To start on a personal note, I can reflect that the club – ‘parents of disabled children’ – was one I didn’t want to join, and yet was shattered to leave with the death of my daughter, aged 17, in February this year. Re-engaging with these issues at this time, I find extremely difficult.
The impetus for doing so is the way my experience, and the experience of other families I know, and for those who have them, legal advisers, is being persistently mischaracterised by the bodies that speak for local authorities, and by the Department for Education and the advisers it leans on. A pervasive language is now spoken by them in which ‘needs’ become ‘demands’, upholding of ‘rights’ translates as ‘unsustainable’, desperate parents are ‘pushy’, and councils who consistently delay assessments of children insist on their commitment to ‘early intervention’.
I am irresponsible
On 11 June, the Gazette ran a news story, which we stand by (Government eyes abolition of SEND Tribunal). I had of course contacted the Ministry of Justice (MoJ) and the Department for Education (DfE) – the MoJ with questions about the Tribunal and DfE about planned reforms to SEND.
We were quite clear in our approach to DfE. Because the role of the tribunal in SEND appeals could cease if legal rights were removed, were such proposals being considered? The preparation of a white paper on SEND reform, had been briefed, reported, and then denied by DfE.
‘It may be helpful,’ I wrote, ‘to spell out how a role for the tribunal would end. That would be in several ways under consideration:
- Limiting the ‘demographic’ of children whose needs are met in ways set out in an EHCP, and which are therefore justiciable.
- Removing from scope points which go to the tribunal as a forum for determination.
- Amending the legal duty of local authorities in this area by, for example, a shift to a principle of, say ‘best endeavours’.
- Replacement or phasing out of EHCPs.
If DfE wants to state unequivocally that none of the above is under consideration, and that all would be rejected if raised, then that is a story we would happily run.’
To recap. DfE eventually responded with a statement.
‘We do not recognise these claims and are clear that there are no plans to abolish SEND tribunals. The evidence is clear that this government inherited a SEND system left on its knees – with too many children not having their needs met and parents forced to fight for support.
‘We are actively working with parents and experts on our white paper to reform the SEND system, which will involve more early intervention to prevent needs from escalating and £740m to encourage councils to create more specialist places in mainstream schools.
‘Any changes we make will improve support for children and parents, stop parents from having to fight for support, and protect provision currently in place. As part of our Plan for Change, we will restore the confidence of families up and down the country and deliver the improvement they are crying out for so every child can achieve and thrive.’
The term that comes to mind for this statement, which we reproduced in full, is ‘carefully worded’. The future of EHCPs and legal enforcement is not touched upon. And the white paper, existence denied on 10 June, became, with a wave of a wand, something DfE was ‘actively working on’ by 7.36pm the next day.
Yet one online lawyer commentator labelled the Gazette’s coverage ‘irresponsible’.
And the commitment to ‘protect provision currently in place’ is an interesting construction, especially in light of the recent attempts at welfare reform, where an early attempt to win round rebel Labour MPs, with the promise that only future, not current, recipients of personal independence payments would face stricter criteria. That idea fell because a ‘two-tier’ system was unpalatable.
In one hour alone after the Gazette published its original story, an online petition asking ‘the government to commit to maintaining the existing law, so that vulnerable children with SEND can access education and achieve their potential’ gained 500 new signatures, and later passed 100,000, guaranteeing a parliamentary debate answered by a minister. No date has yet been set for that debate.
I know nothing
‘At the end of the day,’ one Labour MP condescended to one of his constituents who raised concerns following the Gazette’s story, ‘the Law Gazette are journalists. I have no idea why they didn’t corroborate their story with the DfE before publishing it, as I have done.’ (A summary of our DfE email chain was later forwarded to him. And as an aside, it’s always nice to see journalism attacked as fake news these days.)
This MP’s approach is insufficiently curious. It is worth sweating the detail on what we know, what DfE and its advisers have said, and what councils – so many of whose Labour councillors were swept into the Commons a year ago – are pushing for.
As the charity IPSEA, which provides legal support to children and families on special educational needs, noted on its policy blog: ‘Speculation is rife at the moment about the Government’s intentions to reform the system for supporting children and young people with SEND. This has been fuelled by comments made to journalists by the Government’s SEND adviser Dame Christine Lenehan, a new report by local authorities’ favourite consultants Isos Partnership, assorted leaks reported in the press, and confirmation that the Secretary of State for Education will publish a White Paper (a document setting out policy intentions) later in the year.’
What’s more, curiosity needs to extend to what the government is not saying, or is refusing to say, and what is being said with extreme care. Which takes this issue to 1 July, and the appearance of school standards minister Catherine McKinnell MP at the education select committee.
The committee has been working on ‘solving the SEND crisis’, and is six months into hearings. Committee chair Helen Hayes MP was shadow education minister before last year’s election, and one of few shadows who did not secure a ministerial appointment. The committee’s members are now well informed on SEND issues.
We can’t, as one lawyer pleasantly pointed out online, know what is being considered inside DfE. But the A level English lit papers the department superintends have taught many of us to read between the lines. And a close reading of McKinnell’s testimony gives rise to concerns.
Let’s give those learned English lit skills an outing.
McKinnell said the government will improve provision for children and young people in schools. But what she will not do, and the question was put in a variety of ways, is promise that the framework of legal rights and entitlements that provide families with a vital roadmap of what should be happening will be retained, or state that there will be a means of enforcing it when it does not.
Would any child or young person lose existing provision? ‘We won’t be removing any existing effective support [emphasis added],’ McKinnell said. If any readers suspect that is weaker than the line provided to the Gazette 20 days earlier, that is because it is. 11 June, we were told reforms would ‘protect provision currently in place’.
Pressed further, McKinnell said: ‘We will avoid removing effective provision that is evidence-based and is working and is delivering for children and young people.’
For anyone stuck on the iambic pentameter of all this, Sir James Cleverly MP, the committee’s newest member, pushed the matter. ‘Can I just clarify,’ he asked, ‘you’re not giving a 100% guarantee of continuity of provision?’
McKinnell replied: ‘We’re not looking to change existing provision that is working [emphasis added] for children. But obviously that’s not 100% guarantee of continuity.’ Such formulations were reprised by McKinnell's boss, education secretary Bridget Philipson MP. Interviewed by BBC journalist Laura Kuenssberg on Sunday, Philipson would not be drawn on whether EHCPs would be retained.
Ministers (all parties in government) can, and do, seek to evade the point put in oral questions. Written questions, answers drafted by civil servants can, despite the lack of despatch-box drama, be more satisfactory. It is a key pillar of the transparency of government, and an indication that the civil service works to a high standard. This I learned as an MP’s researcher from 1995-98.
But not on SEND, and not in 2025. On 27 June, Conservative MP Mark Garnier, shadow economic secretary, asked some questions. ‘To ask the Secretary of State for Education, what discussions she has had with (a) tribunal judges and (b) local authorities on the future of the SEND tribunal,’ was the first. The second was: ‘To ask the secretary of state for education, what discussions she has had with the secretary of state for justice on the adequacy of the jurisdiction of the SEND tribunal.’
McKinnell’s reply was: ‘Most education, health and care (EHC) plans and assessments are concluded without a tribunal hearing, but, increasingly, many families are having to go to tribunal to get the support they think they need. [emphasis added]
‘The special educational needs and disabilities (SEND) tribunal is an important legal backstop for cases where families disagree with a local authority about the support needed and where disagreements cannot be resolved early through collaborative early dispute resolution. The department wants to ensure we have a collaborative redress system where families and local authorities resolve disputes early, enabling children and young people to access the support they need quickly.
‘My right hon. Friend, the secretary of state for education, regularly meets cabinet colleagues to discuss SEND system improvements. We will work with government colleagues and the tribunal, to ensure the best outcomes for children and families.’
If readers can spot the section where McKinnell answers the question, then they are doing better than me.
The tribunal agrees with what parents ‘think’ to a degree in, well, somewhere north of 96% of cases. A third of cases concern failure to assess. And on ‘have a collaborative redress system’ – mediation is not a ‘system’. A ‘system’ implies a new, formal path for disputes, and the possibility of a new adjudicative method. Why use the word?
I have caused unnecessary anxiety
Why mention all this before the white paper (which didn’t exist, and wasn’t delayed, and wasn’t being prepared, but is also being ‘actively worked on’)? Why pore over the contents of reports for the Local Government Association, compiled by management consultancy Isos Partnership?
To recap, Isos’s latest report (remember, its reports are bankrolled by the LGA, and the consultancy works for local authorities), published a paper on 9 June. It envisages a new pathway to support which will see all children enter the school system through a single, mainstream route, where a failure to provide support that children need would see families appealing to the school’s governors, and then the ombudsman (not the tribunal). The report acknowledges that special schools will exist, but provides no clear route for children to enrol.
DfE opines that this is not its work. True. But you will struggle to find a policy adopted by government that was not a pre-existing idea – from academia, from think tanks, or developed by anyone from industry to unions.
(Many councils, like the LGA, have their own public affairs teams (public affairs being the polite way to describe lobbying). Their lobbying affects policy – central government is in the process of picking up some good work completed by councils on social housing policy.)
Among the new MPs swept into government by the general election a year ago are many councillors and former councillors, who may retain the mindset whereby it is SEND commitments that are unfairly threatening council finances, and who cleave to the LGA mindset whereby a reduction in SEND legal rights is necessary.
Part of this is a myth, which needs busting, is that such legal rights were an unforeseen consequence of the Children and Families Act 2014 – whereas they have existed, and been developed, over the past 40 years.
It is worth mentioning how policy is made and opposed, not least because I recall Derry Irvine, Tony Blair’s first lord chancellor, moving to take legal aid away from claims on behalf of brain damaged babies.
As a young parliamentary researcher for the Liberal Democrats, I remember the efforts and alliances that forced a retreat from much that was mooted. I remember the intense parliamentary pressure brought to bear, and the work of campaign groups and lawyers who were closely focused on the detail of proposals.
That relative success was not repeated with the Legal Aid, Sentencing and Punishment of Offenders Act in 2012. Not least, the coalition had a chilling effect on cooperation between parliamentarians, campaign groups and those directly affected by cuts.
If there really is nothing to see here but good intent, then DfE could kill interest in its SEND intentions dead with some unequivocal statements. It chooses not to do so. It provides no evidence of the courts taking wrong decisions, or evidence that children and families are securing, through the courts, provision they do not need.
The system is complex to navigate for families because rights are ignored and provision is resisted. Another path for DfE to consider, if it wants to see the number of SEND tribunal cases fall, would be to address such failings on the part of local authorities. Do that and justiciability of rights would not be front of mind for children and families.
But even then, retaining legal rights is important. Perhaps, like me, you have never needed habeas corpus. I’m just reassured it’s there – aren’t you?
Don’t just take my concerned word for it, though. There is a 100-plus signature letter in today's Guardian, setting out the concerns of knowledgeable charities, campaigners and high profile people who have experience of the SEND system who have formed a campaign group: Government faces battle over Send overhaul as campaigners voice fears | Special educational needs | The Guardian.
It is my personal tragedy that I no longer have a direct interest in special educational needs. But I cannot unsee what is being attempted here, and it seems wrong not to mention it.
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