By Catriona Moore, Policy Manager, IPSEA and Imogen Steele, Policy and Public Affairs Officer, Contact
One of the questions the House of Commons Education Select Committee is asking as part of its new inquiry into solving the SEND crisis is whether SEN Support should be put on a statutory footing. SNJ thinks it should be – but what does this mean? What is SEN Support, what would making it statutory involve, and what impact would it have?
What is SEN Support?
SEN Support is support provided for children with SEN from within a school’s existing resources, without an Education, Health and Care Plan (EHCP). As most know, an EHCP is a legal document issued and funded by a local education authority.
Most children and young people with special educational needs don’t have an EHCP. Around three-quarters of them, or 1,218,000 children, are on SEN Support. This means their needs should be met by the nursery/preschool, school or college they attend. It’s intended for children and young people whose needs aren’t complex enough to require an EHCP, but who still need some form of special educational provision and support.
The SEND Code of Practice (SEND CoP) sets out in Chapter 6 how SEN Support should work and what schools should do. Specifically, schools should identify and assess a pupil’s needs, plan what provision is needed, put the educational support required in place and review whether this is meeting the pupil’s needs. This is referred to as the graduated approach: Assess → Plan → Do → Review. The SEND Code of Practice suggests the stage at which schools should seek additional assessments and advice from professionals so that individual pupils can get the support they need and make progress with their education.
What is the current problem?
Every analysis of the current crisis in provision for children and young people with SEND highlights the sharp rise year on year in the number of EHC plans. While no one has presented any evidence (beyond general assertions) that any child or young person has an EHCP they don’t need, there are undoubtedly children who don’t receive the SEN Support they do need. We hear this all the time at IPSEA and Contact, as parents seek advice on how to help their children.
Unlike EHC plans which are firmly grounded in legal duties set out in the Children and Families Act 2014, SEN Support derives from statutory guidance alone (the SEND Code of Practice 2015), not primary legislation. Much of the guidance is framed using language such as ‘should’ rather than ‘must’, leaving room for considerable discretion by schools. This results in inconsistent levels of support for children and young people between different schools and areas.
The following extracts from the Code of Practice demonstrate this (our emphasis below):
- 6.45 In identifying a child as needing SEN support the class or subject teacher, working with the SENCO, should carry out a clear analysis of the pupil’s needs.
- 6.46 This assessment should be reviewed regularly.
- 6.48 The teacher and the SENCO should agree in consultation with the parent and the pupil the…support to be put in place.
- 6.53 The effectiveness of the support and interventions and their impact on the pupil’s progress should be reviewed in line with the agreed date.
- 6.59 Schools may involve specialists at any point to advise them on early identification of SEN and effective support and interventions. A school should always involve a specialist where a pupil continues to make little or no progress.
SEND Code of Practice lacking precision and clarity
The Code of Practice lacks sufficient detail on how an education setting should decide if a child or young person has significantly greater difficulty in learning than the majority of others of the same age, or if a disability prevents or hinders them from making use of facilities of the kind generally provided for others. As a result, there’s too often a lack of clarity and consistency between and within schools.
There’s also a lack of clarity about what good SEN Support looks like. The lack of detail in the SEND CoP about the nature of additional provision for children and young people without an EHCP means it’s difficult to establish if there’s been a failure of the best endeavours duty. It makes enforcement generally tricky.
Ultimately, the lack of enforceability of SEN Support enables non-inclusive practice in mainstream schools. This is at odds with the Government’s policy of greater inclusion of children and young people with SEND in mainstream settings. The flimsy legal status of SEN Support and its vague nature without prescribed time-frames, means it’s all too easy to reduce it in times of financial pressure. Indeed, austerity under the previous government saw a decrease in the availability of schools’ specialist workforce and an increase in funding cuts. This resulted in schools reducing the special educational provision they offered to children eligible for SEN support.
So if the only way to get provision such as speech and language therapy or support from an educational psychologist is via an EHC needs assessment, it’s entirely unsurprising that the number of requests for assessment, followed by the issuing of EHCPs, has shot up.
What would it mean to make SEN Support statutory?
Putting SEN Support in education settings on a statutory footing would be a major improvement for children and young people who don’t need an EHCP but do need extra provision and support. It would mean that education settings must, instead of should, carry out the graduated approach. It should apply to all providers in the early years and further education sectors, as well as to maintained nurseries and schools.
Making it statutory would focus minds in education settings on providing the support children and young people need—particularly if it’s combined with an extension of the powers of the Local Government and Social Care Ombudsman to investigate complaints about schools, a responsibility the LGSCO is keen to take on.
How would statutory SEN Support work?
Putting SEN Support on a statutory footing would give parents a crucial route of redress to ensure their child is receiving the SEN Support they need and to which they are entitled. It would encourage more inclusive schools and would also put less pressure on the SEND Tribunal. With more children being properly supported without an EHCP, there would (presumably) be fewer EHC Needs Assessment applications and fewer ’refusal to assess’ appeals to deal with
It could be done by inserting a new section in the Children and Families Act 2014, if the political will is there to make it happen. Sadly though, as we know all too well, just because the law says something should happen for children and young people with SEND, it doesn’t mean it will be followed. More funding will undoubtedly be needed—specifically, a significant increase to the delegated budget, which could also be ring-fenced—to ensure all schools can resource what’s required and can call on specialist professionals when needed.
If the question is how to reduce costs, this isn’t in itself a short-term answer. But if policy-makers are serious about making sure that every child and young person has the support they need without an EHC plan being the only way to secure it, they need to make SEN Support work as intended.
About the authors
Catriona Moore is the parent of a teenager with Rett syndrome. She is an SNJ columnist and works as Policy Manager for IPSEA. Find her SNJ posts here. Imogen Steele is Policy and Public Affairs Officer at the disabled children’s charity, Contact. Imogen has cerebral palsy so has first hand experience of the SEN system. She is a also new columnist for SNJ.
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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
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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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I think yes maybe it should be made law Sennnar have messed up and schools to many people lives so statutory law should come In for SEN kids.
I have a bright 18 year old who suffers from longstanding migraines, recent depression and ASD diagnosis. She had 49% attendance during sixth form, doing Triple Science, but did not receive SEN provisions other than access to a small room for exams. Her education may stop at GCSEs where she was in top fifteen students out of cohert of 180. No recourse on law despite Equalities Act 2010 and being on SEN register for monitoring since year 12. Four months into academic year school only offering 1 hour per week per subject, not a reasonsable adjustment. System broken and nothing in place to protect kids like mine.