Children with SEND deserve better than being made pawns in the VAT wars

with additional input from Tania Tirraoro

Contents

In the recent parliamentary SEND debate, a number of MPs spoke passionately on behalf of vulnerable children and their families being failed by their local councils. Others however (all Conservatives), were not concerned with the current state of SEND. They chose to use this important debate to argue against Labour’s new policy of applying VAT to private school fees. This, these MPs threatened, would force some who pay for independent schools to support their child’s SEN needs, to move them back to state education, overwhelming mainstream schools with the influx.

MPs who’ve thus far shown little interest in disabled children are suddenly outraged by Labour’s lack of consideration for those with SEND.

Other voices meanwhile, say funding independent provision is a choice, whether your child has SEN needs or not.

Behind the headlines, political posturing and point-scoring are real families facing difficult choices. The central question is this: what impact will this VAT policy have on children with additional needs, and how can we prevent them from being caught in the crossfire?

How are children with SEND affected by the policy?

The Department for Education (DfE) has published a blog on the policy. It says the Institute for Fiscal Studies predicts ending the tax break would raise between £1.3-£1.5 billion a year, “to go towards the public finances and help improve education and outcomes for young people.”

The government will publish an impact assessment in the Budget on 30 October. It would certainly be very welcome if it was ALL given to schools to fix crumbling classrooms and improve SEND provision.

Currently, children with an Education, Health and Care Plan (EHCP) attending independent schools will be exempt from VAT–IF their plan names that school in section I. This means the local authority that funds the place will be able to reclaim VAT paid on the fees.

According to the Independent Schools Council (ISC), around 7,000 children with EHCPs attend independent schools, but over 100,000 more have additional needs or receive non-statutory SEN support. Anti-VAT campaigners are pushing for an exemption for all children with additional needs, arguing that many parents only turned to independent schools as the state system has failed their children. Many of these families have had to cut back on all extras including family holidays, to afford the fees and an added 20% would be unaffordable.

There are undoubtedly a plethora of reasons these children don’t have EHCPs, and local authorities certainly won’t want them all suddenly applying for an assessment…

Heading for court…

The policy may soon be tested as Sinclairslaw prepares to make a challenge at the High Court. The case involves a child refused an EHCP by the local authority. With no suitable state secondary school, her mother felt she had little choice but to fund an independent placement. It’s not clear if the parent appealed to the SEND Tribunal, as many others do. 98.3% who do, prevail in their appeal though it’s a long, hard road and not everyone can manage it. She claims it’s a violation of human rights, and it will be up to the courts to decide if it agrees.

The recent surge of concern from certain media outlets, MPs and various professional bodies feels insincere, perhaps even exploitative. Some publications are positively giddy about the Sinclairslaw case, and several publications quickly seized upon it.

The Daily Express prematurely called the case, still in its infancy, a “disaster for Keir Starmer”: “The legal challenge, led by Sinclairslaw, claims that families with SEND children could be forced out of private schools due to higher fees, leaving them to rely on a state education system that is ill-equipped to handle their more complex needs.” At no point do they consider the impact that this failing, ill-equipped system has on the majority of disabled children, or that improving the system so parents are never in this situation would be a better solution than building in exemptions because the system has failed.

The Telegraph has published 14 articles about SEND in 2024 to date – seven of which are explicitly about the so-called “VAT raid”. Meanwhile, they’ve run 43 articles about the VAT policy for private schools since the start of July. There’s not a single article about the widespread failing of disabled children by our government and local authorities. It’s almost as though children with SEND only matter when they can be used as pawns in an ideological and political battle.

The Government clearly believes their claims of an exodus are overblown. It estimates the number who will have to move to mainstream school will be “minimal” reasoning that, “Over the last few years, the number of pupils enrolled at independent schools has remained largely the same, even when fees have increased by more than inflation.”

These (right-wing) media outlets paint a misleading picture, suggesting it is the most vulnerable SEND children—those with “complex needs”—who are in private schools without statutory plans. In reality, children with the most severe needs usually (though not always) have EHCPs. It’s children who do not fit neatly into mainstream or specialist placements who often struggle to access support and whose families turn to private schools in desperation. Those parents who can’t afford it may end up reluctantly home-educating, no easy task, especially if coupled with loss of income as a result.

Independent specialist option

Not all of these children are in generic independent provision. Some are lucky to find more affordable specialist options, such as More House School in Frensham (boys only), where a large proportion do have EHCPs, but many others are self-funding. Could those self-funders get an EHCP? Perhaps, although the state would then have to pick up the tab-so you might imagine that LAs would be in favour of exemptions. However, affordable specialist schools are few and far between.

It is absolutely wrong that any child’s future should depend on their parents’ financial resources. While opting for a private school is indeed a choice, when faced with forking out or having their child out of school, parents may feel it’s more like Hobson’s Choice. In any case, we would advise any parent who believes their child to have significant SEND needs to apply for a statutory assessment and to appeal if met with an initial refusal.

Quantifying flight from private schools

Navigating the EHCP process is lengthy, exhausting, and often truly traumatic. It’s no wonder some families opt out of this bureaucratic nightmare if they can afford to do so. Yet the numbers remain murky. Over 1.2 million children in England with SEND or receiving non-statutory SEND support, and over 430,000 with EHCPs. While we know how many children with EHCPs are in independent provision, it’s not as simple to work out how many have SEN but no plan.

We also don’t know how many children are in private schools because of their additional needs and how many would have attended anyway, regardless of needs. We don’t know how many children will need to leave as a result, the cost of the provision they need or if they would be able to get an EHCP if their parents applied. Wrestling with these figures won’t clarify the situation, and only distracts from the need to resolve this in a way that serves vulnerable children.

For families genuinely caught in this mess, real support is needed. Labour must ensure that every child entitled to an EHCP receives one quickly and that suitable placements are funded, whether in state or independent schools. But we must push back against those with no care for vulnerable children using them for their own ends.

Promoted

What are Labour’s options? Some other ideas…

Should Labour wish to soften its stance for children with SEN, some MPs have made suggestions such as not levying VAT on fees for children going through a EHC Needs Assessment, but this has been rejected. Exchequer Secretary James Murray had some unlikely ideas of his own:

“The fees of pupils waiting for an EHCP will be subject to VAT. However, LAs aim to process all EHCP applications in time for the start of the next school year so that parents can make an informed decision as to which school they send their child to. In certain circumstances, the LA is able to prepay one term’s fees if the EHCP is not yet complete, but the outcome is foreseeable. Likewise, some private schools will forgo the first term’s fees for pupils that are expected to be granted an EHCP in the future.”

Has an LA ever prepaid a term’s fees for a private school without a complete EHCP? Has a school ever forgone a term’s fees in anticipation of an EHCP that they won’t necessarily be reimbursed for? If this has happened to you, do let us know!

A better proposal might be exempting existing independent specialist provision that is non-profit and has its own pre-admission SEND assessment, ensuring only children with additional needs are offered places. This would put anyone paying fees –LAs or individuals– on a level playing field. This would include not only section 41 schools, but those listed as special provision on the government Get Information About Schools website (the link has been set to filter those in Surrey by way of example). Very easy to do, and to then exclude those that are for-profit that few parents could afford anyway. Doing this wouldn’t solve the issue of children with SEN in general independent provision, but using the funds raised to boost mainstream schools’ SEN provision should mean fewer parents will feel compelled to move out of state provision in the first place.

Of course the latter would take time, so an additional proviso could be a phased increase in VAT over time, or offering exemptions for children currently in GCSE years to reduce the number forced to move schools at this vital stage.

How can we be sure the VAT money would be used to improve SEND in schools?

We can’t, yet. It is far from clear what specifically it will be used for. But if politicians want us to believe they truly care about disabled children, the money raised should be dedicated for mainstream SEND provision, improving the support available in all publicly-funded schools so parents don’t feel they have any option but to apply for an EHCP or go private.

Because the so-called “notional” delegated SEN budget that schools receive isn’t ring-fenced, it often gets used elsewhere. If the government changed the “notional” to an actual budget, called it the “SENCO budget” and ring-fenced it for use by SENCOs on SEND needs, we would see an immediate improvement in provision. It would be more transparent and hence more accountable. It doesn’t even need to be spent on basic SEND training because this is offered for FREE already by the government-funded Universal SEND Services programme, delivered by nasen/Whole School SEND. But the DfE needs to pull its finger out and help promote the programme more widely, which inexplicably, it has so far failed to do.

So there you go, some practical solutions that can be looked into and more than it seems Labour itself has so far come up with for SEND. Instead, it seems intent on pushing through a flawed Tory (though devised entirely by DfE officials) SEND Improvement Plan, and only listening to voices that would rather cut both EHCPs and accountability– and we all know where that leads. Prove us wrong, go on, we dare you…

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About
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Rachel Filmer

Parent Carer and Campaigner at Stop Safety Valve

Rachel Filmer is a SEND campaigner and parent of disabled twins boys, who are thriving in a specialist school following an arduous tribunal process in 2020.

Since then, Rachel has volunteered supporting local families through the EHCP and appeal process. She is passionate about the legal rights of disabled children and empowering parents to challenge unlawful decision making.

Rachel previously worked in publishing and international events before setting up her own business as an artist and tutor. For the last six years she has worked in co-production, predominantly within maternity and reproductive health, and strongly believes that SEND services should be designed alongside those accessing them.

Rachel founded local campaign group BCP Alliance for Children & Schools (www.BCPACS.uk) bringing together parents, education staff and unions to campaign against funding and service cuts within education. She also started the national Stop Safety Valve campaign