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. 

We can say only two things with certainty at this point: none of this is helpful for hard-pressed families of children and young people with SEND who are already anxious about their children’s education, and nothing has been announced. Our priority at IPSEA is, as always, to help families understand and navigate the system. 

Defending the law 

But we can’t ignore the rumours about what ‘SEND reform’ might end up looking like. Alongside helping families make the system work, we also see our role as defending the law. We are deeply alarmed by any suggestion that statutory support or specialist provision may become even harder for children and young people to obtain, as we see every minute of every day how hard families have to fight to get their children the special educational provision and support to which the law entitles them. 

Some of the speculation – encouraged no doubt by local authorities who struggle for a variety of reasons to fulfil their legal obligations to children and young people – centres on the current framework of rights and entitlements set out in the Children and Families Act 2014. 

Legal rights go back 40 years 

There are suggestions from various quarters that this legislation is impossible for local authorities to deliver. The implication is that legislators had a sudden rush of blood to the head in 2014 and ‘gave’ children, young people and their families a bonanza of goodies, on which they have capitalised ever since, to the detriment of the public purse. 

But this isn’t the case. The Children and Families Act 2014 is a vital piece of legislation, but many of the rights it enshrines have been in place for much longer. 

The statutory system of statements of SEN based on children’s individual needs was introduced at the beginning of the 1980s by the Education Act 1981, along with a new emphasis on inclusion. The independent SEN Tribunal for resolving disputes was introduced in the 1990s by the Education Act 1993. Also in the 1990s, the Education Act 1996 stated that a child should be educated in accordance with their parents’ wishes, and required local authorities to make arrangements for suitable full-time education for children, either at school or otherwise than at school. 

The duty on local authorities to assess a child if their school can’t meet their needs, statutory time-limits for assessments and statements, the duty to name a school in accordance with a parent’s wishes (subject to certain conditions), the requirement that provision should be specified and quantified: none of this was invented by the Children and Families Act 2014. 

What the Children and Families Act 2014 did was widen the legal framework from birth to age 25, require coproduction with parents and young people, and mandate joined-up working between local authorities and local health bodies. It didn’t radically change the threshold for a statutory assessment of needs or open the floodgates on parent choice. 

Similarly, the SEND Tribunal isn’t a recent invention designed to torment local authorities. Its role since 1993 has been to uphold the law and help individual children and young people get the support the law says they should have. But while legal rights are no use without a way of enforcing them (ie through the Tribunal), if rights are eroded the role of the Tribunal will wither. 

Something to be proud of 

Children and young people with SEND in England have the right to an education that meets their needs, to enable them to thrive, make progress and achieve their potential. As IPSEA’s senior solicitor, Georgina Downard, told MPs on the House of Commons Education Select Committee last month, this is something policymakers should be proud of, rather than something they’re trying to extricate us all from. 

There will be a lot of discussion in the months ahead on EHC plans, SEN Support, SEN units in mainstream schools, and all the rest. What it comes down to is whether we value children and young people in all their diversity, and what we think will increase the chances that they will get the provision and support they need: a statutory, legally enforceable framework, or a weakened one that simply hopes everyone will do the right thing.

 

About the author

Catriona is responsible for IPSEA’s work in bringing about change by influencing the development of SEND policy nationally. Her background is in public policy and communications, and she has worked for a number of charities and public sector organisations, as well as in Parliament. In the past she has served as an elected councillor in a London borough, a special school governor and a charity trustee. She has personal experience of having a disabled child. In her spare time, she enjoys walking, reading, going to the theatre and being by the sea.

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