Claim alleges consultation fails to explain legal changes affecting SEND rights and tribunal powers
The Government is facing a High Court challenge over its proposed reforms to the special educational needs and disabilities (SEND) system, following allegations that the consultation process is “unfair” and fails to properly explain significant legal changes affecting children and families.
Specialist public law firm Rook Irwin Sweeney has issued judicial review proceedings on behalf of Jessica Hayhurst, an eight-year-old child with complex special educational needs and disabilities. The claim targets the Department for Education’s consultation, “SEND reform: putting children and young people first”, published alongside the Schools White Paper “Every Child Achieving and Thriving”.
The challenge argues that the consultation does not adequately explain proposed changes that could alter existing legal rights and protections for children with SEND and their families. According to the claim, consultees are not being directly asked for their views on some of the most significant proposed reforms.
Among the proposals under scrutiny are plans to reduce the powers of the SEND Tribunal in relation to Education, Health and Care Plans (EHCPs), including removing its ability to direct that a particular educational placement be named in an EHCP. The consultation also proposes shifting the legal duty to secure provision in EHCPs from local authorities to schools.
Lawyers acting for the claimant argue the consultation is unlawful because it fails to clearly state that existing rights and entitlements could be reduced. The claim also alleges there are no consultation questions addressing several key reforms, particularly those affecting appeal rights and enforceability of SEND provision.
Polly Sweeney, partner at Rook Irwin Sweeney, said: “The government’s SEND reforms, if adopted, will dilute existing legal rights in many material ways including the loss of several existing rights of appeal to the tribunal, a radical reduction in the tribunal’s powers, and fundamental changes to the enforceability of rights to individualised special educational provision.”
Melissa Hayhurst, acting as litigation friend for her daughter, said the reforms could have serious consequences for vulnerable children. She stated: “Children like [Jessica], who is severely autistic and non-verbal, cannot advocate for themselves and rely entirely on the adults, systems and legal protections around them.”
The dispute intensified after lawyers acting for the Department for Education reportedly stated that there was “no duty to consult” on certain proposed changes because decisions on those issues had already been made.
In response, the claimant’s legal team said they were seeking clarification from the Government Legal Department regarding when those decisions were taken and whether consultation on those matters remained genuine.
The Department for Education has previously said its SEND reforms are intended to ensure children receive support earlier and closer to home while maintaining appeal rights for parents.