Callum Scott, Supervising Solicitor NLS Legal https://www.ntu.ac.uk/staff-profiles/law/callum-scott
The Children and Families Act 2014 brought about significant changes to special educational needs (SEN) provision in England. The law defines SEN as arising where a child or young person has a ‘learning difficulty or disability’, which calls for provision which is different from or additional to that which their peers would ordinarily receive. Most notably, the 2014 Act introduced a system for preparing Education, Health and Care Plans (EHCPs).
Less than a year out from a general election - with many Local Authorities facing extraordinary financial pressures, and with the long-term impacts of the Covid-19 pandemic still emerging - the SEN system is having its moment in the sun. But are EHCPs really the ‘golden ticket’ cynically used by parents just to get their children into “very expensive independent schools”? (Gillian Keegan MP, Secretary of State for Education, as reported by Schools Week 19 October 2023). Alternatively, are they, in the words of the Children’s Commissioner; “a lifeline, without which, they would not be able to access an education or lifelong opportunities”?
From Statements to Plans - more than just a change in language?
An EHCP is a comprehensive and legally binding document outlining the support and services required for children and young people with special educational needs and disabilities (SEND) and which replaced the previous -and (in the author’s opinion) antiquated - ‘Statements of Special Educational Needs’.
An EHCP should be the output of a collaborative effort involving parents/guardians, the child or young person, educational professionals, health professionals, and social care professionals. It must be evidence-led, using recommendations and data from the entire range of professionals involved, as well as taking account of the views of parents/guardians, and - insofar as it is possible to obtain these views – the views, wishes, and aspirations of the child or young person themselves. As an aside, the admittedly clunky sounding ‘child or young person’ (CYP) – a phrase which appears throughout the legislation and statutory guidance – is a deliberate distinction. This is because another significant change alongside the introduction of EHCPs was the extension of a potential entitlement beyond pre-school and school-aged children (0 – 16 years old) to include eligible young adults (16 -25 years old). This change recognises that formal education increasingly does not stop at 16, and that many young people with SEN will need extended support as regards both finding employment and independent living.
A golden ticket?
Beyond introducing EHCPs, the 2014 Act also sought to grant young people and their families more control over their education – and opportunities for personalisation of the provision to which they are entitled.
This greater personalisation appears as enhanced rights for parents/young people to request a particular school is named in the EHCP; a duty on local authorities to publish a ‘Local Offer’ (theoretically a one-stop guide detailing the support and services in their area), and the right to request a Personal Budget. A Personal Budget being a sum of money allocated to allow the parents/young person to pay for a particular educational service; to source specialised equipment, and/or commission therapies already provided for by the EHCP. This allows for greater flexibility and autonomy in how the CYP’s SEN are met.
Perhaps in part because of this (apparent) high degree of ‘choice’, SEN provision has become a bit of a political football. In the past 6 months senior Government ministers have gone on record to describe the system as “like a lose, lose, lose” (Gillian Keegan again) and in need of ‘reform’ (Michael Gove MP, as reported by the Local Government Chronicle in November 2023). Party politicking aside, as far back as 2020 the House of Commons’ Public Accounts Committee described obtaining an EHCP as a ‘golden ticket’.
The treacle of unkind bureaucracy
Notwithstanding the admirable intentions of the reforms brought about by the 2014 Act – or perhaps in large part because of them – the experience of many families is that access to SEN provision is too little, too late, and too adversarial.
Families supported by NLS Legal describe Local Authority decision-making as slow, stilted, and lacking in empathy; they face having to navigate what a former chair of the Education Select Committee described as the “treacle of unkind bureaucracy”.
Empirical evidence seemingly supports the accounts of clients of NLS Legal. In 2022-23, 92% of complaints concerning SEN and EHC Plans were upheld by the Local Government and Social Care Ombudsman. The figures from HM Courts & Tribunals Service are even more stark: across the same period, over 98% of appeals were upheld wholly or in part by
the Tribunal.
Financial pressures
A significant cause of these somewhat bleak statistics is the ever-challenging financial landscape facing the public sector at large. During 2022-23 the Department for Education (DfE) signed so-called ‘Safety Valve’ agreements with 34 individual local authorities from across England. In exchange for the DfE providing financial assistance to councils who had over-spent their SEN budget, the LAs would agree to contain their spending on provision for CYP with SEND to avoid deficits building up again.
An obvious potential consequence of this fiscal constraint is fewer CYP receiving specialist provision to meet their SEN. The fiscal landscape is likely to worsen well into the next Government as, following the end of the 2025-26 financial year, councils will no longer be able to keep their SEND deficits off their balance sheets. This is likely to mean more Local Authorities needing to consider Safety Valve measures to help stave off the threat faced by Nottingham City Council amongst others – the declaration of a technical insolvency known as a Section 114 Notice.
Yet more reform?
Before the 2014 Act has even reached 10 years of being on the statute book, further significant reforms have been proposed. These were first trialled in a March 2022 ‘Green Paper’, and subsequently developed in a 2023 DfE ‘SEND and Alternative Provision Improvement Plan’.
Many of these reforms would be (relatively speaking) easy to implement and would be hugely welcomed by families. To name just one example - the introduction of a nationally uniform EHCP template which would to an extent solve the postcode lottery in which different councils have widely different approaches to preparing an EHCP. Other reforms have received a decidedly cooler response – for example the suggestion that parents/young people would have to engage in mediation prior to being able to exercise their rights of appeal; or the proposal that parents will have to select their preferred special school from a pre-populated list of ‘Local Authority approved’ settings.
However, with an election looming large, and with political capital having been redeployed, these reforms have stalled. For the foreseeable future at least the 2014 Act remains. As, most likely, will the treacle of unkind bureaucracy.
Further reading
NLS Legal – ‘Telling Our Story’ case study
House of Commons - Education Committee Oral evidence: The Government’s SEND Review, HC 235 Tuesday 24 May 2022 Available at: https://committees.parliament.uk/oralevidence/10275/pdf/
LGSCO - Review of Local Government Complaints 2022-23, July 2023
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