Schools call for greater clarity on SEND reforms as major consultation closes

Greater clarity is needed around the Government’s proposed reforms to the SEND framework if schools, local authorities, families and other stakeholders are to engage meaningfully with the changes and help deliver the consultation’s ambition of ensuring every child receives a “high quality inclusive education close to home, where they can learn, make friends and participate in their community”.

In its response to the Government’s consultation, SEND Reform: Putting Children and Young People First, the national law firm Stone King says that the reforms are largely welcome but that greater clarity about rights and responsibilities for the key players in the system is required.  Without this, there is the potential for increased disputes between parents, schools and local authorities about the availability of support for individual children. 

With years of experience advising schools on SEN and the Equality Act 2010, Stone King brings a unique “whole-system” perspective on where the current framework is failing children, families and schools. The firm regularly advises on complex SEN obligations, disability discrimination claims, Education, Health and Care Plans (EHCPs) consultations and disputes between parents, schools and local authorities, giving it direct insight into the pressure points affecting the education sector.

While the firm broadly welcomes the direction of travel and acknowledges the need for reform, the firm says schools feel in the dark about many of the practical and legal implications of the proposals.

Stone King’s response to the consultation, which closes today (18 May), also warns that the reforms could create additional problems for schools. Expectations are to be placed on them to deliver inclusive education for a greater range of children with complex needs. However, there is a lack of certainty about how the system of graduated support will be defined through the National Inclusion Standards; what duties may apply to the implementation of Individual Support Plans (ISPs); and how access to Local Authority services (“Experts at Hand”) will be allocated. This is in the midst of growing frustration from parents, who may lose access to mediation and tribunal routes currently available under the existing system.

The firm says this could lead to a significant increase in complaints and disability discrimination claims against schools unless the Government urgently provides greater clarity around the legal obligations of schools and local authorities, the interaction with the Equality Act, and parents’ routes of complaint and/or appeal.

Stone King also raises concerns about the scale of the administrative burden the reforms would create. Under the proposals, schools would be required to produce and formally review ISPs for every pupil on the SEN register, alongside new Inclusion Strategies, thereby placing major additional pressure on already overstretched SENCOs and leadership teams.

The consultation response highlights fears that schools could be held legally accountable for provision they may be unable to secure because of shortages in external specialist support, including speech and language therapists, occupational therapists and educational psychologists.

The firm also warned that schools may be forced to operate “two SEND systems at once” for the first five years of the transition period, creating duplication, confusion and inefficiency across schools, local authorities and tribunals.

Within its consultation response, Stone King is calling on the Government to:

• Retain the current legal “best endeavours” condition for schools; 
• Introduce fair and manageable complaints procedures to avoid costly disputes; 
• Provide urgent clarity on schools’ legal duties under the new framework and the Equality Act; 
• Reduce bureaucracy around ISP reviews for stable or lower-needs cases; and 
• Ensure additional support is targeted at local authority areas already struggling with SEND backlogs. 

Richard Freeth, partner at Stone King said: “Schools we have spoken to absolutely support the principle of a more inclusive SEND system, but there is growing concern that the reforms lack detail to allow schools to properly assess what the responsibilities will look like if the reforms are implemented.

“The biggest message we are hearing from schools is that they need clarity. They need to know exactly what will be expected of them, where accountability will sit, and what protections will remain in place when support services outside their control simply aren’t available.

“The current system does not work for a lot of children, which in turn places considerable pressure on schools. If the Government reduces access to EHCPs while simultaneously increasing schools’ legal duties, there is a real danger that the partnership between schools, parents and children will be damage.

“These reforms can only succeed if they are grounded in the operational realities schools face every day. The risk otherwise is that expectations rise far faster than schools’ capacity to deliver.”

Download this PDF to read Stone King's consultation response in full.