Our legal and policy teams have spent the past few weeks analysing, in great detail, the content of the SEND Review published at the end of March in the form of a Government green paper. Our chief executive, Ali Fiddy, was invited to give evidence on the SEND Review this week to the House of Commons Education Committee. This is a summary of what she told MPs on the committee. 

No-one should under-estimate the significance of the proposals outlined in this green paper. If implemented, the proposals will require reforms that wouldn’t fit into the current SEND legal framework. The Government appears to be laying the groundwork for an overhaul of the existing SEND system, to the detriment of children and young people. 

We believe that the proposals in the green paper are not about enhancing families’ experiences or improving children or young people's outcomes, and it is disingenuous to suggest otherwise. The main purpose of the proposed reforms is to save money. 

The Government’s diagnosis of the problem with SEND provision is that there is ‘too much’ of everything and costs must be reduced. 

The Government believes there are too many children and young people with Education, Health and Care (EHC) plans, too many children at independent specialist schools and too many appeals to the SEND Tribunal. The proposals in the green paper appear to be motivated principally by a desire to reduce these things – and, most significantly, reduce cost.  

Children and young people who have an EHC plan need that level of provision. When the SEND Tribunal rules that an EHC plan should be issued, all it is doing is applying the law. The Government should be more concerned about the children and young people who don’t have the provision that they need. The rising Tribunal appeal rates demonstrate the extent of unlawful decision-making, with more than 90% of appeals to the SEND Tribunal finding against local authorities. 

There is no evidence that families are abusing the system of redress, and the Government’s proposed changes to this system will only make it harder to enforce children’s rights to provision and support that meets their needs. The green paper envisages reducing the number of Tribunal appeals to only “the most challenging” cases – but our view is that the best way to reduce the number of appeals to the SEND Tribunal is to make sure the law is complied with in the first place, not to restrict routes of redress. 

The green paper is based on the misconception that local variation is permitted. 

The current national legal framework is absolutely clear – local authorities have clear legal duties over which they have no local discretion. It may appear ‘variable’ because of an entrenched lack of compliance by local authorities, but there should be no confusion on the part of local authorities about what is required under the current law on things like needs assessments, annual reviews and transition planning.

The green paper fails to address the accountability gaps that mean the law on supporting children and young people with SEND can be disregarded with impunity. 

There is nothing in the green paper to suggest that the Government intends to address the entrenched problem of non-compliance with existing law. We had hoped the SEND Review would focus on the failure to make local decision-makers accountable for the decisions they make about the lives of individual children and young people, and would underpin the existing system with a robust set of consequences for local authorities that do not adhere to the law. 

Instead, the Government has decided that a new set of national SEND standards is needed. We disagree. What is needed is for the existing law to be followed in every area for every child. It is unclear why new national standards are needed. 

The green paper says there is need for greater clarity and consistency in how needs are identified and supported. But the problem as we see it isn’t a lack of clear expectations, but a lack of compliance with the existing legal framework – and an absence of accountability mechanisms to make sure children’s rights are upheld. The only reason, we believe, to introduce new standards is to change existing thresholds for assessment and provision. 

The proposals in the green paper would, if implemented, water down children and young people’s rights and entitlements to special educational provision. 

It is clear that the motivation behind the proposals is to save money – and it is not going to be possible to do that without diluting children and young people’s legal rights and entitlements. 

We are concerned about the proposal to restrict parents’ current right to choose an education setting for their child to a pre-determined list. Parents and carers will only be able to express an “informed preference” from a pre-determined list of schools that the local authority considers appropriate, with the focus being on what’s available in the local area rather than on individual children’s needs. 

It’s hard to avoid the conclusion that under these proposals it will become harder for children and young people to get the help and support they need, not easier. Further, this seems to fit with what appears to be a broader policy agenda to reduce opportunities for individuals to hold public bodies to account, demonstrated by restrictions on access to legal aid and reforms to the system of judicial review and the Human Rights Act. 

Tell the Department for Education what you think 

Anyone can respond with their views, and we hope that many parents and carers of children and young people with SEND, and young people themselves, will share their thoughts and experiences. We encourage you to respond to the public consultation which is running until Friday 22 July. 

Join our free webinar: SEND review – the proposals, the implications and next steps 

Join us for our free webinar on Monday 27 June at 7.30pm. We’ll be talking about the proposals outlined in the SEND review in more detail and will explain the implications the proposals would have for the existing SEND legal framework and for children and young people with SEND. The session will include a presentation from the IPSEA team followed by an opportunity for Q&A. Places are limited, so if you’d like to attend, please register for a place here.