Government SEND reform

It might have existed in some form in January 2025, have been almost published in the Spring of that year, was promised in the Autumn, but the Department for Education’s delayed white paper on reforms to education provision for children and young people with special educational needs and disabilities is finally here, the key parts of which are set out in an attached consultation document ‘SEND Reform: Putting Children and Young People First’.

It arrives two-to-four days after ministers and ex-education secretaries were making the case for reforms that journalists, parents and MPs were not allowed to see the detail of.

Do ministers mean well? Probably. But the white paper and even more significant consultation document could best be summarised thus: we mean to help you, but you’ll get what you’re given, and there is to be minimal backchat.

Polly Sweeney, partner at Rook Irwin Sweeney, says: ‘The Government’s White Paper is undoubtedly ambitious in its aims, and there is a great deal to be welcomed, but there are also many aspects of these reforms which give real cause for concern.’

She adds: ‘The consultation response talks of “the realisation of children’s rights” and “a moral mission to do our very best by each and every child in our country” and “strengthening” of legal frameworks. Yet it is very difficult to reconcile all of this with some of the central proposals which appear to significantly weaken legal rights to enforceable provision and the powers of the Tribunal.’

So let’s start with the SEND Tribunal – source of heartache and loss for local authorities England-wide (LAs lose 99%+ of cases).

DfE insists the tribunal will remain as a ‘backstop’ for rights ignored. Except it won’t. Its ability to rule is to be emasculated through a two-pronged attack on its jurisdiction.

Currently, a tribunal can determine in its judgment the educational setting in which a pupil with an education health and care plan (EHCP) will have their needs met.

No more. In the words of the government’s consultation: ‘The Tribunal will consider whether the local authority’s decision is reasonable; if they find against the local authority, they can quash the original decision and order the local authority to reconsider. However, the Tribunal will not name the placement for the child.’

Sweeney’s assessment is that ‘the powers of the SEND Tribunal as decision-maker are proposed to be significantly weakened’.

The paper also states that government will amend ‘the current legal exception related to incompatibility with the “provision of efficient education for others” so that LAs are not required to name a school or setting in an [education health and care plan] where it is already full’.

That is a loss for SEND campaigners, and a tragedy for pupils whose education setting is being contested because it isn’t working. What is more, the inability of the Tribunal to name a setting may leave a pupil with no school place.

Solicitor Ed Duff, education law specialist at HCB Solicitors, explains: ‘I am… very seriously concerned about the suggestion on the appeal rights being limited – in terms of placement cases – to a requirement to reconsider. If that becomes law, we’re going to see a rapid return to the Administrative Court handling hundreds of SEN cases through judicial review.’

‘Proposed reforms to the SEND appeal process represent a fundamental change that will have a profound impact on parents and schools,’ says Philip Wood, principal associate at UK and Ireland law firm Browne Jacobson. ‘While existing tests weigh the decision in favour of parents, who can argue against the specific school their child is allocated by a local authority, the SEND Tribunal will simply decide whether a local authority’s decision is reasonable under the suggested changes.’

He adds: ‘In those circumstances, it will still be down to the council to reconsider its decision, with the Tribunal no longer deciding the placement. But given that more than 60% of SEND appeals at least partly relate to placement, parents may view this as a significant downgrade of their legal rights.’

And in any case government has decided that far, far fewer pupils have an EHCP – the second prong in the attack on the tribunal’s jurisdiction. What will be introduced is three ‘layers’ (in government leaks, these were termed ‘tiers’).

If a pupil needs more than the ‘universal offer’ in education (let’s call it the bog standard), they might receive, seemingly at the say-so of their school, ‘targeted support’, ‘targeted plus’ or ‘specialist’.

‘Targeted’ pupils are supposed to get support for ‘ongoing and commonly occurring needs which cannot be met by the universal offer’.

‘Targeted plus’ pupils will have an individual support plan (ISP) which ‘may include time-limited support on an alternative setting’.

On this Sweeney says: ‘There may be no right of appeal for school-produced Individual Support Plans (ISPs) which will set out the detailed day-to-day educational provision a child or young person needs. It is also not clear whether a school-produced Individual Support Plan would be legally enforceable in the event provision is not secured for a child in the same way as an EHCP.’

Only those in the specialist support category will qualify for an EHCP, though it is unclear who or what will place a pupil in this category.

Here, DfE says, ‘New nationally defined “Specialist Support Packages” designed by experts, based on evidence…’ will be available.

Throughout the white paper’s SEND consultation document, the words ‘expert’ and ‘evidenced based’ are leant on heavily. It points to an intention to decide, centrally, categories and levels of support being dependent of the view of a single controlling mind.

And there are contradictions. DfE says it will ‘move away from the increased reliance on diagnosis’ in setting support. Yet experts will allow it to categorise and define support levels for ‘commonly occurring’ conditions. For which you can read, and I simplify only a little, autism and ADHD.

Even with the specialist category, DfE talks of ‘packages’ for ‘children and young people with similar needs, including their characteristics… and the resources required’.

Sweeney’s assessment is: ‘Specialist Provision Packages (forming the basis for future EHCPs) may be “nationally-defined” and limited, thereby suggesting they, giving rise to real risk that they may not be led by the individual needs of the particular child or young people.’

In the round, Sweeney concludes: ‘Building an inclusive mainstream education system is an aspiration that most of us would agree with, but what happens when this (inevitably) isn’t realised for a particular child?’

For parents to have confidence in these reforms, she adds, ‘they need to know that if something goes wrong, if their child doesn’t get the right the support, or if the placement being proposed for their child won’t meet their needs, that they have enforceable legal rights and effective rights of redress which include the Tribunal. These rights shouldn’t be reserved only for the most complex children with EHCPs who attend specialist provision – that is not doing our very best by each and every child’.