SEND LAW IS NOT THE PROBLEM: THE COUNCILS FLOUTING IT MUST BE TACKLED

The system for supporting children and young people with SEND is indisputably in crisis. That is beyond question and no one would argue with it (writes Catriona Moore of IPSEA)

Of course, examples of good practice do exist, but thousands of children and young people across the country are still being failed every day. This results in losing out on education entirely, or their families (those who can) are forced into protracted and painful battles to secure the special educational provision they need, and to which they are entitled by law.

What is it, that’s failing?

Because what we’ve got now clearly isn’t working, policymakers have concluded it’s the system itself that’s failing and in urgent need of reform. And that reform means removing the right to provision that is individualised to a child or young person’s needs, as well as making it harder for parents to challenge decisions about their child.

But what is it, exactly, that needs to change?

Does the entire legal framework that underpins support in education for children and young people with SEND need to be dismantled and reassembled?

Or is it, in fact, the existing law that needs to be applied and enforced, as MPs on the cross-party education select committee concluded last year in a detailed report on “Solving the SEND crisis”:

“The SEND reforms must not be based on any withdrawal of statutory entitlements for children and young people with SEND. The Department [for Education] must instead set out plans for reform which increase accountability across the whole of the SEND system, so that many more parents and carers can be confident that their children’s needs will be met regardless of whether they have a diagnosis or EHC plan.”

Solving the SEND Crisis inquiry report

A different apprach is being taken

But the Government appears to be taking a different approach. It is starting from a number of misconceptions about current statutory expectations:

• that too many children and young people are currently receiving too much specialist provision;
• that a formal diagnosis is needed in order to secure support;
• that the way to reduce the number of SEND Tribunal appeals is to make it harder to appeal.

What is being ignored is the reality is that local authorities have clear statutory duties to children and young people with SEND that are routinely overlooked and disregarded. It is well documented that the system is riddled with unlawful decision-making.

It’s hard to understand why there’s so much unwillingness to accept that non-compliance with the law is the biggest problem in the SEND system. That if the right decisions were made first time round, there would be no grounds to appeal to the Tribunal and appeal numbers would naturally fall. Costs for appeals for both parents and LAs would also fall and, naturally, if coupled with greater inclusion and earlier support, more children would have their needs met sooner. It’s obvious the law is not the problem.

Culture, not the law is the real problem to be tackled

Therefore, what needs to be reformed is not the law but the culture and attitudes that prevail in local areas: attitudes to the law itself, to inclusive educational settings, and to parents of children and young people with SEND.

For the parents and professionals at the “sharp end” of a system that’s failing to provide the SEND provision urgently needed, and for the politicians who want to help them, “reform” seems the obvious solution.

The system does need to be made much more accountable, and an EHC plan should not be the only way, in practice, for a child or young person to get essential support. The law already states that support should be put in place early, but many schools do too little, leaving needs to escalate until more costly support is required. This is a key point of failure, and we support moves to pour resources and expertise in as early as possible, especially into the Early Years.

The Law must not be diluted

But there’s no good argument for changing the legal framework that underpins children and young people’s existing rights and entitlements. And the truth is, if council law-breaking on EHC Needs Assessments and Plans isn’t tackled now, it will persist even after any reforms to the statutory SEND system.

Greater accountability must mean an end to the current situation where the same local authorities that are taken to the SEND Tribunal for the same unlawful decisions over and over again with no negative consequences for anyone other than the families affected.

It means ensuring schools understand and fulfil their obligations under the Equality Act 2010, to make inclusion a reality rather than a vague aspiration.

What also needs to change is the toxic way parents are perceived and treated.

The narrative that parents “expect too much” and make “too many demands” is endemic within local and national government. But what parents do expect—rightly and reasonably—is that the law is followed; that their child receives the support in education that they need, and in a setting that works for them.

SEND reform must not remove the right of every child and young person to receive an education that meets their needs. Enforceable rights cannot be replaced by vague reassurances that every school and local authority will do the right thing.

sign the petition

SOCR and its members are backing the petition by teenage autistic campaigner, Tee-Jay, that restates our own 2025 petition’s call to protect children and young people’s legal rights. Please sign it to propel it to the same success and secure another Parliamentary debate. And don’t forget to tell your MP your story and ask them to #SaveSENDLegalRights

By Catriona Moore, IPSEA

Watch the video