Words – how a right becomes a cost

‘Grandad,’ the imaginary scene runs in my head, ‘what did you commissioning editors do in the great climate crisis and the coronavirus pandemic?’

I reply: ‘We changed the word “effect” to “affect”, and “less” to “fewer”. This we did quite a lot.’ Then I add: ‘This may not sound important my child, but I think we might as well get something right as a species.’

Words matter – their use a sort of early warning system. Rupert Jackson’s 2009 preliminary report in his Review of Civil Litigation Costs was notable, to me, for using the word ‘restitutionary’ twice in 383 pages, and the word ‘restitution’ not at all.

By the final report (584 pages) this key principle – the idea that the aim of the process was to ‘restore’ a wronged person to their previous position, had been entirely erased. Compensation was presented as just another of litigation’s ‘costs’.

And so to a klaxon currently going off above the language being used to describe the rights of children with special educational needs and disabilities (SEND). The words causing alarm are ‘materially changed the context’.

Support for children and young people with SEND is an important area of law, and especially in the context of austerity, a bruising one for disabled children’s families and carers. As a forum the First-tier Tribunal (SEND) provides a powerful and effective remedy when local authorities fail in their legal duties to assess a child, issue an Education, Health and Care (EHC) plan or make special educational provision that meets a child’s needs.

Local authorities, the Gazette reported last September, win just 8% of cases. Why do they fight such odds? Perhaps because by the time they lose, they have deterred others from a bruising fight, or even saved money overall by delaying provision.

Appropriate SEND provision is expensive, and councils are poorer than ever.

Matt Keer, parent of two deaf children whose number crunching for the respected parent-led website Special Needs Jungle revealed the amounts being spent by local authorities on legal fees fighting these cases (£40m in 2018/19), has spotted the phrase ‘materially changed the context’ popping up in important places, applied to SEND.

The Children’s Commissioner for England, Keer (@CaptainK77) points out on Twitter, has started using the phrase. Dame Rachel de Souza, a controversial appointment to the role because of her close links to the Conservative party, has written on her body’s website: ‘The pandemic’s impact on the SEND system has materially hugely changed the context that SEND local areas, schools and those supporting children and young people with SEND are now operating in.’

Then there is the answer given by the children’s minister Vicky Ford MP to a recent parliamentary question: ‘The COVID-19 outbreak has unavoidably delayed the pace of the work of the special educational needs and disabilities (SEND) Review and materially altered the context for reform.’

The phrase is there again in an article published by the Council for Disabled Children: ‘Ofsted… highlighted the impact of the pandemic on the SEND system acknowledging that the pandemic has materially changed the context the SEND system is operating in.’

There is a suspicion is that this outbreak of changed language has an aim – the aim of taking a ‘right’ and presenting it as a ‘cost’. That would be the same fate suffered by ‘restitution’ at the pen of Lord Justice Jackson.

It is speculation, but the opportunity to do so could be the Department for Education’s SEND Review. Established to look at the operation of the system since reforms in 2014, the Children’s Commissioner suggests the review should ‘reflect’ the, sing along if you know the words, ‘materially… changed context’.

The changed context, of course, is not the local authority failings argued over at the SEND Tribunal. It is money, which local authorities suddenly have a lot less of.

Why do I think this points to an attempt to water down the legal protection afforded to children and young people with SEND?

Because it is an idea that keeps being floated. When initially proposed, the 2014 reforms sought to remove legal enforceability that the predecessor ‘statements of special educational needs’ had. Campaigners managed to mount a successful defence of the relevant sections’ enforceability.

In May this year, the president of the Society of County Treasurers set the tone for debate on this, warning readers of the Municipal Journal that ‘high needs has the potential to bankrupt councils’. MJ singled out the cost of EHCPs in its report. Some head teachers of mainstream schools have also been complaining about the burden of SEND provision.

Parliament’s Public Accounts Committee has criticised DfE for giving ‘few details’ about its SEND Review. In the absence of such details, I find myself looking at the language – asking how it has materially changed, and what that might mean for a hotly contested area of the law.