SEND: why pressure is mounting on the Government to retain current EHCP legal rights

With the Schools White Paper due any day, pressure is mounting on the Government to retain the legal rights of children and young people with special educational needs and disabilities (SEND).

News stories are circulating about fears of a rebellion by Labour backbenchers over forthcoming reforms, with Ministers so reluctant to repeat the mayhem surrounding the watered-down welfare bill last year that they might delay the White Paper beyond the next election.

Adding to the strain is a statement of support from the National Education Union (NEU) for our joint Save Our Children’s Rights (SOCR) campaign that urges the government to ensure that existing legal thresholds for statutory assessment and for issuing an Education, Health and Care plan (EHCP) are retained to ensure that children and young people have access to enforceable provision.

The NEU is the largest teaching union in the UK and Europe, representing over 450,000 teachers, lecturers, school leaders, and support staff across the maintained and independent sectors. Many commentators say that the last thing the Government wants is a further fight with the unions.

Children with SEND are entitled to the right support

The union says that while early and effective intervention in schools may reduce the number of children who require an EHCP, legal rights, underpinned by clear accountability, are essential to ensure children and young people with SEND receive the support to which they are entitled.

General secretary Daniel Kebede said: “Educators see first-hand the impact of an underfunded SEND system on children, families and school staff. The legal framework is not the problem; the lack of investment and capacity is. The Government must listen to those working in education and commit to a properly funded, inclusive system that enables every child to thrive.”

Further reading:

Getting your EHCP right and why it matters

SEND: Could EHCPs be scrapped?

SEND: what will the Schools White Paper delay mean?

The NEU and SOCR say that the current crisis is the result of expanded statutory duties without sufficient funding, and cuts to mainstream schools and their support services. This has contributed to a shortage of appropriate provision and serious difficulties in recruiting and retaining both school-based and specialist staff.

They are calling for SEND funding in schools to be significantly increased and ring-fenced, regardless of a child’s category of need or the setting they attend. This is because teachers and SENCOs need protected time to work with families, plan support, and lead inclusive practice, with access to specialist services before statutory assessment becomes necessary.

Cost pressure of SEND

Recent reports from the Institute for Fiscal Studies (IFS) found that the number of school pupils with EHCPs rose by 180,000 (71%) between 2018 and 2024, and that costs for SEND are expected to more than double in real terms between 2015 and 2028.

It suggested that meaningful reform will be complex and costly, and will likely require a significant expansion of the core SEND provision available in mainstream schools, an expansion of state-funded special school places, a geographic redistribution of funding, and possibly a reduction in the statutory obligations currently attached to EHCPs.

A series of articles in the national press has speculated that the Government plans to implement this recommendation and introduce a new four-tier system as part of the forthcoming reform. Pupils with additional needs would begin with “universal” support in mainstream settings and progress through the tiers until their educational needs are met.

Under this plan, EHCPs will be accessible only to children with the most complex and severe needs. What ‘complex’ and ‘severe’ mean in the context has yet to be confirmed.

• Special Needs Jungle: Complex needs, simple cuts: how vague, undefinable labels could ration SEND support

Parents have deep anxiety about the upcoming reform

It comes as a new survey from SENSE found that parents of disabled children with the most complex needs fear government plans to reform England’s SEND system could strip away the limited support their children currently receive.

The survey, conducted by Censuswide with 1,000 parents and family carers of disabled children with complex needs, found that families are already being failed by the existing system, with 47% worried that current support could be reduced further, worsening their situation.

Nearly half (48%) also described the process of securing SEND support as stressful, while almost a quarter (22%) said their child’s school was not delivering the legally binding support set out in their EHCP.

The parents are deeply concerned about what reform might mean for their children’s future. Half (50%) say they are ‘nervous’ about the upcoming changes, while a third (34%) do not believe politicians have their disabled child’s wellbeing at the heart of decision-making.

Families failed by the underfunded system

The charity, which is a member of the Disabled Children’s Partnership (DCP), warns that without robust legal rights and adequate funding, disabled children risk being left even further behind.

James Watson-O’Neill, chief executive, said: “A shocking number of children are being failed by a baffling and underfunded SEND system. Too many are falling through the cracks – at the cost of their happiness, wellbeing and future life chances. So it’s little surprise that parents feel deep anxiety and distrust about the upcoming education reforms. If their children’s legal rights are weakened any further or there’s an attempt to cut spending, the consequences could be devastating.

“Instead, the government must listen to families and use this moment to build a properly funded SEND system, where children’s legal rights to education are protected. That must include a joined-up workforce strategy and sustained investment in the professionals who support disabled children to learn, so that every child can thrive in the nursery, school or college that is right for them, no matter how complex their needs.”

Want to find out more about legal rights for children? Check out this podcast featuring SOCR campaigners Rachel Filmer and Carrie Grant on Pod Save the UK.

Alison Bloomer

Alison Bloomer is Editor of Learning Disability Today.

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