July 2022

IPSEA submitted a detailed response to the Government’s proposals for reforming the system in England for supporting children and young people with SEND, set out in the ‘Right support, right place, right time' green paper. We believe the proposed reforms will, if implemented, have an overwhelmingly negative impact on children and young people with SEND. 

We answered all the Department for Education’s consultation questions, and also sent in a supplementary paper explaining in more detail our concerns about what the Government is proposing and what we think should happen instead. You can read our paper here. We hope it will provide ministers with a better understanding of why we are so concerned about the direction the SEND Review has taken. 

We believe it would become harder under these proposals to access special educational provision and support that meets children and young people’s individual needs, and harder to seek redress when these needs are not met. 

What we told the Government in our response: a summary

Our main focus is on the law 

IPSEA’s main focus is on the law and on making sure that children and young people’s rights and entitlements are upheld. The main point we made to the Government is that the SEND system is broken because the law is routinely not applied and there is insufficient accountability for unlawful decision-making. 

It’s our firm view – based on our experience of hearing about families’ experiences and advising parents and carers on how to get the support their children need and are entitled to – that the system doesn’t need to be reformed again. It needs to be made to work. 

Why we disagree with the Government 

We disagree with the premise on which the SEND Review is based: that the law is unclear about what should be provided to children and young people with SEND and that local authorities have too much freedom to decide what to do. This is false: the law is clear and specific, and applies in every local authority area in England. 

We further disagree with the solution that is proposed: that children and young people’s rights to special educational provision and support that meets their individual needs should be reduced, in order to make the system more “consistent” and less costly. 

The existing law is clear 

We disagree with the proposed new law to introduce new national SEND standards. The existing SEND legal framework is very clear about what local authorities, education providers and others have to do. For example, there are already clear legal provisions that do what the green paper suggests that national standards would do: 

• When an assessment of a child or young person’s needs should be undertaken (s.36 Children and Families Act 2014)
• The process for carrying out an EHC needs assessment (Regs 3-10 SEND Regulations 2014)
• Who should be involved in the assessment process and what they should contribute (Reg 6 SEND Regulations 2014)
• When an EHC plan should be issued for a child or young person (37 Children and Families Act 2014)
• The format of an EHC plan (s.37 Children and Families Act 2014 and Reg 12 SEND Regulations 2014)
• How and when an EHC plan should be reviewed (44 Children and Families Act 2014, Regs 18-22 SEND Regulations 2014) 

Non-inclusive practices in schools must be tackled 

We think that SEN Support in schools for children who don’t need an EHC plan should be made legally enforceable. This currently isn’t the case, and it means that mainstream schools too often fail to be inclusive. It isn’t dependent on a new set of national standards: it could be done by adding a new section to the Children and Families Act 2014. 

Making schools inclusive also means upholding and enforcing the Equality Act 2010. Genuine inclusion of disabled children and young people in mainstream settings requires a change in the culture that too often prevails in schools, not a change in the law. 

Children and young people must not lose the right to support that meets their needs 

The Government proposes to reduce the existing right to choose a school or college for a child or young person with an EHC plan, by reducing this choice to “a tailored list of settings”. We are concerned about this because: 

• A lot of potential education settings will come “off the table”, particularly for children with the most complex needs whose needs cannot always be met by their nearest schools.
• It’s unclear how the list will be determined, with a strong risk that it will be restricted to what exists in a local area rather than what a child’s actual needs are.
• Decisions about which schools to include on a list are likely to be costs-led, with local authorities listing the cheapest options – particularly since the Government’s wish to reduce the amount of money spent on specialist settings has been made very clear in chapter 1 of the green paper.
• Local authorities already name inappropriate settings that can’t meet children and young people’s needs in section I of EHC plans. (This is why so many section I appeals succeed.) 

Children and young people will be less likely to be considered as individuals in a system that is based on national bands and tariffs, with the risk that they will not receive the support they need. 

How to create a less adversarial system 

The Government is very concerned about how “adversarial” the SEND system is. The need for redress could be reduced by creating a culture in which lawful decisions are taken first time. In our experience, parents do not pursue appeals or complaints unless there is no alternative. 

The current system works, when parents enforce it. But any accountability that exists flows from individual parents bringing complaints or appeals – an option that isn’t available for every family. Families who are able to access legal advice (whether paid or not) are in a stronger position to secure their children's rights than those who are not able to do this – which means that some of the children and young people who are most in need do not get the right support. This inequitable situation is created by unlawful decision-making, not pushy parents. 

We suggest that the Department for Education consults with local authorities on what the barriers are at a local level to compliance with the SEND legal framework and what they need in order to fulfil their statutory duties. 

We also suggest that they look again at the proposal to make mediation mandatory, and to refer unresolved cases back to a multi-agency panel for review. This would be the same panel that made the original recommendation that is being appealed against on issues such as whether a child or young person’s needs should be assessed or an EHC plan issued, and what the content of the plan should be. These proposals would increase delays in children and young people receiving the support they need, and reduce parents’ and carers’ confidence in the process. 

Creating a less adversarial system means that decision-making must be lawful and routes of redress must be accessible and transparent. What is proposed will make the SEND system less accountable and more adversarial. 

Now that the consultation has ended, what happens next? 

The public consultation period is now at an end, and the Department for Education will be reading and analysing the responses they have received. At some point in the next few months, they will publish a response, and indicate whether they intend to go ahead with these proposed changes or amend them.