Government plans to strip the Special Educational Needs Tribunal of its most significant powers are non-negotiable, the Gazette can reveal, after a government response showed it will not consider feedback on this critical aspect of its SEND reforms.
The Department for Education (DfE) appears to have reached final decisions on important parts of its reforms to change the law and support related to SEND two months before a consultation on the controversial changes closes.
The admission came in a Government Legal Department response to a letter before claim challenging the lawfulness of the consultation. The response is at odds with education secretary Bridget Phillipson’s insistence last week in a Facebook reel that ‘[t]he consultation is our way to make sure we’re hearing your views before any final decisions are made’. The consultation closes on 18 May.
The consultation set out changes intended to 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.
There are no questions in the consultation inviting participants’ views on these proposals.
The letter before claim was sent on behalf of proposed claimant Jessica Hayhurst, a child who has complex special educational needs and has an EHCP. It asked the secretary of state to publish an amended version of the consultation to ensure it provides additional information for consultees and adds specific questions on key proposed changes.
DfE has refused. Jessica’s solicitor, Rook Irwin Sweeney partner Polly Sweeney, said: ‘The secretary of state for education has now responded to our client’s letter before claim challenging the lawfulness of the SEND reform consultation. In headline terms, the education secretary’s position is that there is no duty to consult on these particular parts of the reforms (relating to the changes to tribunal powers and the shift of duty to deliver EHCPs away from local authorities to schools) in part because the decisions have already been made. Views on these issues are therefore deliberately not being sought as part of the consultation.’
Even after DfE’s response was sent yesterday, schools minister Georgia Gould MP posted a Facebook reel in which she said: ‘Your voice matters.’ Gould hailed a ‘once in a generation chance’ for reform, and urged, ‘we need to hear from you’.
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