5 
2.5 
1.8 
2009/10 
3,280  
4.1 
 
4.9 
2.8 
2.0 
2010/11 
3,562  
4.4 
 
5.3 
3.0 
2.1 
2011/12 
3,557  
4.3 
 
5.3 
3.0 
2.1 
2012/13 
3,602  
4.4 
 
5.3 
3.0 
2.1 
2013/14 
4,063  
4.9 
 
6.0 
3.3 
2.4 
2014/15 
3,147  
3.7 
 
4.6 
2.6 
1.8 
2015/16 
3,712 
4.3 
 
5.3 
3.0 
2.1 
 
There are also limitations to this approach: 
• 
Comparisons with earlier years are limited – ONS estimates are based on 
where an individual lives rather than where they attend school, thereby 
introducing inconsistencies with the previous rate calculation. However, there is 
an argument that this would better reflect the relevant population, as parents and 
young people would register an appeal in their home LA which would be 
responsible for their EHC plan. 
 
• 
Using a population estimate to cover all those aged 0-25 include those 
young people in higher education and outside of education i.e. individuals not 
eligible to apply for SEND appeals – which will produce under reported rates. 
Impact of change 
All of these options have an impact on the rate as an appeal can only be made 
regarding certain Local Authority decisions in respect of EHC plans, and 
therefore only a small number of pupils are eligible.  There are also limitations 
specific to each of the options: 
Option 3.1: over reports the rate of appeals 
Demonstrated by comparing 5-15 year olds with school population – this option 
reduces the denominator as the school population would have included those 
pupils in schools who are under 5 and post-16 in schools. (see Table 2 above).  
 
Option 3.2: under reports the rate of appeals 
Will include population in FE, but also those who left education post-16 and are 
now in employment. However, data for future years will cover all those in 
compulsory education following age rise to 183. 
 
 
                                               
3 https://www.gov.uk/government/publications/2010-to-2015-government-policy-young-
people/2010-to-2015-government-policy-young-people  

Consultation on SEND Tribunal Appeal statistics 
11 
 
Option 3.3: significantly under reports the rate of appeal  
Will include post-16 and still in FE, but also those in HE or employment. This 
option overcounts the cohort which appeals are applicable to, reducing the rate 
significantly. 
All three options have limitations in accurately reflecting the coverage of the 
cohort now covered by the policy reforms. However, our preferred option of the 
three available for option 3 is to use 0-18 population estimates - this would 
extend the population to cover 0-5, retain the school population, as well as 
account for the extension to compulsory education to 18-year olds (raised from 
16 in 2015).  
This would cover the majority of the cohort eligible to lodge an appeal, but there 
is the potential for the appeal rate to be artificially inflated as the denominator of 
the calculation would fail to include those aged 19-25. 
Option 4: New rate based on appealable decisions 
Research carried out by the Centre for Educational Development, Appraisal and 
Research (CEDAR) on behalf of DfE and MoJ reviewing arrangements for SEND 
disagreement resolution4 suggested an alternative to the existing rate of appeal 
and presents the number of appeals as a percentage of all instances where an 
appeal would be possible. It uses the annual SEN2 data collected from LAs and 
published by DfE.  
The information collected in the SEN2 return is the only source of data on all 
statements of special educational needs (SEN) and education, health and care 
(EHC) plans maintained by individual local authorities. The SEN2 return is 
mandatory for all local authorities and collects aggregate local authority level 
information on children with statements of SEN or EHC plans.56  
The SEND Tribunal considers and decides appeals against LA decisions 
regarding EHC needs assessments and plans. This includes decisions regarding 
refusal to carry out an EHC needs assessment or reassessment, refusal to issue, 
maintain or amend an EHC plan, the description of a child or young person’s 
SEN in an EHC plan, the special educational provision specified in the plan, the 
school or other institution named or that no school or other institution has been 
specified. 
                                               
4 SEND disagreement resolution arrangements in England: review: 
https://www.gov.uk/government/publications/send-disagreement-resolution-
arrangements-in-england-review  
5 Further details on the SEN2 collection can be found at the SEN2 collection webpage: 
https://www.gov.uk/guidance/special-educational-needs-survey  
6 Latest published SEN2 data is available here: Statements of SEN and EHC plans: 
England, 2017 https://www.gov.uk/government/statistics/statements-of-sen-and-ehc-
plans-england-2017  

Consultation on SEND Tribunal Appeal statistics 
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The total number of ‘appealable decisions’ can be calculated as: 
• 
Number of initial requests for assessments refused (appeals against 
decisions regarding refusal to carry out an EHC needs assessment) 
• 
Number of assessments completed and decision made not to issue plan 
(appeals against decisions regarding refusal to issue an EHC plan) 
• 
Number of new EHC plans issued during the year (appeals against the 
content of plan – decisions regarding the description of a child or young 
person’s SEN in an EHC plan, the special educational provision specified 
in the plan, the school or other institution named or that no school or other 
institution has been specified) 
• 
Number with an EHC plan as at January each year (appeals following an 
annual review – decisions regarding refusal to carry out an EHC needs 
reassessment and refusal to amend an EHC plan) 
• 
Number of EHC plans ceased because the special educational needs of 
the child or young person are being met without a statement or EHC plan 
(appeals against decisions regarding refusal to maintain an EHC plan) 
 
This option is very different from the three options considered above in that it 
provides an alternative rate reflecting the actual opportunities to appeal, rather 
than adapting the existing rate calculation to better reflect the change in 
population. As a result, it is not possible to measure the impact of the change on 
existing rates – we have, however, looked at how a rate based on appealable 
decisions would impact on local authorities.  Annex B shows how appeal rates for 
individual local authorities compare under each of the options proposed. 
Calculation of an appeal rate based on all appealable decisions will allow us to 
identify the percentages of appealable decisions that are appealed and so might 
more accurately reflect the rate of appeal and how satisfied families are with the 
decisions made. 
Calculation of an appeal rate based on all appealable decisions does have a 
drawback in that SEN2 data is not available to a timetable that would enable 
publication in December, alongside the existing Tribunals and GRC statistics 
quarterly bulletin. The appeal rate would need to be changed to a calendar year 
appeal rate (as SEN2 is collected on this basis) rather than an academic year 
appeal rate. As a result, publication of SEND rate of appeal data would need to 
be in June - we are asking users as part of this consultation for their views on 
whether or not this should impact on the publication schedule for the annual 
SEND tribunal statistics.  Data currently published on a quarterly basis, i.e. 
receipts, disposals and caseload outstanding, would remain unaffected. 
 

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Summary of options and recommendation 
Figure 2 below shows the rates for each option presented above for the last two 
academic years, since the introduction of the SEND reforms in September 2014. 
 
Figure 2: Comparison of options considered within consultation
 
Based on the analyses carried out during the development of the consultation, 
our preference is to present a new rate based on all appealable decisions 
(option 4) subject to feedback from users in response to this consultation. 
However, this has an impact on the timing of the publication of the rate of appeal 
– currently this is published in December each year alongside the annual SEND 
tribunal statistics, which are published on academic year basis.  Due to the 
availability of SEN2 data on which the new rate will be based, we will be unable 
to publish the new rate until June of the following year.  Users are asked 
specifically for their views on the impact to the publication timetable and 
associated data coverage, summarised in Table 3 below. 
 
 

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14 
 
Table 3: Timing and data coverage of proposed options 
 
Option 
Reporting basis 
Data available 
Timing 
Option 1: current rate - school population 
Academic year 2017/18 
June 2018 
December 2018 
Option 2: school population + EY + FE 
Academic year 2017/18 
June 2018  
(school + EY) 
January 2019  
(FE) 
March 2019 
Option 3: ONS mid-year population estimates 
Academic year 2017/18 
June 2018 
December 2018 
Option 4: new rate based on all appealable decisions 
Calendar year 2017 
May 2018 
June 2018 
 
 

Consultation on SEND Tribunal Appeal statistics 
15 
 
Questionnaire 
We would welcome responses to the following questions: 
 
Q1:  
Do users agree that there is need to change and/or augment existing 
appeal rates to the SEND tribunal due to recent policy changes? 
 
Q2:  
Do users agree with the recommendation that we discontinue the 
existing rates and publish a new rate based on all appealable decisions 
(Option 4)? 
 
 
 
 

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16 
 
Q3: Moving to a new rate based on all appealable decisions will impact on 
the coverage of and publication timetable for rates of appeal.  Do you have 
any feedback on the required changes to reporting i.e. moving to calendar 
year basis and publishing in June each year, rather than the preceding 
December? 
 
 
Q4:  
Do you think that this change to reporting should also be applied to 
the annual SEND tribunals statistics or should we continue to publish these 
in December each year as currently listed with the statistical release 
calendar to ensure timely and orderly release? 
 
 
 
 
 
 
 
 
 
 
 
 

Consultation on SEND Tribunal Appeal statistics 
17 
 
Q5:  
Do users have an alternative option not covered by this 
consultation? 
 
Q6:  
Are there any additional comments you would like to make in 
relation to this consultation or on the SEND Tribunal publication chapter in 
general? 
 
 
 
 
 
 
 
 
 
 
 
 

Consultation on SEND Tribunal Appeal statistics 
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About you  
Please use this section to tell us about yourself  
Full name 
Job title or capacity in which you are responding to this 
consultation exercise (e.g. member of the public etc.)  
Date  
Company name/organisation (if applicable):  
Address  
Postcode  
If you would like us to acknowledge 
receipt of your response, please tick this 
box  
(please tick box)  
Address to which the acknowledgement should be sent, if different 
from above  
 
If you are a representative of a group, please tell us the name of the group and 
give a summary of the people or organisations that you represent.  
 
Thank you for taking part in this consultation. 
 

Consultation on SEND Tribunal Appeal statistics 
19 
 
Annex A: Data availability/timing and limitations 
 
Data coverage 
Availability/ timing 
Limitations 
School population (current denominator) 
School population only – includes Post-16 learners 
and under 5s in schools. 
Pupil numbers published 
annually in June for that 
academic year i.e. January 
2017 school population 
published June 2017. 
• 
Does not cover full eligible population for SEND 
tribunals. The impact of this is not expected to be 
consistent across LAs as some LAs have smaller numbers 
Post-16 in schools. 
• 
LA level data here is based on school LA rather 
than home LA which is where the appeal is more likely to 
be registered. 
• 
The rate is based on population rather than 
appealable decisions so most of the population would not 
be eligible to appeal. 
School population + Funded early years population + Funded further education participants 
This option expands the school population to cover: 
2, 3 and 4 year olds in funded provision, and under 
19s in further education in funded provision. 
Pupil numbers and early 
years’ population numbers 
published in June for that 
academic year i.e. January 
2017 numbers published June 
2017. 
 
Latest FE data at LA level 
based on 15/16 academic 
year was published in January 
2017 but next update not 
confirmed. 
• 
Data available from different sources at different 
times and FE data timings irregular. 
• 
Different data sources have different reference 
points – school and early years data based on numbers at 
census date in January, FE data based on participants 
during academic year. 
• 
FE data published based on ‘under 19s’ or ‘over 
19s’. Ideally, we would want numbers of funded learners 
participating in FE under 25.  
• 
These sources cover those in funded provision 
only, which wouldn’t completely cover the eligible 
population for tribunals. 
• 
We would need to ensure early years data doesn’t 
overlap with school data – figures for schools should not 
be included twice.  

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Data coverage 
Availability/ timing 
Limitations 
• 
LA level data here is based on school LA rather 
than home LA which is where the appeal is more likely to 
be registered. 
• 
The rate is based on population rather than 
appealable decisions so most of the population would not 
be eligible to appeal. 
ONS population estimates 
Data available for individual ages so can define 
coverage to suit: we could use 0-25s age group to 
match definition of SEND reforms however, 0-18s 
age group may be better as Higher Education not 
included in SEND reforms, which affects LA 
comparisons.  
Mid-year population estimates 
published each June for 
previous year i.e. Mid-2016 
population estimate published 
June 2017. 
• 
This option means more of a change compared to 
the current denominator. This has more of an impact on 
some LAs e.g. City of London. 
• 
Timing of data availability may mean change in 
timing of annual release. 
• 
A decision would need to be made about which 
age range to use and all would have limitations. Although 
0-25 age range would cover all population under SEND 
reforms, at LA level there would be an impact of HE 
migration on numbers, which would be an issue as HE not 
included in SEND reforms (only FE). The 0-18 age group 
would not suffer from impact of HE migration but wouldn’t 
cover full eligible population (although numbers 19+ are a 
lot smaller – currently 3% of the total with a statement or 
EHCP).  
• 
The rate is based on population rather than 
appealable decisions so most of the population would not 
be eligible to appeal. 
‘Appealable decision’ using SEN2 data 
This rate was suggested in research carried out by 
CEDAR on behalf of DfE and MoJ on disagreement 
Data is published annually in 
May based on the previous 
calendar year 
• 
This option is very different to the other options 
considered, whereas the others sought to amend the 
denominator to become a better fit with the new eligible 

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21 
 
Data coverage 
Availability/ timing 
Limitations 
resolution7 and presents the number of appeals as 
a percentage of all instances where an appeal 
would be possible. It uses the annual SEN2 data 
collected from LAs and published by DfE.  
The total number of ‘appealable decisions’ is 
calculated as: 
Number of initial requests for assessment refused  
+ Number of assessments completed and decision 
made not to issue EHC plan  
+ Number of new EHC plans issued during the year  
+ Number of EHC plans ceased because the 
special educational needs of the child or young 
person are being met without a statement or EHC 
plan  
+ Total number of statements or EHC plans in the 
system (minus newly issued to avoid double 
counting) to take into account opportunities to 
appeal following annual reviews 
population, this option changes the interpretation of the 
appeals rate and considers, at national and LA level, the 
percentage of appeals per appealable decision. 
• 
Due to the availability of the SEN2 data, if we were 
to use this option there would be an impact on the timing 
of the annual release and we would need to move from 
presenting the rate based on an academic year to a 
calendar year to align with the data collection period for 
the SEN2 return. 
 
 
 
 
                                               
7 SEND disagreement resolution arrangements in England: review: https://www.gov.uk/government/publications/send-disagreement-resolution-arrangements-in-
england-review  

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Annex B: Comparison of Local Authority appeal rates 
 
Tribunals rates are presented at national and local authority (LA) level, and LA 
level figures enable comparisons across LAs. However, the impact of changing 
the method for calculating the appeal rate varies by LA, either because their 
composition of schools is different or because their SEN provision is set up in a 
different way. 
Figure B1 compares the appeals rate based on the current presentation and the 
alternative which also includes funded early years and further education, 
because this calculation is dominated by the school population it is very similar to 
the existing rate and there are no outlier LAs. 
Figure B1 – option 1 vs option 2 
  
 
 

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Figure B2 presents the comparison with the appeals rate based on ONS 
population estimates (aged 0-18); there is still a very close relationship here, 
although there is one outlier in City of London LA, which may be due to the 
change from looking at where the pupil lives rather than where the pupil goes to 
school. 
Figure B2 – option 1 vs option 3
Figure B3 presents the rate based on ‘appealable decisions’ compared with the 
existing appeal rate based on the school population. Here the relationship 
between the rates is not as strong and there are a few outliers; City of London, 
Newham and Kensington and Chelsea, which may be due to the set-up of their 
SEN provision, and again the change from looking at where the pupil lives rather 
than goes to school. 
Figure B3: Option 1 vs option 4 
 

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Annex C: Data Sources 
 
• 
Tribunals statistics: https://www.gov.uk/government/collections/tribunals-
statistics  
• 
Schools, pupils and their characteristics: January 2016: 
https://www.gov.uk/government/statistics/schools-pupils-and-their-
characteristics-january-2016  
• 
Education provision: children under 5 years of age, January 2016: 
https://www.gov.uk/government/statistics/education-provision-children-
under-5-years-of-age-january-2016  
• 
FE data library: further education and skills: 
https://www.gov.uk/government/statistical-data-sets/fe-data-library-further-
education-and-skills  
• 
Population Estimates for UK, England and Wales, Scotland and 
Northern Ireland: mid-2015: 
https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigr
ation/populationestimates/bulletins/annualmidyearpopulationestimates/mid2
015  
• 
SEN2 publication: ‘Statements of SEN and EHC plans: England, 2017’: 
https://www.gov.uk/government/statistics/statements-of-sen-and-ehc-plans-
england-2017  
 
 

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Consultation co-ordinator contact details  
Responses to the consultation must go to the named contact under the 
How to Respond section.  
However, if you have any complaints or comments about the consultation 
process you should contact the Ministry of Justice consultation co-ordinator at 
xxx@xxx.xx  
Alternatively, you may wish to write to the address below:  
Ministry of Justice Consultation Co-ordinator Legal Policy Team, Legal 
Directorate 6.37, 6th Floor 102 Petty France London SW1H 9AJ