24 November 2023

Local authorities are clearly feeling the pressure on their SEND budgets. It’s a high-stress job, for sure, being responsible for fulfilling a local authority’s legal duties to children and young people, managing ever-tighter budgets and answering to various bits of central government. 

Everyone agrees that the system for supporting children and young people with SEND is in crisis. But disagreements about the cause of the crisis, and how it can be resolved, are becoming entrenched. We’re witnessing an increasingly persistent narrative that the system is breaking as a result of too much “demand” for special educational provision, and that this demand must be suppressed. 

And who is making all these demands? Well, that would be parents/carers of children and young people with SEND. 

In the last couple of weeks alone, the Education Secretary Gillian Keegan has criticised the “tribunal factor”, accusing parents/carers of abusing the SEND Tribunal to get their children into “expensive independent schools” and suggesting that the Tribunal somehow takes sides rather than simply applying the law. 

Then we had a report on school transport by the County Councils Network (CCN), which represents 37 local authorities in county areas, warning that “spiralling school transport budgets for children with SEND” are threatening their financial stability. (It isn’t clear why home to school transport was singled out in this way. There are presumably many things local authorities are responsible for that cost a similar amount of money.) 

The CCN says that the increasing costs of providing transport to school for children with SEND are due to an “explosion” in the number of children with Education, Health and Care (EHC) plans. Their press release quotes Councillor Roger Gough (leader of Kent County Council and CCN spokesperson on children’s services) attributing the rise to “parental expectations”, among other things. 

The narrative was picked up by Michael Gove, currently Secretary of State for Levelling Up, Housing and Communities (in other words, the Cabinet minister with responsibility for local government) but previously the Education Secretary who introduced the Children and Families Act 2014. He was invited to speak this week at the CCN annual conference, and he told his audience exactly what they wanted to hear: that local authorities need more resources, and parents/carers of children and young people with SEND need to make fewer demands. 

But in doing this, Michael Gove seemed to be saying two different things: that more resources are needed to implement the law, and that there are deserving and undeserving children and families. Perhaps this is in fact exactly what local authorities want to hear, that they should have both more money and fewer statutory duties. 

The Children and Families Act 2014 sets out very clearly that children and young people have a right to special educational provision and support that meets their needs. The role of local authorities is to implement the law, not to make distinctions between what they perceive as deserving and undeserving children or to compare families when deciding who to support. We hear far too often from parents/carers who have been told by their local authority that if their child receives what they are legally entitled to, someone else’s child will go without. 

Michael Gove is reported as saying he now feels “guilty” for bringing the Children and Families Act 2014 into being. This is an intriguing admission. Does he feel guilty that he enshrined in law children and young people’s right to education and support that meets their needs, so they can fulfil their potential? 

The message of un-meetable demand for SEND provision is seemingly being shared by everyone in government. This week the Local Government Minister Simon Hoare told an evidence session of the House of Commons Levelling Up, Housing and Communities Select Committee entitled “Financial distress in local authorities” that there is “an insatiable increase with regards to special educational needs”.

He went on to say:

“We always just have to keep a weather eye on the sharp-elbowed middle classes, who are very good at understanding the system and have friends and colleagues who are professionals and who can help advocate in particular cases.” 

It's becoming increasingly apparent that some local authorities would like to be relieved of their existing statutory responsibilities to support children and young people with SEND, and that government ministers’ ears are open. If we come back to the County Councils Network and Councillor Gough, he says that “over-spending” on support for children and young people with SEND means that “controversial measures” need to be considered. Some of these controversial measures are set out in the CCN report’s recommendations, which would weaken local authorities’ duties in relation to transport for children and young people with SEND. 

The narrative that local authorities are being financially broken by the unreasonable demands of parents/carers of children and young people with SEND is neither true nor fair. Parents/carers are doing no more than expecting local authorities to follow the law. The SEND Tribunal is doing no more than applying the law. Some parents/carers are undoubtedly in a better position than others to secure the provision and support their children are entitled to by law – but this tells us that some of the children and young people who are most in need don’t get the right support, not that parents/carers who fight are doing something underhand or unacceptable. 

At IPSEA we will keep doing everything we can to make sure that families understand their children’s legal rights and are equipped to navigate a system that often feels like a hostile environment. We will keep offering training in SEND law to local authorities, and information to national policy-makers on how the SEND legal framework works in practice. And we will absolutely resist any suggestion that the law needs to change or that children’s rights should be reduced.