Divide, conquer and cut: The “strategy” behind the erosion of SEND rights?

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I loathe the concept of “strategic incompetence.” It describes the tactic of performing a task so poorly, you’re never asked to do it again. It’s often used in the context of chores—think of a spouse doing laundry badly on purpose. But lately, it feels like some local councils are applying weaponised incompetence to SEND services: essentially saying, “We can only do this poorly, so don’t expect us to try.” Alarmingly, it seems the Government is giving more weight to this excuse than to the voices of parents and the organisations working to support them.

“The system is broken.”

“EHCPs take too long.”

“Children receive no help while waiting for statutory plans.”

“Many EHCPs go unfollowed.”

“And there’s so much paperwork, isn’t there? Those poor parents, having to read annual review paperwork and fill in all those tribunal forms – such a waste of their precious time. It hasn’t helped anyway, has it? We’re so bad at following the law that the right support just isn’t being delivered.”

“The SEND system is so adversarial and bureaucratic—so much fighting!

Sure, there’d be less fighting if local authorities followed the law, or if they didn’t pay barristers to fight us in court, but they just can’t seem to do it. Next, we’ll be hearing… “Wouldn’t it just be easier for everyone—mostly you—if these rights just…went away?

You might *think* no parent would agree. But disturbingly, the government has done such a poor job implementing the law it passed just 11 years ago, many parents believe their child’s legal rights haven’t helped them at all. That’s understandable: if the law isn’t followed, and you don’t have the ability or capacity to challenge it anyway, it may feel like these rights are pointless. Now, these failed families are being exploited to justify scrapping the very protections that are supposed to help their children.

Gaslighting: unintentional or cynically intentional?

You won’t find it in any local or national government documents, but it seems to be a well-worn strategy nonetheless: Deliver statutory services so poorly—or not at all—or make your local policies so impenetrable, that exhausted families start to question the value of having rights at all. Make the complaints system lengthy, unresponsive and unwieldy. Divide parents into “deserving” (who cannot fight) and “sharp-elbowed” (who can). Convince them the problem isn’t chronic underfunding or unlawful practice, but those “other” families who are “asking for too much” or “taking resources” from others. In doing this, you can turn parents’ frustration at the failure to implement the law into consent for stripping it away.

We see this tactic clearly in the way the government pushes familiar tropes: the middle-class parents “gaming the system” to get private school placements; the kids (mostly boys with ASD or ADHD) who aren’t “really” disabled, just badly behaved (parents’ fault).

Officials and politicians claim they’re concerned about the children with SEND who don’t have parent advocates, implying they aren’t getting what they need because those whose parents can are monopolising the resources. This insidious narrative isn’t new; it was one of the reasons the Children and Families Act was created—so families didn’t have to become parent warriors and children didn’t slip through the net. So much for that.

Instead of uniting parents around the need for proper implementation, accountability and funding, the system encourages blame. The message is clear: there’s not enough to go around, so someone else must be taking too much. Your anger is justified, but don’t look at us. Look at the parent next to you—it’s their fault. And if it’s not another parent’s fault, it’s your own, because all the info you need is on the council website. Just call the council contact centre and leave a message that will be ignored.

This narrative also crops up in children’s social care, except there, the stakes are even higher. Requests for a social care assessment to meet the needs of a disabled child, as set out in section 17 of the Children’s Act 1989, often result in an in-depth investigation into your parenting, more akin to a child protection investigation. Parents, justifiably concerned about the risks of their complex child being misunderstood and the impact on their family, are often too fearful to ask for help in case it implies they are incapable. These assessments are supposed to prevent families from reaching crisis point, but this support is often entirely absent even for those with complex needs. You feel like a bad parent for asking for help, but when it all falls apart, you’re told—why didn’t you ask for help?

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The louder and better-funded voices win

Worryingly, even MPs fall for this, despite the harrowing letters from parents that make up the largest share of their casework. As part of the Save Our Children’s Rights campaign, we’ve met with a number of parliamentarians. More than one has told us that most of their SEND casework comes from middle-class families, that favourite scapegoat of the SEND system. This may be true, but for the same reasons as above—those are the families with more capacity to advocate. Independent advice is scarce; parents with more resources are more likely to know their rights and can navigate complex systems to challenge unlawful decisions. But instead of fixing that disparity in support, for example, by resurrecting the Independent Supporter role, national and local government are using it to argue that legal rights are the problem.

This narrative wouldn’t fly in any other sphere. Few workers challenge unlawful treatment at work, so should we scrap employment rights? Less than 1% of employees who report discrimination at work take their case to an employment tribunal, with figures even lower for low earners. Does that make the Equality Act 2010 pointless? If we removed protections against disability discrimination at work simply because so few challenge it when it occurs, does anyone believe discrimination would vanish?

What is an EHCP anyway?

EHCPs are merely documents that set out a child’s needs and the support required to meet them. The attached legal rights mean this support must be delivered. If it isn’t, you can appeal to the SEND tribunal. Last year, 98.3% of parents were successful, but only a fraction of decisions—around one in seven—were challenged and went as far as the SEND Tribunal (that’s not to say six in seven decisions were lawful or accurate, of course). Even then, many parents have to complain or issue judicial review threats to get the provision enacted. Wanting to remove these rights can only be so councils won’t lose or be compelled to do what they must.

Instead of being honest about this, we are offered a false choice between rights and “simplicity.” A few short weeks ago, Minister for SEND, Catherine McKinnell MP, was refusing to even confirm that EHCPs might stay. The Department for Education has since changed its stance. In a recent statement, it said it’s “committed to protecting the legal right to additional support for children with SEND”, but won’t say what support that might be, or how it will be enforced. What is it about EHCPs that isn’t necessary? The right to professional assessment? The right to an appropriate school? The right to have your identified needs met?

A move away from personalisation

The motivation for all of this appears to be replacing individual support with generic, one-size-fits-all interventions. Push more children into mainstream without any legal right to the support they need. Set up whole-school SEND units for as many children as possible, despite the fact units are closing at an alarming rate. Use profiling tools and off-the-shelf packages for things like speech and language needs, delivered by staff with insufficient training. Sure, it won’t actually meet their specific needs, but hopefully something will stick. If not, maybe you can apply for more. If you’re lucky, maybe your child will have a right to more. Yes, all of this is less effective… but it’s cheaper. Or at least it looks that way at a glance.

What happens when unmet needs increase, behaviour deteriorates, attendance falls, and children fall out of education or into the criminal justice system? What happens when families can’t work, when their physical and mental health deteriorates, and they end up reliant on benefits? The impact and the cost of failure are enormous, but it’s much harder to measure on a single spreadsheet.

The benefits—and the cost—of delaying tactics

Rather than fund effective early intervention and enforce provision, delay is built into the system and into cost projections. Stalling is a cost-saving measure for councils; the cost is borne by families in lost education, mental health, family wellbeing, and earnings. And when your child ends up out of school and you’re out of work because of it? That’s your fault, not the system’s. You and your child just need to learn resilience. See a work coach. Get “motivated” by poverty.

This is exactly how benefits policy as a whole has been weaponised. Deny or delay access to diagnosis or support, then blame applicants for struggling. It’s no coincidence we’re seeing the same playbook used in SEND.

Sadly, it’s working. Some parents, exhausted, excluded, and misled, are beginning to believe the rights themselves are the problem and that reducing rights would have no material impact on their child. In reality, they’re being asked to consent to giving up the only mechanism for forcing the system to support their child. It’s nothing but manufactured consent.

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What happened when legal protections were last relaxed…

During the pandemic, legal protections for disabled children were temporarily suspended. In the five years since, attendance has nosedived, EHCP numbers have surged, NEET figures have risen, and costs have exploded. Many of these things were exacerbated by* children not being in school, so needs were missed or not provided for, and mandated support not being put in place. Weakening legal protections didn’t save money; it made everything worse. Repeating that now and expecting a different result is insanity.

Children with SEND who have EHCPs are a minority. The focus on EHCPs doesn’t just miss the point, but feels deliberate. If your child is on SEN support and not getting the help they need, it’s easy to buy into the narrative that children with statutory plans are somehow swallowing up all the resources, leaving your child with nothing. These children are left to rely on whatever discretionary support their school can manage with what’s left of their non-ringfenced delegated SEND budgets. The solution is obvious: extend statutory protections to all SEN support needed.

What happens instead is akin to presenting SEND as a ravaged buffet at a kids’ party; they want us to fight over the last soggy sausage roll rather than insist that all children are fed. They might think we will consent to starving other children so ours don’t go hungry, but we will not.

“At the heart of this issue is one question: how will removing legal rights help? If the system is already failing too many children, and only those who can enforce their rights are getting the support they need—how does extending that failure to everyone solve anything?”

Divide and rule will not work—neither will removing rights

This isn’t just policy failure; it’s a strategy. Create chaos, then claim the law caused it. Exhaust families until they lose faith in their rights. Turn parents against each other until they’re demanding some other child has support removed so their child can get what they need. Divide and rule as a political strategy, so marginalised groups are too busy fighting for scraps to organise collectively, does not apply to SEND or the wider disability movement. Haven’t they learned this yet?

At the heart of this issue is one question: how will removing legal rights help? If the system is already failing too many children, and only those who can enforce their rights are getting the support they need—how does extending that failure to everyone solve anything?

EHCPs are not golden tickets or magic wands. They are tools that work when implemented properly. The law isn’t the problem. The problem is the refusal to implement it—and the effort to convince you that the law itself is to blame.

Whatever your views on the best way to fix SEND, we must be united on one point: legal rights for disabled children are a red line. We cannot let rights be stripped from some children to shore up funds for others. We cannot stand by as they turn parents against each other, looking for someone to blame. We cannot let them divide, conquer and cut.

Over at Save Our Children’s Rights, we are working hard to challenge the inaccurate narrative around the loss of rights. My parliamentary petition on retaining SEND legal rights is being debated in Parliament on Monday 15th September. If you haven’t already done so, please sign the petition, write to your MP about your concerns and ask them to attend, and join in with our photo campaign – you can find all the information you need on our website.

*Question asked of ChatGPT/Scholargpt : What research is there around an increase in special educational needs as a result of children being missed during the pandemic, and the relaxation of legislation at the time, meaning needs were not provisioned? Response

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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