Upon arriving for my scheduled meeting with Melinda Nettleton and John Friel, the atmosphere in the pristine meeting room at a London legal chamber is one of simplicity and order. Tea and biscuits served on clean, white china along with conversation of lawyer-like precision set the tone. However, the discussion that I’ve come to have is far from simple, as it concerns the revised English system for special educational needs (SEN). Introduced via the Children and Families Act of 2014, local authorities have been implementing it since last September. Nettleton and Friel, both lawyers and campaigners who have closely monitored the story, raised concerns when the legislation threatened to minimize parental rights. They collaborated for amendments that made it into the final parliament act, yet still have objections.
With both individuals having children who have gone through the SEN system, they’re now providing assistance for other vulnerable families. Their book, Special Needs and Legal Entitlement, subtitled The Essential Guide to Getting out of the Maze, utilizes case studies and forensic legal analysis to provide insight into the challenging relationship between parents, schools, local authorities, the NHS, and the central government. The system is cumbersome and difficult to navigate. The outcome is the result of ministers and civil servants spending three years simplifying the system and putting parents in control. Instead, the opposite effect occurred.
From the mid-1990s to last year, the SEN system depended on legally enforceable statements of special educational needs. An independent tribunal for special educational needs and disabilities (SEND) would enforce precise provisions in the statement. Many local authorities attempted to be uncooperative, and a complicated system excluded all but the most determined and financially stable parents.
The SEN system needed to be reinvented due to the complexities. The original legislation was drawn up by Sarah Teather, the Liberal Democrat children’s minister, but in September 2012, Edward Timpson, a Conservative and the current incumbent, replaced her. Despite this setback, everything changed at breakneck speed. Pilot schemes intended to test changes were still reporting even as the legislation was progressing. The code of practice appeared at the end of July, the regulations in August, and all was law by September 2012. The speed at which the changes were implemented caused alarm.
Statements were to be replaced with education, health, and social care (EHC) plans, although the majority of parental rights will remain confined to the first provision category. “Health," as Friel said, “remains a law unto itself." Mild special needs that are not in formally specified provisions are being repositioned from Programs School Action and School Action Plus into a system called SEN Support. Speak to schools, their special educational needs coordinators (SENCOs), and parents about this proposed alteration, but their nerves were rattled by a flurry of media headlines surrounding Teather’s initial idea, which claimed up to 450,000 children would be removed from the SEN category.
Nettleton and Friel agree that some changes are beneficial, including a modest extension of legally enforceable laws into social care, the need for local authorities to publish details of what they can provide in a “local offer,” and that the new programs may be in place up to the age of 25. However, they believe that significant gaps exist and potential harm may transpire.
They are outraged that the new plans possess no power for special arrangements for university students, which may mean the difference between those with unique needs staying in higher education or choosing to leave. They feel that the emphasis on official mediation between parents and local authorities before disputes reach the tribunal point is absurd. In the situation where you don’t want mediation, you’ll require a certificate from the mediators. They apprehensively feel the Send tribunal’s powers are in delegated legislation, subject to change at any time by government officials. This situation causes concern since there is no real scrutiny. "On the face of it, that’s the concern of an academic lawyer," says Nettleton. "Until it happens."
Jane McConnell, CEO of Independent Parental Special Education Advice (Ipsea), recognizes that the recent reforms in special education needs (SEN) have caused increasing concern, especially due to the ambiguity of the new system’s requirements. She expresses her view that misinformation is being spread from local authorities to schools, parents, and young people, creating chaos. McConnell explains that although the new education, health, and care (EHC) plans were designed to replace SEN statements with updated assessments in health and social care, councils are merely merging the two without addressing health and social care provision. She warns that arbitrary numbers are being used to remove children from the system, stating that Worcestershire had decided not to transfer children to EHC plans, if they required less than 20 hours of support per week. McConnell asserts that changes are being used to reduce specific entitlements, as reported by some local authorities. Schools, on the other hand, are seeking clarity, as many struggle to differentiate criteria for EHC plans from that of SEN statements. With the increase of students with complex needs in mainstream schools, due to a lack of space in specialist ones, thresholds for the new plans appear more complex leading to confusion. Some pupils whose needs were previously met by the school action program appear to have been excluded. Schools are struggling to implement the hasty reform and demanding clear guidelines from local authorities. The Department for Education was approached for comment, but there was no response. Vocal parents are urging authorities to regulate the situation for fear of potentially devastating effects on disabled children.