Well, that didn’t take long. It’s less than a week since the Government published long-awaited proposals for “reforming” the SEND system, and the first steps have already been taken in a legal challenge against the Secretary of State for Education.
If successful, this could force ministers to publish an amended version of the consultation to add more information about what is proposed, as well as specific questions on some key changes. It could also mean extending the consultation period.
Consultation lawfulness questioned
The family of Jessica Hayhurst, a little girl with complex special educational needs, has instructed lawyers to send a formal letter before legal action to Bridget Phillipson. The letter questions the lawfulness of the consultation process on SEND reform in relation to two things:
- The proposed weakening of SEND Tribunal powers, and
- A shift in legal duties from local authorities to schools.
The family is being represented by Polly Sweeney and Bethany Parr from Rook Irwin Sweeney, which is funding the claim through its Social Justice Fund. Barrister Steve Broach KC is providing pro bono support.
The letter says:
“Many of the proposals being put forward in the White Paper will result in parents and children losing important existing legal rights”.
As we outlined in our first post on the Schools White Paper and SEND proposals, the 132-page consultation paper invites views and responses to 40 specific questions from anyone with an interest in the plans by 18th May 2026. The questions cover things such as how children can be supported in the new proposed ‘layers’ and how “Inclusion Bases” should work.
Views not required
But the Department for Education (DfE) is oddly uninterested in obtaining views on its proposal to remove the SEND Tribunal’s power to order that a particular school or college be named in Section I of an EHC plan. The government proposes that the Tribunal’s power be limited to ruling that a local authority “reconsider” its decision about which school or college to name. This is likely to result in children and young people being left without a school or college place that meets their needs.
There are no consultation questions on this, so no obvious place for parents to register their views on the matter.
The DfE is similarly uninterested in seeking public views on the wisdom of shifting the legal duty onto schools “to deliver the educational offer in an EHCP”, rather than it remaining with the local authority as is currently the case.
The right provision is hard to find
Jessica, who is primary school age, attends an independent special school where her needs are currently met. However, she will need different provision as she gets older. Her parents are concerned that, given how hard it was to find a suitable school for her initially, her next school will also need to be highly specialist. Given the lack of this type of provision in the maintained sector, this will most likely need to be another independent school.
They know from experience just how hard it is to get a suitable placement named in an EHCP. They’re all too aware they may need to exercise their right of appeal to the SEND Tribunal to challenge any future unsuitable placement named by their local authority.
The letter from the family’s lawyer to the Secretary of State says:
“These proposed changes are significant and are likely to have a very considerable impact on parents’ appeal rights and the enforceability of EHCPs generally. It is submitted that the failure to ask consultees questions about these important proposed changes is irrational and unfair, in the context of the government otherwise deciding to consult on the White Paper and other proposed changes to the SEND legal framework.”
Rook Irwin Sweeney Press Release
“Fundamental” change that’s “irrational and unfair”
The letter goes on to say that changes to Tribunal powers and legal duties represent “a fundamental change”, and that this has not been “in any way flagged to consultees, who will include many ‘ordinary’ families who have children with SEND and who will not have a sophisticated understanding of the existing statutory framework”. They describe this as “irrational and unfair”.
Jessica’s mother, Melissa Hayhurst, speaks for parents across the country:
“If the Government is serious about children’s rights, it must be honest about proposals that would reduce protections for very vulnerable children like Jessica, which could make EHCPs impossible to enforce, and leave us without effective rights of appeal to Tribunal, without any reason for doing so.
“Families deserve a consultation that genuinely invites scrutiny to enable improvement of the system, not one that sidesteps the hardest questions. When a child’s education, care and future depend on an EHCP being enforceable, these are not technical tweaks. They are life-altering decisions, and parents deserve honesty, transparency and a real voice.”
Melissa Hayhurst
A response to the letter has been requested from the Secretary of State by 4 pm on 13th March. 2026.
We will be watching closely to see how this develops.
SNJ is also organising an online roundtable with SEND legal experts to explain in more detail what the legal implications are of the Government’s SEND proposals, so keep an eye out for more details.
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Also read:
- How do you ensure pathways to education, health, and social care support, meet both diagnosis and needs?
- Researching flexi-schooling: How beneficial is it for children with SEND?
- Oops, we did it again… The Government must now listen to more than 100,000 people who do not want to lose SEND rights
- Experts at Hand: When is an occupational therapist also a SEND expert?
- Could using AI to filter Government consultation responses lead to “algorithmic silencing” of neurodivergent voices?
- A council’s “improvement journey”? How determined SEND parents catalogued the trail of their LA’s unlawful behaviour
- Research: Social networks in special schools. Friendships, bullying and play
- CrowdJustice SEND accountability: When the law says “must”, local authorities cannot treat it as “maybe”
- DfE must give its SEND reform Child Rights Impact Assessment a do-over; this time, without marking its own homework
- Research: SEND case officers are LAs’ “human shield” gatekeepers. But parents shouldn’t have to be their own key workers
- Research finds the Government’s SEND National Conversation “performative”, lacking pathways for young people’s inclusion
- EOTAS: Why the Government must listen to those with lived experience
Key Content
- Researching flexi-schooling: How beneficial is it for children with SEND?
- Research: Social networks in special schools. Friendships, bullying and play
- CrowdJustice SEND accountability: When the law says “must”, local authorities cannot treat it as “maybe”
- Research: SEND case officers are LAs’ “human shield” gatekeepers. But parents shouldn’t have to be their own key workers
- Research finds the Government’s SEND National Conversation “performative”, lacking pathways for young people’s inclusion
- Research shows children in special schools report higher self-esteem than those with SEN in mainstream
- Research: Inclusion for neurodivergent pupils needs lived-experience trainers and getting the wider school environment right
- No inclusion without tackling the “serious fault-line” of exclusions, says children’s legal charity, launching a “roadmap for change”
- Why my daughter’s SEND experience means we’ll take this consultation judicial review fight wherever it needs to go
- “Covid babies” and plans for SEND Reforms: Are We Creating a Forgotten Generation?
- Inclusion bases: Can they help solve the SEND crisis?
- Where will all the teaching assistants come from? The research exposing the reality gap in the government SEND plans
- Legal challenge launched against government SEND proposals that “significantly weaken the legal rights of children and young people”
- The “enormous burden” of admin and monetary costs to SEND families, supporting a system that should be supporting them
- Evaluating SEND change: Promising prototypes, patchy proof
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When her younger daughter was diagnosed with Rett Syndrome in 2009 shortly before her second birthday, Catriona found herself dealing in practice with things she’d previously thought she understood in principle.
She juggles her work as policy manager for a national charity with caring and advocating for her daughter. She's passionate about improving the lives of disabled children and their families, and making the systems that should support them work more transparently and equitably.
Catriona writes for Special Needs Jungle in a personal capacity, and all views expressed are her own.
- “Why would anyone in government think that was an okay idea?” #SaveSENDLegalRights - May 12, 2026
- The SEND reform reality check: Why experts’ and policymakers’ concerns are growing under scrutiny - April 15, 2026
- MPs warn “unsustainable” SEND transport system fails families with disabled young people - March 6, 2026
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