The proposed SEND system reforms – what do they mean for schools?

The special educational needs and disabilities (SEND) system in England faces significant challenges and has done so for some time. Schools have an uncomfortable place in the system, often forced to be in the middle between parents and local authorities. When a child has an Education, Health and Care Plan (EHCP), schools will try to do all they can to support that learner, but they often lack the funding they need to succeed.

The impact of this is that parents, who quite understandably expect the school to deliver the provision set out in the EHCP, become at odds with school staff, despite their hands being tied by the level of funding provided by the local authority. The legal position under the Children and Families Act 2014 has always been that it is the legal obligation of local authorities to ensure that the special educational provision set out in an EHCP is secured.

This isn’t the first time that a government has looked to reform the SEND system. The Sunak Conservative government published an improvement plan that focused on streamlining it by introducing standardised EHCPs, among other things. The current UK Government seems to be looking at more wide-ranging reforms, with ministers suggesting that alternatives to the SEND system are being considered because the current system is overly adversarial and bureaucratic.

Of particular concern to parents and advocacy groups is the refusal by the Minister for School Standards, Catherine McKinnell, to rule out significantly narrowing the scope of EHCPs or replacing them altogether. There is worry that the latter could lead to children with SEND being unable to access mainstream education and that instead they would be home-schooled or placed into alternative provision.

It is unsurprising that parent and advocacy groups are concerned. EHCPs are vital for securing additional funding, critical support (including, in certain cases, therapies), and specialist teaching. Perhaps equally unsurprising is the Government’s careful consideration of the position of plans within the system, with several local authorities running substantial deficits (described as financially unsustainable by the National Audit Office) and with the number of appeals to the First Tier Tribunal at an all-time high (with parents winning more than 90% of appeals).

What do the proposed reforms mean for schools?

At this stage it cannot be said with any form of certainty what the impact of the proposed reforms will have on schools, however if access to the EHC needs assessment process is restricted, EHCPs are restructured or abolished in their entirety, there could be quite a significant increase in the level of support that schools are required to provide with limited or no additional financial support.

The proposed reforms may put the spotlight on schools further, with SENCos coming under increased pressure to identify SEND and the provision required to meet need in the absence of, or with a more limited, statutory assessment process.

Parents may find that the right support is only available in the independent sector, at a time when some independent schools are working to find new ways to operate profitably. Financial challenges could impact the ability of the independent sector to meet obligations under equality legislation, such law potentially being something that parents seek to rely on to establish the support for their children with reduced or absent local authority funding under a new system.

The Government has a clear goal of enhancing early support, but what is unclear is whether the approach will be rolled out in all types of schools and if funding will be redirected from other programmes and schemes to implement the reform. The goal is clearly admirable, but if it comes at a cost of a reduction in legal protections, then Government proposals will have to be reviewed carefully.

Under any SEND system, schools will be front and centre and there may be concern that the current proposals will put further strain on schools that are already under pressure on multiple fronts. Ultimately, time will tell if the proposals lead to the delivery of effective SEND provision across the sector in a sustainable way.

If you would like to speak to an education sector specialist about the SEND law reforms or SEND law and EHCPs, please contact Thomas Emmett.