The consultation paper on changes to special educational needs and disability arrived with an alarming headline proposal yesterday: that statements of special educational need (SEN) would no longer be legally enforceable.

As specialist in this area barrister Stephen Broach notes in the Gazette’s feature on the law and cuts to services for disabled people, the SEN statement is a powerful legal tool. The needs laid out in a statement must be met, and cannot fall victim to generic cuts. There are some things to be welcomed in the green paper, but more of that below.

Coming after the legal aid consultation paper, parents and carers of disabled children are right to be suspicious of this proposal. Appeals against decisions by SEN panels, or action to make a panel hear a case, are one of the many small-line items that the Ministry of Justice proposed to remove from scope.

The amount of legal aid spent on such cases is very small. But this cut, when placed beside proposals in the SEN and Disability green paper, leaves the impression of a wider government agenda to lessen accountability for decisions taken on such children’s needs, and to also remove the possibility of their legal rights – in effect ‘ring-fencing’ spending that local and central government would like to cut.

It is hardly surprising that concerned groups are suspicious about the removal of legal enforceability. As Mark Lever, chief executive of the National Autistic Society, put it yesterday: ‘Parents have told us that they really value the protections that statements provide, which are an essential tool in helping to fight for their child’s rights and to hold schools and services to account if they fail to provide adequate support.’

The proposed replacement, a ‘unified plan’ for a child, joining up education, health and social care needs, gives with one hand, and takes away with the other.

As Broach tells the Gazette: ‘One clear potential benefit of the proposal would be to establish clearer assessment and planning duties on health, as these are not stated explicitly in law or statutory guidance at present.’ But with no ability to legally enforce provision for such needs, at a time of cuts in particular, these benefits could be lost. ‘The implications of this for the legal requirements on local authorities to carry out initial and core assessments and produce child in need plans for disabled children do not seem to have been thought through,’ Broach concludes.

Also alarming is the suggestion, made by education minister Sarah Teather, that professionals meeting in a group to discuss the needs of a child is somehow bureaucracy – an assertion she makes about the process of obtaining a SEN statement as well.

The process can be frustrating, but there is an alarming tendency to label all process ‘bureaucratic’. A SEN statement unlocks access to services required by a child in a way that minimises the ‘bureaucratic’ fights a parent or carer may otherwise need to have service by service, year by year, in the absence of a statement. This is because it has legal force.

Meetings of the ‘team around the child’ were likewise labeled ‘bureaucratic’. These meetings may be, if such meetings are a straight exchange of information. But if they are a discussion of how a difficult health issue affects educational or care solutions, for example, this is time well spent.

All this is a shame because other parts of the green paper include interesting proposals.

Most notably, the other ‘big idea’ in the paper is the extension of the unified plans from birth to 25. ‘This could be very beneficial, avoiding the cliff-edge transition experienced at present by many disabled young people at 18,’ Broach notes. However unless managed carefully it could merely defer the problem, he adds, ‘moving the cliff edge back seven years would not be a particularly helpful outcome’. Still, it is worthy of consideration.

But Teather’s keenness to remove legal rights tarnishes other, better intentions. As the NAS’s Lever points out: ‘Many parents we speak to have been battling for years to get their child’s needs recognised, understood and met. If the Government is to remove statements then they must ensure that they fulfill their promise to provide the same level of legal protection, otherwise they will be unsuccessful in their commitment to stop vulnerable children falling through the gaps.’