Lawfulness of consultation that will ‘significantly weaken legal rights of children and young people with SEND and their parents’ is contested by prominent public law specialist
The government’s controversial reforms of special educational needs and disabilities (SEND) provision are facing a legal challenge. A letter before claim has been sent to education secretary Bridget Phillipson by specialist public law firm Rook Irwin Sweeney.
Proposals in Monday’s consultation document will ‘significantly weaken the legal rights of children and young people with SEND and their parents’, according to the public law solicitor leading the claim.
The consultation sets 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.
There are no questions in the consultation inviting participants’ views on these proposals.
Rook Irwin Sweeney says: ‘In addition, the consultation does not fully explain the implications of these changes, which are referenced only in the most cursory terms.’
The proposed claimant is Jessica Hayhurst, a child who has complex special educational needs and has an education, health and care plan. She attends an independent special school. Her mother, Melissa Hayhurst, is concerned that the proposed changes are likely to have a very considerable impact on parents’ appeal rights and the enforceability of EHCPs generally.
The letter asks 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.
The letter notes that while there was ‘no statutory requirement to consult in this case, once the government decided to consult on the proposed reforms to SEND, it was irrational and unfair’ to omit questions on key proposed changes to the law. Those omissions meet a legal test of ‘unfair and unlawful’, the letter says.
Polly Sweeney, partner at Rook Irwin Sweeney, said: ‘It is of real concern to our client that the consultation omits to include any questions on these important proposals which would appear to significantly weaken legal rights of children and young people with SEND and their parents.’
Melissa Hayhurst, who is known to many in the legal sector as Melissa Davis, founder of consultancy MD Communications, said: ‘When a child’s education, care and future depend on an EHCP being enforceable, these are not technical tweaks. They are life-altering decisions, and parents deserve honesty, transparency and a real voice.’
A response to the letter is requested by 4pm, 13 March. The Department for Education has been approached for comment.
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