by Amber Windsor, Canary SEND
We’re continuing to look at the SEND proposals in the Schools White Paper. Today, a warning from parent advocate Amber Windsor about how we’ve been told: “the system is too hard, let’s change the system”. And it’s based on a lie…
For many families navigating the SEND system, the following experience will be familiar. Your child has a legal right to something: you’ve read about it, been told about it, perhaps even quoted it back to a professional. But when you try to use it, the specialist is not available, the process is technically open but practically impossible without legal support, and the legal support is itself out of reach. The right exists in law. What does not exist is any realistic way of reaching it.
This is not bad luck or an isolated failure. It’s the result of years of deliberate underfunding and inadequate accountability; a system in which the legal framework is largely intact, but the infrastructure for enforcing it has been allowed to erode. SNJ has written about what it calls ‘manufactured consent‘: the way that erosion has led some families to conclude their children’s legal rights are not worth asserting. This then becomes the political case for weakening those rights further. The families who gave up are cited as evidence that the framework never worked, and a framework starved of enforcement becomes a framework that needs replacing.
This cycle did not begin with the Schools White Paper. We’ve watched a version of it run to completion before, in legal aid. What happened there between 2013 and today is not a cautionary analogy. It is a working model.
When the infrastructure disappears, the right becomes theoretical
In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act, LASPO, came into force, removing civil legal aid from most education, housing and welfare cases. Civil legal aid is how people who cannot afford a solicitor access free legal advice in non-criminal matters, including SEN. Before LASPO, close to a million such matters were funded every year in England and Wales. In the first full year after the cuts, that figure fell by around 70%1, and the organisations providing it fell by 59%2. The result was what came to be called legal aid deserts; whole regions where people who technically qualified for help could find no one to provide it. In areas nominally still within scope, including SEN, families could be eligible and still have nobody to call.
Rights Without Remedies: the documented human cost
What this looked like in practice was documented by Coram Children’s Legal Centre in 2018, in a report titled Rights Without Remedies3. Around 6,000 children a year were estimated to be without access to free civil legal advice, and of those who reached the Child Law Advice Service, only one in five could be helped—despite the service doubling its capacity. In about a quarter of calls about school exclusions, advisers found the school had likely acted unlawfully, often by failing to consider a child’s special educational needs. But because exclusion cases had been removed from legal aid scope entirely, those families had nowhere to turn.
LASPO also restricted access to judicial review, the process through which courts can examine whether a public body, such as a local authority, has acted unlawfully once other routes have been exhausted. Research by the Public Law Project4 found that around 44% of cases that reached a full hearing succeeded, but the less visible effect was on the cases that never reached a hearing at all.
When authorities know a credible legal challenge is possible, many will reconsider their decision before it gets that far. That deterrent effect matters as much as the hearings themselves, and it largely disappears when families cannot access legal help. The cuts reduced not just the number of families who could get support, but the practical consequences for public bodies of acting unlawfully. The government’s own review in 20195 acknowledged this damage but changed nothing.
Now look at the Schools White Paper
This is the context in which the Schools White Paper arrives. A SEND system already showing families, every day, what it looks like when accountability is weak and enforcement is difficult. The government’s justification for its proposals includes: the system is too adversarial, there is too much conflict, too many families at the SEND Tribunal.
But the evidence points to a straightforward explanation for that conflict. The Local Government and Social Care Ombudsman (LGSCO), the independent body that investigates complaints about councils, upholds 96% of the SEND complaints it receives.6 At the SEND Tribunal, of nearly 20,000 appeal outcomes recorded in 2024-25, only 143 resulted in the local authority’s original position being upheld in full.7
Families are not in dispute because the legal framework gives them too much—they are in dispute because local authorities routinely make unlawful decisions, and because when families manage to challenge those decisions, they routinely prevail. The adversarialism follows from the unlawful decision-making, not from a legal framework in need of cutting back.
What the current framework actually provides
An Education, Health and Care Plan (EHCP) is a legally binding document. The provision it specifies must be measurable, not vague language like ‘regular support’ or ‘as needed’, which cannot be monitored and therefore cannot be enforced. Once issued, the local authority has an absolute duty to deliver what the plan says.
If a family believes the plan is wrong—needs inaccurately described, provision missing or inadequate, the wrong setting named—they can appeal to the SEND Tribunal, an independent body whose decisions the local authority is legally required to follow. If provision is not being delivered once a plan is in place, families can escalate through the council’s complaints process to the LGSCO or seek a judicial review. These routes are not luxuries; they are what give the plan any practical force, and they are what give local authorities reason to get decisions right before families are pushed into challenging them.
No need for any change in rights to achieve better support
Every one of the government’s stated aims: earlier identification of need, less conflict, better mainstream support, is achievable within the existing statutory framework, if that framework is properly resourced and enforced.
Instead, the White Paper proposes to move large numbers of children who would currently qualify for an EHCP onto “individual support plans”. It’s proposed that these would be statutory, but without a Tribunal route, without equivalent enforcement mechanisms, and without an independent body to compel delivery.
It also proposes to remove the Tribunal’s existing power to specify which school a child should attend, meaning that, rather than making a decision the authority must act on, the Tribunal’s only option in those cases would be to send the matter back to the authority that got it wrong—into a potential doom loop of appeals.
The system is already this hard to navigate with the legal framework intact. Strip out the enforcement mechanisms, and there is no mystery about what follows.
- Authorities will learn, over time, what they can leave undone.
- Families will learn that the rights they were told they had do not quite match the circumstances they are actually in.
The gap between the law as written and the law as lived will widen steadily, until it is cited, as it was after LASPO, as it is already being cited in SEND now, as evidence that the framework was always too complex to work.
What is needed is not a simpler framework but a properly accountable one: better enforcement of the law that already exists, not the removal of the mechanisms that make that law enforceable.
What you can do before 18th May
The consultation closes on 18th May. Responding requires no legal expertise, only an honest account of what your child has needed, what the system provided, and where it fell short. The government has changed course before, when the pressure became impossible to absorb. A well-evidenced consultation gives it reason to do so here—if it’s prepared to listen. SNJ has published guidance on how to respond. This is the window, and it will not stay open.
References
- Law Society, ‘LASPO Act: the impact on access to justice’ (2023).
- As above.
- Coram Children’s Legal Centre, Rights Without Remedies (2018)
- Public Law Project, The Value and Effects of Judicial Review (2014)
- Ministry of Justice, Post-Implementation Review of Part 1 of LASPO (2019)
- Upheld SEND complaints rise 25% in a year (Schools Week)
- The 1% club: LAs win almost none of 25k SEND appeals, at an indefensible cost of over £200m (SNJ)
About the author
Amber Windsor is a late-diagnosed AuDHD parent-carer, SEND campaigner and founder of Canary SEND.
Through Canary SEND she shares neuroaffirming resources and information for families navigating the SEND system – particularly those supporting children who are struggling to access education, experiencing autistic burnout, or whose needs are not being met in mainstream settings. She writes and campaigns from both professional expertise and lived experience.
Disabled Children’s Rights are Under Attack.
We’re fighting, but we can’t do it alone: we need your help more than ever.
We’re volunteer-run, but costs are rising. To help us keep going, please consider a one-off or, if it’s possible, a regular donation.
Read more about being a regular donor here.
We use Zeffy to fundraise, which doesn’t charge us a fee, so 100% of your donation reaches us.
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”
- 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”
- The law on SEND HAS NOT changed! But restricting EHCPs would be legally-sanctioned gatekeeping and a decimation of rights
- Why the Human Rights Act matters when advocating for your child with SEND
- Why legal aid may now be available for SEND families challenging school exclusions
- When the LA wants to cease to maintain an EHCP: The law and some top tips
- GIVEAWAY: Making Lawful Decisions by Victoria Butler-Cole KC and Steve Broach KC
- Post-16: mental capacity and the SEND Tribunal
- Does the SEND Tribunal have to pay attention to the views, wishes and feelings of the child?
What kind of government is “bold” enough to scrap statutory EHCPs from vulnerable children?May 16, 2025
The SEND reforms in the Schools White Paper reveal rights given, and rights stripped awayFebruary 24, 2026
Don’t miss a thing!
Don’t miss any posts from SNJ – simply add your email address below. You must click the link in the confirmation email you’ll receive to activate your free subscription.
You can also keep up with us by following our
Want more? Be an SNJ regular donor!
SNJ is a non-profit and everyone who writes here does so voluntarily. We need your support to help us with costs by donating once or as a regular patron. Find out more here
- WEBINAR RECORDING! The implications for children’s legal rights to EHCPs and EOTAS of the Government’s SEND proposals - September 3, 2026
- From suspicion to support: why the Government’s child protection reforms matter for disabled children - August 28, 2026
- Have your say on the future of transport for disabled children and young people - August 25, 2026
Please share this article!
Discover more from Special Needs Jungle
Subscribe to get the latest posts sent to your email.
