Threat to legal accountability on SEND

This week more than 30 solicitors and barristers who help families secure the special educational provision and support to which their children are legally entitled have written to the new Education Secretary, Gillian Keegan MP, urging her to rethink the government’s plans for an overhaul of the SEND (special educational needs and/or disabilities) system.

Here’s why.

People whose lives are more affected than most by decisions taken by policy-makers and public bodies are anxious about what the recent political and economic upheavals mean for their future. Families of children and young people with SEND are particularly keen to know what the priorities of the new line-up of ministers at the Department for Education will be.

One of the decisions ministers need to take is how to proceed with the Government’s SEND Review – an opaque endeavour that began in September 2019 and culminated in the ’Right support, right place, right time’ green paper published earlier this year.

What has been proposed risks diluting children and young people’s rights to provision and support that meets their individual needs. In particular, the proposal to introduce statutory national standards could, we believe, have the effect of levelling down not up, meaning that some children and young people with SEND would receive less provision than they need.

System reform would be the biggest possible distraction from what children and young people with SEND need most of all, which is the existing SEND legal framework to be properly implemented.

The 2014 reforms introduced by the Children and Families Act 2014 were – and remain – the right reforms, underpinned by important principles that continue to hold true. But detailed analyses by the National Audit Office, Education Select Committee, Local Government and Social Care Ombudsman and others demonstrate that implementation has been wholly inadequate, with local authorities routinely failing to fulfil the legal duties to children and young people with SEND set out in the legislation and associated regulations.

The premise of the green paper is that there is a lack of clarity and consistency about what should be provided to children and young people with SEND, resulting in widespread local variations. The Department for Education also appears to believe that too many children and young people are currently receiving too much specialist provision.

From our experience, the problem is not that children and young people with SEND are receiving costly provision that they do not need, but that too many children and young people are not receiving the support that they do need. SEND law is clear about what children and young people are entitled to and where responsibility lies. Much of the ’discretion’ exercised by local authorities that is referred to in the green paper is unlawful.

The SEND system is broken because it lacks local accountability. It is riddled with unlawful decision-making, with no negative consequences for local decision-makers – only for children and young people with SEND. This will not be fixed by proposals to reduce parents’ choice of education setting or to make it mandatory for families to participate in mediation before being permitted to register an appeal.

Any accountability that exists flows from individual parents bringing complaints or appeals – an option that is not 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. This means, of course, 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 by pushy parents. There is nothing in the green paper to suggest that the Government intends to address this situation.

The key to resolving the SEND crisis lies in creating a culture in which lawful decisions are taken first time. In our experience, parents do not pursue appeals or complaints unless there is genuinely no alternative.

The 2014 reforms had the potential to transform the provision and support that children and young people receive, and to transform their opportunities and outcomes. They still have the potential to do this, if policy-makers commit themselves to ending the current situation where compliance with the law is, for some reason, regarded as optional.

Ali Fiddy is a solicitor and chief executive of IPSEA (Independent Provider of Special Education Advice).  Catriona Moore is IPSEA’s policy manager.