New SEND reforms explained — will the new regime be fit for purpose?

New proposals for school provision for children with special educational needs and disabilities (SEND) have been revealed with a push to make mainstream schools more inclusive.

In the Department for Education’s white paper, Every Child Achieving and Thriving, Education Secretary Bridget Phillipson stated that children with SEND should be able to attend their local mainstream school and have their needs met by well-trained teachers, leaders, and support staff.

The detail behind this approach was set out in the accompanying consultation paper, SEND Reform: Putting Children and Young People First, which has since closed for responses, but has been read by BBK.

In practical terms, the consultation paper indicates that fewer pupils will qualify for an Education, Health and Care Plan (EHCP), which is to be saved for those with more complex SEND needs.

I support the motivation behind the reforms because the current regime doesn’t always work in practice – with failing schools and of course failing local authorities being unable to meet their obligations under the EHCP.

But I do have concerns that the new proposals could see many children overlooked, and others less able to meet their potential.

Why is this happening?

The Government wants to ensure every child with SEND doesn’t have to travel so far to be educated and money will be pumped into mainstream schools to ensure there is professional support for those with SEND.

They say there is compelling evidence that children with SEND who stay in mainstream school are much more likely to be able to work or maintain some level of independence after being educated in a mainstream setting.

How will the new SEND proposals work?

£7 billion is to be made available to deliver these reforms and as they invest in the system the Government will update the SEND Code of Practice, thereby strengthening the law to make sure children and young people receive the help and support they need.

There is to be a duty on schools to provide an inclusive strategy, with the school taking the lead depending on individual needs and how it can be delivered.

Support plans will be split into three levels:

• Targeted Support: Digital plans will be prepared in collaboration with parents. This is for pupils with ongoing, commonly occurring needs that cannot be met through standard education provision.
• Targeted Plus Support: This is much like the Targeted Support level, but includes additional input from education and health professionals
• Specialist Support: This would be the only category in which a pupil would retain a legally binding EHCP and will be saved for children with more complex needs.

This marks a significant departure from the current system, under which any child or young person with a wide range of learning difficulties or disabilities may qualify for an EHCP to meet their educational needs.

Does it make sense to save the EHCP for the most complex cases?

In theory the changes sound positive.

However, whilst creating inclusive schools is positive in principle, I do worry about the ability of cash-strapped schools to implement vast changes to accommodate the differing needs, and the effect a reduction in the legally binding EHCPs will have on long-term outcomes for children.

The DfE say the reforms are built around five principles:

• Early: support as soon as needs are identified.
• Local: learning close to home and alongside peers.
• Fair: resources and legal rights aligned with nationally defined standards.
• Effective: support based on evidence of what works.
• Shared: education, health, care, and family support working together.

The Department says it wants mainstream early years settings, schools, and colleges to become more inclusive by investing in buildings, staff training, and specialist support such as speech and language therapy.

It also says all children and young people with SEND would receive an Individual Support Plan, with EHCPs for those with the most complex needs.

Special schools and alternative provision would continue to support those pupils directly while also acting as outreach hubs for mainstream settings.

At the heart of the reforms is the strengthened universal offer in mainstream settings, centred on inclusive teaching and early support.

The DfE has also pledged to write off 90% of councils’ historic SEND deficits up to 2025–26, describing this as the largest intervention on SEND deficits to date. This support would be conditional on councils producing a DfE-approved local SEND reform plan.

Does the current regime work?

As a solicitor in the Child Brain Injury Department with BBK, I have acted for many clients who have an EHCP but I cannot always say that parents have seen the benefits of the plan in practice, with no changes added or implemented after annual reviews and with the local authority being unable to meet deadlines to issue the final plan.

Currently I’m working for a family with a child with Down Syndrome who would like their child to be educated in a mainstream setting because, by nature, children with Down Syndrome benefit from mixing with other children. However the family is leaning towards a specialist setting because it is hoped the school will be able to offer support beyond what a mainstream school is likely to provide. There will also be other children with Down Syndrome at the SEND school.

But this comes with its own issues.

There isn’t an adequate school in their catchment area.

With the responsibility on the local authority to provide funding there is likely to be a dispute as to the choice of school.

The local authority might refuse to provide transport for a school that is further away and is not their choice.

This all comes with extra anxiety for the parents.

However, a mainstream setting needs funds to provide specialist support, but experience shows schools are already struggling which is why so many children with complex needs end up in a specialist school.

Will the new regime provide the answer to this?

Concerns about rights and accountability

One concern is that the SEND Tribunal could have a more limited role under the new system. It appears the tribunal would be able to decide whether a pupil should be placed in a different support layer, but not whether the contents of an Individual Support Plan are adequate or whether that support is actually being delivered.

The proposals may create a simpler structure on paper, but there is a real risk that placing greater demands on mainstream schools could leave many children falling behind.

And what of the children with the less complex needs? My concern is that the planned three-layer system may cause a child’s needs to be overlooked.

The current system and the EHCP provide a mechanism to evaluate, assess and continue to assess the special educational needs of the child with a right of appeal to the SEND Tribunal. It seems to me that the borderline cases are those that are at risk of being overlooked with the potential to adversely affect the child’s progress at the most formative years.

Campaigns against change

At BBK I am a trained IPSEA Level 1 and 2 adviser.

IPSEA is a leading charity in the field of SEND law in England, and it is one of many organisations and legal professionals that have raised concerns about the scope of these reforms.

In a letter to The Guardian, IPSEA warned that the legal right to an education that meets the needs of children and young people with SEND is under threat, and that many thousands of children could be denied essential provision or lose access to education altogether.

IPSEA argues that the proposed reforms point towards removing, or substantially reducing, access to EHCPs for children in mainstream schools. It says this would relieve local authorities of duties that are often seen as costly and difficult to deliver, but at the expense of children’s legal protections.

About 85% of children with SEND are educated in mainstream settings, and more than 270,000 of those children have EHCPs.

These legally enforceable plans set out a child or young person’s needs, and the support required to help them fulfil their potential. Without that statutory support, and without the additional resources schools would need, it is difficult to see how more children with SEND could thrive in mainstream education.

Reducing EHCP access would not remove those needs; it would be more likely to increase pressure on already oversubscribed special schools or leave some children out of education altogether.

I think it is incumbent on the Government to ensure they work with charities like IPSEA to ensure the changes that are introduced are fit for purpose. It is one thing to promise change but it’s also important not to overlook the views of those like IPSEA who have helped children and young people with SEND for many years and know first-hand the issues they face in the education system.

More can be found on IPSEA’s website.