WHAT THE EXPERTS SAY....
SEND REFORMS: A STEP BACKWARDS
Comment by SAMANTHA HALE, Education Lawyer at HCB Widdows Mason
T
he contents of the Schools White Paper and SEND Reform Consultation confirms what we have feared would happen: that the proposals would seek to weaken the current SEND system and rights of enforceability and appeal. The changes acknowledge the current system isn’t
working but seek to blame the system and the previous government for this failure rather than LA’s failures to comply with it, which is the real reason why the current system is not working. The proposals would bring about a 3 tiered support system of Targeted Support, Targeted support + and EHCPs, with EHCPs being reserved for the more complex SEND cases. This isn’t too dissimilar to the support tiers under the old SEND support system where we had School Action, School Action + and Statements of SEN, which was scrapped by the Children and Families Act 2014, in favour of the current system, because the old system was also deemed to be broken and not working. Therefore, this proposal feels like taking a step backwards and not forwards, and that the government has failed to learn lessons from the past.
One big change and one that is a positive is the suggestion that all children with SEND will get an Individual Support Plan (ISP), this seems to be similar to Individual Education Plans (IEP) which we currently have, but with one difference – schools will have a statutory duty to create and monitor ISPs, which is not the case with IEPs. Whilst this is positive, it is likely that under the proposed changes, that children currently in receipt of an EHCPs will no longer be entitled to them under the old system, as the proposals indicate the legal test for an EHCP will set a higher threshold. This is very concerning and is clearly an attempt by the government to cut costs by reducing the number of children who have EHCPs. This is unacceptable. In the Schools White Paper the government admits that mainstream schooling is not suitable for all children. Yet its plans rest heavily on more children staying in mainstream schools which for a lot of children a mainstream simply isn’t suitable, and risks isolating the child further, which the White Paper states they are seeking to avoid. It proposes additional resources and training for this, but also states ‘we are not asking teachers to teach differently or work harder’. This one line demonstrates a complete failure of the government to realise that actually SEND children may need to be taught differently, in particular those whose needs currently cannot be met in mainstream school. The government should not be taking a one size fits all approach to the SEND system. The proposals seek to reduce the power of the First-tier Tribunal (Special Educational Needs & Disability), which
May 2026
is clearly designed to reduce the workload of an already overwhelmed Tribunal, and weaken rights to challenge. This can only benefit local authorities who currently lose 99% of all cases that proceed to hearing in the Tribunal. However, this statistic needs to be taken lightly as a case is deemed to be won, if a parent secures just one change to an EHCP and does not reflect if they achieved the big changes they wanted. In reducing the rights of appeal to the First-tier Tribunal (Special Educational Needs & Disability), we will likely see a higher number of Judicial Review Claims as an alternative legal action. So whilst the reduction in the legal right to appeal to the First-tier Tribunal (Special Educational Needs & Disability) would reduce the number of cases heard and therefore resolve the matter of the Tribunal being overstretched, all it will likely do, is lead to an increase in Judicial Review Claims, and therefore leading to the High Court being overwhelmed instead. It is also likely to increase legal aid costs incurred, as Judicial Review is a more costly remedy, and one where legal aid can in some circumstances be assessed on the child’s means and not the parents, which is not the case for Tribunal Appeals.
The proposals pledge additional funding to support schools and SEND children, which is great news, as the system is drastically underfunded. However, we also need to consider the costs associated in reforming the SEND system. The exact costs are not known but they will be significant – think about the cost alone of the government working towards and preparing the Schools Whitepaper and SEND Reform Consultation - all the hours of work that have gone into just getting to the point that these documents were drafted and published. Then add to that the time in drafting the relevant bill and regulations, all the work required, for these to go through the legislature process in Parliament. Then think about the costs of implementing the changes. Personally, I think it would be a better use of money to put that into ensuring LA’s can and do comply with the current SEND support regime, rather than creating something new, that on the face of it looks like it won’t work and will leave families, children and young people worse off.
www.education-today.co.uk 27
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