Response to Brahm Norwich: How government can reduce EHCPs without limiting parents’ rights

By Rachel Filmer, Parent and SEND Campaigner Special Needs Jungle & Save Our Children’s Rights

Response to: Brahm Norwich: How government can reduce EHCPs without limiting parents’ rights

Perhaps the most confusing part of the current narrative around SEND legal rights is its contradictory nature. The government states that improved early intervention and inclusion will not only improve outcomes for children and young people with SEND, but will lead to a decreased need for statutory plans and reduced costs within the system. 

Early intervention and improved inclusion could absolutely improve outcomes and reduce the need for EHCPs, but only if it is the right support and implemented correctly. Determining and delivering the right support would require professional assessment and an individualised package of provision, which is what EHCPs offer. 

At no point has anyone identified the problem with EHCPs or the underlying legislation. There are various claims of bureaucracy, delays and “too much paperwork”, but it’s unclear which part of that process is deemed unnecessary. Properly assessing the needs of children and identifying the support they require to reach their potential is a time-consuming but vital process if support is to have an impact. 

The legal test for an Education, Health and Care needs assessment is relatively low for good reason. It is vital that trained professionals have the opportunity to assess a child and determine the help they need. It should not be the case that only children who will definitely need an EHCP are assessed for one. If anything, more professional assessment is needed, not less. Changing the threshold for assessment would require legislative change, at which point any and all current legal rights are at risk. It would also be a costly and time-consuming process, with the 2014 reforms having cost an estimated £600m. 

All of the plans or recommendations we have seen have the ring of short cuts to meeting needs. Such short cuts are vain attempts to save money at the expense of actually meeting needs. We have seen the impact of failing to meet the needs of those with SEND, due to abject failure to implement the law correctly, and nobody would argue that this has led to reduced costs or improved outcomes. It is not surprising that there is no faith in the likelihood of support being provided without a legal obligation. We have seen the impact on the number of statutory plans when non-statutory support is insufficient or absent. 

The underlying need to subvert and sidestep legal obligations, at least partly caused by insufficient investment and infrastructure, has brought about the current SEND crisis. There is no acknowledgment that the biggest issue within the system is that unlawful behaviour. While the government seems quick to identify EHCPs as the problem, the reasoning for this claim is never stated. It appears that nobody is willing to voice the truth that would cause public outrage: restricting access to EHCPs will only “free up” resources and funding if the intention is to provide less support to those who need it. 

The sort of restrictions on eligibility being floated here and elsewhere are unjustifiable. Mainstream schools, without the expertise amongst their staff that specialist schools are more likely to possess, are arguably more in need of explicit plans than specialist schools. Limiting plans only to those who require health and care provision is particularly dangerous: local authorities are legally able to set their own eligibility criteria for social care support, and some conditions which require substantial educational provision require no ongoing medical input. Given the financial challenges within children’s social care, local authorities could prevent children from accessing social care and statutory support in one stroke of the pen. Given the Local Government Association’s attitude towards their legal duties around SEND, such an ability is unthinkable. 

Often these suggestions are supported by the reduced number of children identified as having Additional Learning Needs in Wales, as if this somehow represents a reduction in need. It does not. It only demonstrates that the number of children receiving support has been halved, and families and legal professionals in Wales have been vocal about the failures within the Welsh system as a result. Research from the University of Bristol suggests that SEND is being drastically under-identified in Wales and elsewhere.

Splitting eligibility along the lines of type of setting is inherently problematic. Children with complex needs currently have the right to a mainstream education, and such a change would force these children into specialist settings. These suggestions imply a fundamental failure to understand that needs vary significantly from one child to the next, and over time. There is no easy formula to identify an individual as a “mainstream child” or “specialist child”. There are too many factors to make blanket determinations.

There are also unintended consequences to these changes. If a significant proportion of those in specialist schools are transferred to mainstream, this would mean wholesale closure of specialist schools. Those who need them, already often facing long journeys to a suitable school, are likely to have no suitable setting within a commutable distance, potentially increasing the need for residential placements, even where these are unsuitable or unwanted by families. The social and financial consequences would be vast. 

All of those with an EHCP have been assessed by professionals and their needs and related provisions identified. It would be unthinkable to withdraw that support. Yet the suggestion that it will only be future children who are denied access to statutory assessments and plans is not reassuring, since it is not only our own children we are concerned about. We are concerned about those entering the system in the future, and the lifelong impact of getting it wrong. 

Much of the discussion of EHCPs is mired in a fundamental misunderstanding of the process, often alongside parental blame. Framing these rights as “parental rights” is disingenuous and only contributes to this. We do not value the law for the protection it provides to parents, but for the support it guarantees the children who need it. 

While it is necessarily parents who appeal in most cases where a child’s legal rights are breached, it is the child’s rights to the support they need, as identified by professionals, that are at stake. Parents do value holding local authorities to account, but only out of necessity and due to the complete absence of any other accountability mechanism within the system. The fact that parents are successful in 98.7% of appeals, and that the  LGSCO upholds 96% of SEND-related complaints, highlights the extent of the problem. Being unable to challenge decisions around support until a child is already being failed and losing vital education is not a solution that would improve outcomes. It is inevitable that a system without individualised provision for those who need it would be rife with disagreement. 

Fundamentally, it seems the government has yet to recognise that this problem cannot be resolved via short cuts and short-term cost saving. If the intention is to build a better system where children and young people are better supported, more included and no longer reliant on statutory plans to get the right help, we would all welcome such changes. It would be beneficial for children and families, for our schools, and for our public services and economy. The right support for each child would not only reduce reliance on specialist schools, it would address the myriad issues identified as priorities by this government – school attendance, the number of young people in employment, education and training, and the number of young people reliant on disability benefits or adult social care. However, there is nothing in the law that prevents these changes while maintaining children’s legal rights. The barrier exists only in budget and resources. The government must also remember that there are already over half a million children and young people in the system who did not benefit from such a system, even if they manage to build it, and we must support them through the system for the next two decades. 

The biggest unspoken issue faced by the government is that the system we have is the one most likely to get us to this place, if schools and local authorities have the resources they need, and if accountability is injected into the system. We have spent the last decade failing to follow the law due to financial pressures. We’ve ended up with unimaginable local authority deficits, vast numbers of children failed and significant issues within our public services as a result. We would urge the government not to expect a different result from making the same mistakes. 

What is desperately needed is a realistic, long term plan that prioritises the potential of disabled children. That requires investment and a fundamental shift in our education system, but not a change in children’s legal rights. The time wasted on looking for short cuts while children suffer is only exacerbating the harm and the financial crisis.

About the author:

Rachel Filmer is a SEND campaigner and parent of disabled twins boys, who are thriving in a specialist school following an arduous tribunal process in 2020. Since then, Rachel has volunteered supporting local families through the EHCP and appeal process. She is passionate about the legal rights of disabled children and empowering parents to challenge unlawful decision making.

Rachel previously worked in publishing and international events before setting up her own business as an artist and tutor. For the last six years she has worked in co-production, predominantly within maternity and reproductive health, and strongly believes that SEND services should be designed alongside those accessing them.

Rachel founded local campaign group BCP Alliance for Children & Schools bringing together parents, education staff and unions to campaign against funding and service cuts within education. She also started the national Stop Safety Valve campaign.