The Department for Education doesn’t seem to know whether it’s coming or going.
Yesterday it was forced to issue a “clarification” over its consultation; specifically, the bit where it said it wasn’t interested in your views about its plans to make it harder for children to get an EHCP, and to stop the SEND Tribunal from directing local authorities on children’s educational placements.
How has it found itself in this unseemly mess? (If you’re just looking for the updated letter—click here)
The story so far
As you may know, on behalf of her daughter, SEND parent Melissa Hayhurst issued a “letter before action” (that may lead to a judicial review) to the Government, over the lack of consultation questions regarding these proposals. We covered that here
Government lawyers responded in pretty uncompromising terms, saying that there was no duty to consult if the decision had already been made. This is the same as saying, we’ve decided to make this change and we’re not interested in anything you might have to say about it. We covered that here.
You can read the Government’s legal letter here on the Rook Irwin Sweeney website. RIS Law partner, Polly Sweeney, is representing the Hayhursts.
This reponse was shocking and was not received well by anyone. How on earth could this (Labour, of all parties) government decide to run roughshod over the rights of disabled children and their families?
Participating in our webinar last week, Polly Sweeney spoke about the response but urged people not to give up. She said,
“I think we were…pretty shocked by the response that we got from the Secretary of State for Education, which is essentially that on these particular parts of the reforms, they deliberately haven’t asked any questions, because those decisions have already been made. And I want to stress, though, right from the beginning, that this isn’t about everything, so they aren’t saying we’ve decided about everything. What they’ve already decided about, they aren’t asking consultation questions on. The areas where consultation questions are being asked, they have not made decisions. So, there is still a real opportunity to influence those aspects, but at the same time, there is real worry that decisions have been made already in those really important areas.”
Polly Sweeney, Rook Irwin Sweeney
Oh no we’re not… Oh, yes we are…
Later in the week, Schools Week ran an article in which the government unconvincingly claimed they really were consulting on that aspect. You might ask, entirely reasonably, well if that’s the case, where are the questions about it?
This clearly led to some foot shuffling and and ho-humming at the DfE over the weekend, before their next brilliant idea: I know, let’s tell them to put it in the catch all question at the end! Excellent plan!
And this, dear reader, is what they have done. Yesterday, the DfE issued an update to the consultation page which says,
“We welcome and will carefully consider comments and representations on all aspects of the consultation paper and subjects related to the proposed reforms, in addition to the specific consultation questions. Further contributions can be made in the text box at Question 39 or in the text box of Question 12 in the Easy Read version.
Deaprtment for Education
It would almost be funny if our children’s rights weren’t at stake.
Update: The new letter
RIS Law has now published the letter sent to them with the clarification. In it, the Gvoernment declines to extend the consultation, and makes no comment on the fact that many people will have responded already, not including any thoughts on the legal aspects as they were not asked. We would urge those people to send in an addendum to their original response.
The Government lawyers’ letter seems like it was written through gritted teeth. It includes these nuggets:
“In these circumstances, the Secretary of State makes clear that she welcomes, and will consider carefully, representations on any subject related to the proposed reforms, the shape of which can be seen in the detailed consultation paper. She will consider all representations on their merits in
the light of the circumstances at the time that the legislation is being prepared for Parliament’s consideration. This applies both to the areas you raised in your PAP letter and more generally.“The Secretary of State recognises that it may be possible to construe some parts of the consultation paper, including Question 39, in a way that might suggest (as our previous letter stated) that there had been a choice not to consider representations on certain aspects. In the light of the clarification in the previous paragraph, that debate is now academic.”
Letter from the Government’s legal department
“It may be possible to construe” that it wasn’t open to consultation because that is EXACTLY what their previous letter said and we do not believe government lawyers are prone to sending out misstatements. It is glaringly obvious what has happened and it makes a mockery of the entire consultation. We believe there is very much a case for extending the consultation, if not starting it all over again and doing a much better job of it.
There is so much that hasn’t been considered, understood, or even thought about in these proposals, not least this: PARENTS DO NOT WANT THEIR CHILDREN’S RIGHTS REDUCED. If you do this, you do NOT do it in our name! #NotInOurName
Are you convinced? You MUST respond to the consultation
You might believe them, you might not. If you’re the cynical type you might think, again entirely reasonably, that they’re only doing it to get out of a tough spot and a PR nightmare. This is on top of the PR nightmare that Bridget Philippson’s foray into social media has caused.
We would NOT advise you to simply plunk all your thoughts about the law into Q39—the final question. That’s way too easy for the AI they have already said they will use to strip it out.
We would advise you to weave your thoughts on how reducing the law may adversely impact your child or other children or young people with SEND into every answer you decide to make.
Watch the webinar
For more tips on how to knit your answers in with legal points, watch (at least) the first part of our webinar or listen to the podcast version (same page) for pertinent advice from our guest lawyers.
We’ve also now uploaded the transcript to the webinar page, which may make things easier for you. All the lawyers, Polly, Hayley Mason Seager of SEN Legal, Kate Cox of IPSEA and Eleanor Wright of SOS!SEN urged anyone with an interest to respond.
You don’t need to answer all of the questions. But DO include why retaining all your child’s SEND legal rights is vital.
The legal part of this story almost certainly isn’t over. But don’t rely on it.
- Tell your MPs what you think, using IPSEA’s template
- Respond to the consultation, using our 39 Steps advice
- Share these links with your SEND parent groups
- Flood social media with your views on the White Paper
- Do not give up
- Watch out for more news on the SOCR protest
“I think this is actually a time where we need to be louder than we’ve ever been before, rather than being quiet on these issues, because we kind of know the government asking specific questions makes you feel like you’re streamlined into answering those, but it’s because they don’t want to hear the answers on the other things that are actually really fundamentally important.
Hayley Mason-Seagar, SEN Legal on the SNJ webinar
So I think naturally, as humans, if we’re asked a question, we want to provide an answer specifically to that question. It’s really important to get all of your views across, even if they’re not in a question. Don’t feel limited by the questions, and if you feel strongly about the other areas that they are changing, or proposing to change, then you should reply to those.
And I’ve seen a lot on social media saying, what’s the point? But as we’ve discussed, it’s a parliamentary process, and we can’t assume that MPs know. 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.
The CFA was good, co-produced law
Remember, the Children and Families Act 2014 was co-produced by families, including us. It is good law. Families, contrary to what some MPs may think, DO like it. They DON’T like councils disregarding it, or blaming them for anything and everything. They DON’T like this government messing them about, gaslighting them, and taking them for fools.
We argued over lots of the CFA. The parts where we didn’t get our own way, we have since been proved right— that is, buttoning down SEN Support, making it statutory, ringfencing the SEND delegated budget, more training, better accountability and, later, not ending the Independent Supporter programme (we have more on this soon). We were right back in 2012-14, and we’re right now.
So, we are pleased that this government is taking on some of those things. But there is NO NEED to remove legal entitlements. Better support at lower levels will, in time, reduce EHCP applications—any fool can see this—unless you don’t believe in your own reforms, that is.
The DfE doesn’t want to hear us because they can’t bend us on legal entitlements—and if they had any intention of bending, they wouldn’t need to be so defensive and surround themselves with people they can financially control or persuade that rights aren’t really being lost.
You know, as an aside, we did offer to help them with getting their information out about the consultation, as we have done with previous governments (before we knew what was in this White Paper, of course). Not for free, but certainly not for the £90 million they’ve flushed down the sewer on the nonsense that’s been seen on Facebook and elsewhere. Parents are not gullible. They are smart, savvy, battle-hardened. Swiping your bag across the desk like you’re about to leap on it with the office junior is not inspired marketing. It’s bollocks, plain and simple. What are you even thinking?
Bridget and Georgia: Parents do not think you are listening to them. But you will hear them, anyway, at your upcoming “engagement” events. My advice? You might want to take with you a change of clothes and a pack of wet wipes.
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Key Content
Also read:
- Beyond EHCPs: Why Inclusion Needs More Than a Document
- The Unacceptable Truth: 20 SEND legal rights at risk from the Government’s SEND reforms
- How health and family support systems are failing children starting school
- WEBINAR RECORDING! The implications for children’s legal rights to EHCPs and EOTAS of the Government’s SEND proposals
- When things go right: Shining a light on SEND Practitioners making a positive impact [Giveaway!]
- From suspicion to support: why the Government’s child protection reforms matter for disabled children
- Have your say on the future of transport for disabled children and young people
- Unison voices major concerns over SEND reform health plans for sick and disabled children out of school in the EOTAS consultation
- Top Tips for the EOTAS & EHCP consultation: Protect your child’s rights to statutory SEND support
- Navigating constraints: Why a former PCF chair thinks the current model is missing the mark for families
- Dear Secretary of State for Education, Lucy Powell: an Open Letter from Special Needs Jungle and SEND legal charity SOS!SEN
- Research: Disabled young people define inclusive education as “learning in the place that’s right for them”
- Beyond EHCPs: Why Inclusion Needs More Than a Document
- Navigating constraints: Why a former PCF chair thinks the current model is missing the mark for families
- Let’s write the true narrative of the SEND reform proposals: We want your unfiltered-by-AI views
- Should “highly valued” EHCP Independent Supporters return to help parents navigate the SEND jungle?
- Why my daughter’s SEND experience means we’ll take this consultation judicial review fight wherever it needs to go
- Legal challenge launched against government SEND proposals that “significantly weaken the legal rights of children and young people”
- Professor Brian Lamb OBE: Parent’s shouldn’t have to police the SEND system
- Fix SEND our way for 90% of SEND debt write off, Government tells councils, urging swift action on change. So much for co-production…
- The law on SEND HAS NOT changed! But restricting EHCPs would be legally-sanctioned gatekeeping and a decimation of rights
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She is a rare disease & chronic pain patient advocate with Ehlers Danlos syndrome.
- Dear Secretary of State for Education, Lucy Powell: an Open Letter from Special Needs Jungle and SEND legal charity SOS!SEN - August 4, 2026
- Research: Disabled young people define inclusive education as “learning in the place that’s right for them” - July 30, 2026
- EOTAS Consultation: A further assault on children’s SEND rights with cost saving and reintegration to schools at its heart - July 15, 2026
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