The Department for Education is facing a legal challenge on the lawfulness of its consultation on controversial proposals to reform the special educational needs system, which include changes that affect or remove key legal rights and entitlements.
Solicitors acting for Jessica Hayhurst, a severely autistic eight-year-old, have applied to the High Court for a judicial review of the consultation. In the application public law specialist Rook Irwin Sweeney argues that the consultation fails to make it clear that the proposal would reduce existing rights and entitlements. It states that consultees are not invited to provide views on fundamental changes, and that it is unclear which proposals have already been determined.
‘There are no consultation questions on key aspects of the proposals, particularly those which would reduce existing rights and protections,’ it says.
Core proposals in the Department for Education’s consultation paper ‘SEND reform: putting children and young people first’ would end the SEND Tribunal’s power to name an education setting in education health and care plans (EHCPs). The document also envisages a shift in the legal duty to ‘deliver the educational offer in an EHCP’ from local authorities to schools. EHCPs would be reserved for the most ‘complex’ needs.
In March, lawyers acting for DfE exhibited a chaotic response to Hayhurst’s letter before action. Their first response noted that the secretary of state did not need to consult on matters where she had already made a decision (which included reforms affecting the tribunal’s jurisdiction). Then in early April, a second letter issued a ‘clarification’ stating that DfE was in fact consulting on everything, including policies with no corresponding consultation question.
Hayhurst’s solicitor, Rook Irwin Sweeney partner Polly Sweeney, said: ‘The government’s SEND reforms, if adopted, will dilute existing legal rights in many material ways including the loss of several existing rights of appeal to the tribunal, a radical reduction in the tribunal’s powers, and fundamental changes to the enforceability of rights to individualised special educational provision.’
She added: ‘Our client will argue that the Consultation has gone clearly and radically wrong to the extent it is unlawfully unfair. The legal grounds include that the Consultation is misleading as it does not make these changes clear to consultees and instead presents the reforms as maintaining and strengthening existing rights, and that there is a wholesale failure to ask questions in the Consultation as to the changes to legal rights which it envisages.’
Jessica Hayhurst is also represented by Sweeney’s colleague Beth Parr. Steve Broach KC and Eleanor Leydon of 39 Essex Chambers have been instructed. The Department for Education has not yet responded to the application.
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