Schools White Paper, SEND Politics, special needs

The SEND reforms in the Schools White Paper reveal rights given, and rights stripped away

After such a long wait for the Schools White paper and its SEND “reforms”, when they arrived yesterday (23/2) it felt like we’d been watching the ocean slowly receding before a tsunami of paperwork smashed into and over you. 

Alongside the Schools White Paper, Every Child Achieving and Thriving, the Department for Education has published a detailed SEND reform consultation proposing, among many other things, 

  • a new tiered framework of support, 
  • nationally defined “Specialist Provision Packages”, and 
  • for children without EHCPs, a change from SEN Support to statutory Individual Support Plans (ISPs).

Ministers describe this as a move towards earlier help, stronger mainstream inclusion and a more consistent national system. Parents will want to look carefully at what it means for EHCPs, appeal rights and day-to-day enforceability. And for rights? The government claims to be increasing rights, but what they giveth with one hand, they taketh away with the other…

Among the publications were:

There are more, but those are the main ones. We’ll be updating our SEND Politics page with everything you need during the week. The White Paper itself is largely strategic, and we will look at that separately. The real structural SEND detail sits in the consultation document, SEND Reform: putting children and young people first. 

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First words

The first thing to be said is to read our article from IPSEA’s lawyers stressing that NOTHING HAS YET CHANGED. You may be told by schools, and your council, that you can no longer apply for an EHC needs assessment. This is not true. Nothing in today’s publication is law. 

The second thing to be restated is that the current law, the Children and Families Act, is good law. It was co-produced. It expanded the age range to access provision. It brought in expanded support for children after 16. It allowed the very youngest children to have statutory provision. It has been a victim of its own success in that regard. It has been a victim of systemic maladministration in every other way. As our devastating articles yesterday from Measure What Matters showed here and here, when children do not get the support they need, when they need it, avoidable tragedy can ensue. We are very concerned that these proposals will harm the very same kind of vulnerable, neurodivergent children and young people highlighted in the testimonies. 

Thirdly, and perhaps surprisingly for us, is to congratulate the DfE SEND department for getting the accessible versions out at the same time. This might seem a strange thing to single out, considering it’s something that should be expected, but it is the first time we can remember this actually happening. In meetings with the minister and her lead SEND official, we repeatedly stressed the importance of this, and we are glad they took this seriously.  

We are also pleased that the action of our campaign group, Save Our Children’s Rights had such an impact in causing the government to think long and hard about SEND, instead of rushing out a White Paper when it was expected last year. By galvanising parental and other public opinion in the petition and bringing out MPs at the debate last September, the Department for Education was forced to pause publication and go back to the drawing board. As a result, this document is not a SEND White Paper, but a SEND consultation on their proposals. 

That is not to say we are satisfied with these proposals. While we are still doing an in-depth analysis, at first blush, there is an unacceptable erosion of rights. Stand by for more on this throughout the next few weeks. 

An overview

Today we’re going to concentrate on the SEND part of these publications with an overview. Over the next few days, we will explain the other aspects clearly. We will publish information in detail to help you respond to the consultation. 

Do not rush to respond–you have 12 weeks. Responding quickly may feel like it’s off your plate, but your response will undoubtedly be better if you take your time, understand the implications properly, and read our breakdowns. If you have something to add, or you’ve spotted something you want to tell us about, please email us. Your voice is how we help formulate our response.  

The age range is proposed to remain the same

The consultation maintains a right to an EHCPs up to age 25 where a young person remains in education or training (as now under the CFA 2014).

However, transition between phases will be a trigger point for review under the new system at 16, 18, and at entry to primary and secondary. One of the most frequent danger points for children is when they move to secondary– if they seem to be thriving at primary, they could lose statutory support just at the point when they need it most–in the strange new world of a large, busy secondary. If your child already has an EHCP, it does state they won’t lose their support, but what about when they hit the point when the new system kicks in 2029/30– and the next annual review?

Is a simpler system proposed?

If you were hoping these SEND “reforms” would create a simpler, more streamlined system, prepare to be disappointed. 

At present, we have SEND Support (non-statutory) and EHCPs (statutory). Under the proposed new system there will be: 

  • Universal–(high-quality inclusive teaching with reasonable adjustments— this is what we have now)
  • Targeted
  • Targeted + 
  • Specialist – the only tier featuring EHCPs. 

We’ll explain these more in a moment.

National Inclusion Standards (NIS) 

Proposed to guide provision are National Inclusion Standards (NIS) – the proposals say by 2028. These are trailed as evidence-based tools and guidance:

“These will set out, for the first time, support that should be available in every mainstream setting. We will also refresh areas of need, update guidance on reasonable adjustments, and revise the SEND Code of Practice.”

Creating this will be an “independent national expert panel” who will oversee both these NIS and Specialist Provision Packages (more on this will be in another post).  You can expect the panel to be made up of a range of the usual names who will likely not be that independent at all–by background, funding, or position. 

“informed by evidence, working closely with experts, as well as children and their families. They will set out what all children and families should be able to expect from their school. They will also empower leaders with clear, evidence-based guidance and approaches to make their school more inclusive, and to design targeted support for specific areas of development. By 2028, the National Inclusion Standards should guide how schools are meeting the needs of children.”

What has been announced: The Government’s SEND Vision

The White Paper sets out a broad vision of an education system where “inclusion and high standards are two sides of the same coin.” Children with SEND are explicitly referenced as being underserved by the current system. That’s under-served, not “undeserved”. We think.

The message is clear: the government believes the present SEND framework is too adversarial, too inconsistent and too reliant on statutory plans. If that’s the case, surely they should have asked why and sorted that out first (non-compliance, lack of funding). But no.

The government also seems to think that special schools are ‘failing’ pupils and they don’t do as well as children in mainstream. Well, of COURSE they don’t—if they have needs such that they’re in a special school, what parent cares about 10 top GCSEs? Just staying alive is a big plus for many–and, as a rule, special schools have thriving communities and children who have friends–often for the first time. Specialist schools for more academically able children with SEND turn out young people who are able to attend higher education or find training or work precisely BECAUSE they attended that kind of provision. Ms Phillipson needs to remove her blinkers as a matter of urgency.

Presumption to Mainstream- But with new limits!

Continuing the current “presumption to mainstream”, the ambition is to:

  • “Strengthen mainstream inclusion”
  • Provide earlier intervention
  • Reduce the need for escalation to EHCPs
  • Create clearer national standards

The consultation says the government will maintain the legal principle of “presumption to mainstream”. On the surface, that sounds reassuring. Under the Children and Families Act 2014, if a parent requests a mainstream school, the local authority must name it unless specific statutory exceptions apply. However, what is now being proposed is where the alarm bells start ringing.

A “tailored list of settings” for EHCP placements has been trialled and discontinued under the current Change Programme. But it’s being resurrected here with proposals that LAs will provide parents with a list of recommended settings capable of delivering the child’s Specialist Provision Package (description of SPP later). That shifts the starting point. Currently, parents can request any suitable school—an erosion of current rights.

And the SEND Tribunal would no longer be able to force a local authority to name a specific school–only to reconsider their decision–which could mean more children placed in unsuitable settings without the existing ability to challenge this effectively. Another rights erosion.

Reforming the Structure of SEND Support

The plans set out a new structure in which most children’s needs are expected to be met through a stronger “Universal offer”, with three “layers of support” above it: Targeted, Targeted Plus, and Specialist.

If you’re old enough to remember the pre-2014 system, this mirrors what there was then– School Action and School Action+ that helped create clear evidence of interventions tried and stepped up.  

Two structural changes that matter most for children/families:

  1. A statutory Individual Support Plan (ISP)
  2. A narrower ‘specialist’ route (nationally defined)

Individual Support Plans – a new statutory expectation

Pre-2014, children with SEN but no EHCP had an IEP (Individual Education Plan). This was changed to an SEN Support plan. Now it seems set for another change. Schools/ settings will have a legal duty to produce a digital ISP for children receiving “Targeted” support and beyond. We have joined IPSEA in calling for SEN Support to be made statutory, but it’s not clear if this meets that call–especially with any appeal rights. And having a statutory plan and having provision within it that’s worth anything, is as many know, not the same thing. 

This would effectively formalise what is currently SEN Support and require schools to:

  • Identify barriers to learning
  • Set out agreed provision
  • Review and Monitor Progress 
  • Follow reasonable adjustments guidance–which will apparently be strengthened. 

But this is not new. This is already the expectation under current law, so what would changing it improve? 

However, making it statutory makes it more than (though how much more?), at present, dependent on the ethos of the school, the skill of the SENCO, and the vigilance and experience of the teacher. Not to mention–far too often–the tenacity of the parent. How many times have parents raised an issue they’ve noticed, to be told there isn’t one, only for things to deteriorate so much a child ends up out of school? The current system says parents should be taken seriously and listened to. Too often they are instead fobbed off and/or demonised as “that” parent. 

So, on paper at least, this could help strengthen everyday accountability. Each ISP would be reviewed at least annually. At a general level, Ofsted would also inspect the quality of a school’s ISPs through routine inspection. However ISPs are not described as equivalent to EHCPs in legal enforceability. So parents should be able to ask: 

  • If provision in a statutory ISP is not delivered, what legal route exists to challenge this?
  • Will it be possible to challenge ISP decisions in the same way that EHCP decisions currently can be? 

Our initial feeling is–none, and no…

ISPs could improve clarity, but enforceability remains a crucial unanswered question. Individual accountability appears to rely heavily on school complaints procedures, but this means redress is likely to vary greatly between areas/trusts. Complaints processes are also less robust, independent and legally-based than Tribunal appeal routes, so this might impact those with significant needs but not deemed high enough for the new ‘Specialist Provision Package’ threshold. And, if it can’t be solved at school or LA level, does that mean the Ombudsman will get new powers over schools? They’ve [wanted this for a long time,] but their capacity is also very limited and the redress is token. There is also no suggestion of this in the proposals.

While this system could help improve early help and clarify expectations on schools, it is likely to herald a far more bureaucratic and time-hungry expectation on schools that will force children to repeatedly fail before receiving the appropriate level of support.

Reducing Reliance on EHCPs with a narrower eligibility

EHCPs will continue, but they are tied to (nationally defined) Specialist Provision Packages. Eligibility rules and definitions are going to be the key decider as to who gets legally enforceable support, not individual needs. Another erosion of rights.

EHCPs were intended to ensure children with health and/or social care needs, as well as educational needs, could have their support coordinated in one single document. The legal test under the Children and Families Act is whether it “may be necessary” for provision to be secured through a plan, not whether a child is “complex” or “severe”. 

The legal test wasn’t changed in 2014 for good reason, and if it now will be, the government will face a massive amount of opposition, of which we, and Save Our Children’s Rights, will be standard-bearers.  

If Specialist Packages become the gateway to EHCPs, then:

  • Fewer children may qualify.
  • The threshold may shift from “necessary” to “fits defined package criteria.” 

Even though a government can lawfully define categories of provision or create national standards, there could be a case to answer under the Equality Act if packages become rigid gatekeeping tools. If a child clearly needs provision to avoid substantial disadvantage and is then refused support because they do not fit a package criteria, that could raise discrimination concerns. 

Reasonable adjustments can’t be overridden by financial policy alone, so if package definitions are used to limit adjustments that would otherwise be reasonable, that could also be legally challenged. As could any packages that are considered to disadvantage particular groups of children. This could lead to claims of indirect discrimination or breaches of the Public Sector Equality Duty.

Specialist Provision Packages 

A brief overview for now of these “SPPs” for now. The following criteria would govern whether or not a child can have an EHCP. An expectation of health services stepping up is doing a lot of heavy lifting. If you think your child would fit in one of these categories, be prepared for someone to tell you they don’t quite…

1. Profound and Multiple Learning Difficulties (PMLD)

For those with “more than one disability, including a profound cognitive impairment, significant difficulty communicating, and additional conditions, such as physical disability, sensory impairment, sensory processing differences, and medical needs.”

Providing: “learning, care, therapy, and health support operating together as one coherent system.”

2. Significant Executive Function (currently severe learning difficulties)

For those with severe and permanent global learning disability or lifelong speech and language disorder, affecting some, or all, areas of speech, language and communication, executive function, social and emotional, motor and sensory development.

Providing: structured, consistent, and highly individualised education, alongside integrated therapies and any clinical support (as determined by health) as appropriate.

  1. Complex Executive Function and Communication

“This is an emerging profile based on recent research evidence.” For children and young people with “significant permanent learning disability affecting some, or all, areas of speech, language and communication, executive function, social and emotional, motor skills and sensory development. Children who need this package often manifest with behaviour that challenges.”

Providing: “expert support to develop their initiation, persistence and exploration with learning opportunities that are closely matched to their complex learning needs, as well as ongoing support with their personal care needs, nutritional requirements and physical development.”

  1. Social and Emotional Development – Externalising Behaviour

For children and young people “whose social and emotional needs manifest in behaviour which challenges.” This includes autism, ADHD, language disorders, perhaps with “other learning needs or speech, language and communication needs.”

“Where a child or young person has wider mental health needs, these would be addressed by health services as deemed appropriate.” (!!!)

Providing: “highly structured, consistent, and responsive” education, which “integrates therapeutic inputs, such as speech and language therapy, counselling, and evidence-based emotional literacy programmes.”

  1. Social and Emotional Development – Internalising Behaviour

For children and young people “whose social and emotional needs manifest as withdrawal, disengagement or ‘shut down’.”

This includes autism, a language disorder, and “wider mental health needs (which would be addressed by health services as appropriate).” 

Providing: Education “grounded in trauma-informed, relational pedagogy and which integrates therapeutic inputs such as speech and language therapy, counselling and evidence-based emotional literacy programmes.”

  1. Sensory Impairment

For deaf, visually impaired or multi-sensory impaired children and young people. 

Providing: Qualified Teachers of the Deaf/Visual impairment /Multi-Sensory Impairment, audiology, habilitation, speech and language therapy, and resources/equipment/technology

  1. Physical Disability (without significant learning difficulties)

For children with physical disabilities who can access the mainstream curriculum, centred on physiotherapy, occupational therapy, equipment and adaptations to support mobility, wellbeing and curriculum access.

Providing: Access to specialist services, eg, physio, occupational therapy, speech and language therapy, and equipment to support wellbeing, development and learning.

We know you’re already thinking—my child isn’t a “category”, they’re an individual. I’m afraid the government doesn’t seem to agree. So we must tell them that an individualised EHCP is vital to ensure needs are met. 

Parental involvement

We’re only touching on this briefly here in this post.

It is explicitly stated that:

“EHCPs will be developed with the setting, and in consultation with parents, afterthe Specialist Provision Package and placement decisions have been made, rather than beforehand, as happens now. They will include the educational offer based on the relevant Package, as well as health and care provision agreed during the assessment Process.”

(pg 66 Consultation document).

That means that, for the most “complex” children, all the important stuff is decided without the people who know them best, when it counts. And children don’t get consulted at all. This is both morally and ethically wrong, and extremely dangerous when you have children who are medically fragile, have complex profiles and a diverse range of needs—but the people that know them best are not even invited to the table. 

Inclusion Bases

We’ve written a lot about resourced provision and units, now repackaged as “inclusion bases’. The proposal outlines two different models: Support Bases (school/MAT funded) and Specialist Bases (LA funded). The intention is to include a much higher proportion of children in these “specialist placements”.

At present, all but a small number of children have an EHCP to enable access to a unit or provision within mainstream. Under this new regime, it looks like there will be no such requirement, and perhaps no way to avoid being moved into one. It risks children being shunted into “inclusion base” at the will of their school. Whether that’s because they can’t sit still, their profile is too spiky to manage, they need “too many” reasonable adjustments to bother with, or anything else. Hey ho, goodbye appeal rights. 

What about Post 18?

As mentioned, the consultation maintains a right to an EHCP up to age 25 where a young person remains in education or training. The emphasis remains on preparing for adulthood, including employment and independence.

But councils will be laser-focused on trying to prove education/training is no longer appropriate, even more than now.  And access to post-18 may depend on whether they sit within one of the specialist provision packages.

Additional support for 18+ young people without an EHCP is being considered under the new system, but don’t hold your breath.

SEND Tribunal

The SEND Tribunal remains as the legal backstop, with parents/young people retaining the right to appeal an assessment, which “Specialist Provision Package” applies, and which school should be attended. But more rights are being proposed for the chopping block

Mediation remains part of the dispute pathway, but the consultation proposes strengthening mediation and complaints resolution–this is the same as the previous plans for the SEND and AP Improvement Plan of the previous government. 

However, even though the proposed ISPs are supposed to be statutory, there is nothing about how they would be appealed, and the Trbunal’s reach hasn’t been extended to cover them. 

The proposals to amend the exceptions related to “efficient education for others” and “efficient use of resources” are particularly important for parents to understand. At the moment, local authorities can refuse to name a school if admitting the child would be incompatible with the efficient education of others. This is interpreted relatively narrowly and is often tested at Tribunal. The consultation suggests explicitly allowing LAs to not name a school if it’s already full or if admitting the child would have a seriously detrimental effect on pupils there.

This could strengthen the hand of the LAs in placement disputes given the widespread and ongoing capacity constraints especially in the special schools sector, giving them a handy, robust legal justification for refusal.

The question remains whether or not when schools are full, the LA gets to wield that as a permanent barrier, or does that create a duty for the LAs to create capacity (we think it should!). Equally, the proposed amendment to the “efficient use of resources” is now explicitly about value for money.

The law already allows local authorities to refuse a placement if it would represent an inefficient use of resources. What the government proposes is to emphasise value for money and evidence of effectiveness. At first reading, this appears to be as much a clarification as anything. However, it allows the financial lens, through which placements are judged, to be significantly strengthened.

Parents who have successfully argued at Tribunal that an independent placement is necessary despite the higher cost will be watching this anxiously. If “value for money” is elevated in importance, it may change how Tribunals balance cost versus need.

For families, the key test will be whether these changes make placement disputes clearer and fairer, or harder to win.

Accountability 

The government has clearly heard that accountability is one of the non-negotiables, so much so, it gets it’s own entry into their ‘You Said, We Did’ table in the consultation document, but when you look closely, much of the enforcement framework appears familiar.

Across the White Paper and the SEND consultation, accountability is framed around:

  • Stronger inclusion expectations on schools
  • National Inclusion Standards
  • Clearer duties to produce and monitor Individual Support Plans
  • Multi-agency working expectations
  • Data transparency and outcomes tracking
  • Oversight of independent special schools

The narrative being pushed is that clearer standards + clearer responsibilities = better accountability.

At school level, the reforms would formalise expectations through Inclusion Strategies and statutory Individual Support Plans (ISPs). However, schools already have a legal duty to use their “best endeavours” to secure SEN provision, must follow the graduated approach, and are inspected by Ofsted with inclusion in scope. The proposals seem to clarify and standardise expectations rather than introduce a new sanction or enforcement mechanism. In other words, accountability may become more structured on paper, but not necessarily stronger in legal terms.

At local authority level, the same pattern holds. Councils would operate within a clearer national framework and National Inclusion Standards, but they are already subject to statutory duties, joint Ofsted/CQC inspection, judicial review and Tribunal oversight. The system may become more standardised, but the accountability levers remain broadly the same.

The most important question is enforceability. Currently, the strongest accountability tool for families is the SEND Tribunal, linked to EHCPs. If more children are supported through ISPs rather than statutory plans, and there is no equivalent independent appeal route for ISP disputes, then practical accountability could remain similar to today’s SEN Support system — largely reliant on complaints and inspection rather than binding legal remedy.

So while the structure of SEND support may change significantly, the accountability architecture looks more evolutionary than revolutionary. For parents, the real test will be simple: if support is not delivered, will it be easier—or harder—to challenge and secure what their child needs?

Promoted

A £4 Billion SEND Investment Package

Matt looked at funding yesterday, so you can read that here. In the document, it aims to use funding to: 

  • Expand specialist support in mainstream schools— the “inclusion bases” we have written about before
  • Workforce training and development–we’ve also written about this £200 million funding here
  • National “Experts at Hand” support (more on that in another post)
  • “Capacity building” across education and health

At SNJ, we agree that investment is critical. Many of the problems in the current system stem from mainstream schools lacking the resources and specialist input to meet needs early. 

However, the funding announcements at the moment fail to set out how it will reach classrooms in a way that changes the daily experience for children. The paper says there’s an intention to shift some high-needs funding (currently controlled by LAs) over into core mainstream school budgets, but doesn’t provide any detail on how much, what schools can do if funding is inadequate, or what families can do if they aren’t sure that funding is being properly used.

As we found out with the 2014 reforms, big structural reform, without sufficient delivery capacity or routes of redress, risks shifting responsibility without having any positive effect on the reality for children

“At SOS!SEN we are concerned for our families and their children. This white paper claims to go towards improving the education system. We fear that it is finding a back door into removing the legal rights of the children and young people. We’re here to ensure that the families voices are heard.”

Richard Orchard Rowe CEO SOS!SEN

“Our greatest concern is the possibility of changes to the legal threshold that could leave many children no longer eligible for Education, Health and Care (EHC) plans, thereby weakening the only enforceable legal protections currently available to children with SEND. It is not yet clear what statutory footing the proposed individual support plans would have, how they would create a legally binding duty to secure provision, how schools and local authorities would be held accountable, or what rights of challenge would be available to parents. These are fundamental questions, and we will be scrutinising them very carefully.”

Madeleine Cassidy, chief executive of IPSEA 

Conclusion (for now)

There is an uncomfortable historical echo here that’s making all of the more experienced SNJ team scratch their heads.

For those of us involved in the 2014 SEND Reforms (that, funnily enough, were also considered to be once in a generation- go figure!) we distinctly remember that they were explicitly designed to move us away from a multi-layered, bureaucratic system. Statements of SEN, School Action and School Action Plus were criticised for being confusing, slow and overly procedural. Children often cycled through tiers for years before getting any meaningful help. Because of this, the Children and Families Act 2014 simplified this into two main levels: SEN Support and EHCP. The idea was clarity, joined-up working between education, health and social care, earlier help and fewer hoops to jump through.

Now this bold “new’ approach is…. To give us even more tiers and still no real accountability.

Certainly these reforms come with significant risks for families. The tiers mean that:

  • There are more gatekeeping points
  • More professional disagreements about thresholds
  • More time spent deciding ‘which tier’ instead of delivering provision
  • More confusion for schools, families, children and local authorities.

And while some new rights are touted, many important rights are being stripped away—and that’s unacceptable to us, and should be to you too. But not, apparently, to those disabled children’s charities and representatives who helped the Government come up with these plans.

What are your thoughts?

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