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The Government’s Schools White Paper, issued earlier this year, outlines a radical overhaul of the SEND system in England. However, legal experts warn that the Government’s proposed SEND reforms could result in an unenforceable system, leaving more children without appropriate provision.
Recently, four SEND lawyers discussed the impact on children’s legal rights at a roundtable hosted by the Special Needs Jungle website. They stated that, contrary to ministers’ portrayal of a “realisation of children’s rights,” the proposals will render EHCPs unrecognisable and result in an even more adversarial system.
Special Needs Jungle is among a group of campaigners leading the Save Our Children’s Rights campaign, which is protesting plans to replace individualised provision with seven “categories of need” into which children will be placed, dictating their provision and guiding their placement.
Those whose needs are judged not to reach the threshold will instead be given a mainstream school or “inclusion-based” placement and an Individual Support Plan (ISP). While having an ISP would be a legal right, it won’t be appealable or provision guaranteed.
Ensuring a fair SEND consultation
One of the lawyers speaking at the roundtable was RIS Law Solicitor Polly Sweeney. She recently participated in a legal challenge alleging that the SEND consultation deliberately omits questions on legal rights, thereby excluding participants’ views on this crucial part of the proposals. In a response, Government lawyers said that the decision has already been taken.
Polly emphasised there were still opportunities to influence, and the government should be told that improving inclusion does not require removing legal rights. “We should not allow the DFE to spin that narrative. MPs need to understand that we can get the good stuff for children without needing to restrict their rights.”
Another speaker, Hayley Mason Seager of SEN Legal, agreed and said that “this is a time to be louder than ever…This is our everyday lives, we’re in it, so we know exactly what’s going on, but we can’t assume MPs know what’s going on, how this is going to affect your families.”
Eleanor Wright, of charity SOS!SEN added: “Would it not be better to retain the current system of catering to each child’s individual needs, putting the child at the centre of the process, rather than shoving them into one of seven packages?
The problem with seven categories
Parents and practitioners know that every disabled child’s needs are highly individual, often overlapping, and rarely static, so the idea of seven fixed packages raises clinical and legal concerns. Hayley Mason-Seager put it directly: “You can’t base all children with special educational needs across seven categories. That just fundamentally cannot happen. Even if you had two children with special educational needs, they look entirely different to one another.”
Eleanor Wright reported that a DfE official had stated families would be able to “pick and mix” elements across packages. Her reaction was brisk: “That frankly sounds like a recipe for chaos.”
IPSEA’s Kate Cox said that under these proposals, the current, relatively low legal threshold in place for over 40 years would be increased.
She added: “Currently, we have a test which simply looks at whether the child has or may have special educational needs, and may require special educational provision in accordance with an EHC plan. Under the proposals, the threshold for a “new style” EHCP would be ’Does this child or young person require one of the predetermined Specialist Provision Packages?’ Now, that is an altogether different question.”
The legal consequence of broad, flexible package descriptions was identified by Hayley Mason-Seager as the most significant risk of all: “Broad-ranging just means completely unenforceable. So it actually means not very much is going to be delivered at all.”
Case study: Why am I concerned about the proposed reforms in the SEND Schools White Paper
My name is Tee-Jay. I am 14 years old, and I am autistic. I was non-verbal until I was 6 and diagnosed with autism at 9. I attended a mainstream primary school, where I received 15 hours of 1-to-1 support each week. It helped, but it wasn’t enough. Most days still felt overwhelming, and I would just try to get through the day rather than really participate in the lessons.
Mainstream primary school wasn’t great for me, but I believe they did what they could with the support they had. A lot of the time, it still felt loud, tiring, and quite overwhelming. Even with support, it was hard to keep up, and I remember feeling drained just from being there and trying to cope every day.
I now attend a specialist secondary school. It feels more manageable here, and I feel more comfortable than I did in mainstream school. My confidence has grown a lot, and I’ve become less shy. I feel more comfortable speaking up and getting involved in things like campaigning and sharing my views, something I genuinely wouldn’t have been able to do before.
SEND reforms and real life
Even at my specialist school, I still find things overwhelming at times. But the support is there, and the staff really go above and beyond to help us cope and understand things. My teachers, especially one of them, support me a lot with my campaigning, and we can talk for hours about SEND reforms and what they might mean. Having someone who actually listens and takes the time to understand me makes a real difference.
Without the support I have now, I don’t think I would feel able to speak out like this. It’s not something I take for granted.
When I hear about the proposed SEND reforms in the Schools White Paper, I worry. It sometimes feels like decisions are being made without really thinking about what it’s like for us in real life. Like, support might become more general rather than being based on each individual person. That makes me think about children who might be left struggling or not getting what they actually need.
From my experience, support isn’t just something written down. It’s what helps you get through each day, or what makes school feel possible at all. When it isn’t there properly, you feel it in everything.
At the moment, many families, teachers, and organisations are concerned that these proposals could weaken existing legal rights and make support harder to access.
SEND and key concerns
Key concerns include:
- The potential shift away from support based on individual needs towards more standardised provision
- The possibility of support no longer being legally enforceable in the same way
- Changes to assessment thresholds and access to plans
- Limitations on appealing decisions
- Reduced ability for families to secure appropriate school placements
While reform is needed, I believe it should strengthen the system, not weaken the protections that children and families rely on. When systems fail, families rely on rights, not promises.
I think people making these decisions should speak to children and young people who are living it because it can feel like we’re not really being heard, even though this is our everyday life.
The accountability gap and SEND
Currently, the local authority holds the duty to deliver EHCP provision. It’s a hard legal duty, enforceable through the SEND Tribunal. Those who retain EHCPs could still appeal, but the Tribunal wouldn’t be able to direct a placement; it would only send the decision back to the LA.
If a child has a new ‘statutory” lower-level Individual Support Plan, they would have to complain to the school and the LA. This gives less accountability, not more, said Hayley Mason-Seager. “The one thing that parents asked for when they were consulted is better accountability. And that’s the one thing we absolutely haven’t got in the white paper. There is no accountability.”
Polly Sweeney was clear that the plans would intensify, not reduce, adversity in the system, in less accessible forms. “At the moment, you have a tribunal where, by and large, a lot of parents do access it without lawyers and still get good outcomes. Just try and get a parent to bring a disability discrimination claim without a lawyer, or a judicial review without a lawyer.”
Those, she explained, are the remedies that would remain, both of which are significantly more complex and costly than the tribunal, and both place the burden of proof far more heavily on families. Kate Cox noted that legal aid shortages compound this directly: “Putting families in a position where their only real redress is to bring a disability discrimination claim is very, very unfortunate, when we have a specialist tribunal, an expert body. It beggars belief that we wouldn’t use it.”
What the law still requires — for now
For the growing number of children with SEND currently without a placement or with an “Education Other Than at School package (EOTAS), the proposals offer nothing. Polly Sweeney described the omission as “terribly concerning,” adding: “There should be clear proposals for how EOTAS and Section 61 of the Children and Families Act are going to be dealt with. But we’re all in the dark here.”
One point the panel was emphatic about: nothing has changed yet. Hayley Mason-Seager urged families and practitioners not to be deterred by local authority behaviour suggesting otherwise: “Even if everything went through exactly as proposed, there will be no changes to the support received by those with EHCPs before September 2030. The law has not changed.”
The webinar recording is available for free at specialneedsjungle.com.
Box Roundtable panellists:
- Hayley Mason-Seager, Principal Solicitor and CEO, (SEN Legal)
- Eleanor Wright, Legal Officer (SOS!SEN)
- Kate Cox, senior solicitor (IPSEA)
- Polly Sweeney, Rook Irwin Sweeney
