‘I had to learn the law myself’: England’s special educational needs system has turned parents into lawyers

Incoming Cambridge Uni law student Alice Jackson dives deep into the problems with England’s SEND system

Parliament presumably did not intend parents to become experts in administrative law. Yet, for many families of children with special educational needs and disabilities (SEND), that has become a prerequisite to securing the support their child is legally entitled to receive.

The crisis in SEND is primarily portrayed as an education problem, but it is also a constitutional one. When parliament creates legal rights that can only be realised by those with the time, knowledge and sheer tenacity to enforce them, the inevitable result is a gulf between having a legal right and being able to exercise it.

For one Leeds mother I spoke to, securing support for her seven-year-old daughter became a “full-time job alongside parenting and my actual job”. Her daughter, who has autism, spent a year out of education before finally receiving an Education, Health and Care Plan (EHCP). The family is now preparing for a SEND Tribunal because the school named in the plan cannot meet her needs.

Her experience comes at a significant moment for SEND policy. The Government’s schools white paper, published earlier this year, recognised that many children receive support according to ‘how hard their families fight, or how much their families can spend’. It proposes the biggest revamp of the SEND system since the Children and Families Act 2014, supported by £4 billion of additional investment over three years, including funding for mainstream provision and the introduction of Individual Support Plans (ISPs) for every child identified as having SEND, whilst reserving Education, Health and Care Plans (EHCPs) for children with the most complex needs.

Access to SEND rights

Few query the necessity of reform; instead, contention arises over whether the proposed reforms will preserve all-important legal protections.

EHCPs do something relatively unusual: they do not simply identify need but impose statutory duties on public authorities to secure specified provision. If a local authority fails to secure the provision specified in a plan, parents have routes to challenge that failure. Under the Government’s proposals, many children would instead receive an Individual Support Plan (ISP).

While the government asserts that this would extend legal recognition to around 1.2 million children with SEND, IPSEA, the leading charity in the field of SEND law in England, warns that Individual Support Plans ‘appear to have no clear mechanism for enforcement’. The charity supports greater investment in mainstream schools but argues that improvements must not come at the expense of ‘weakening the legal rights families rely on’.

These concerns carry weight because the current system already highlights the gulf between legal rights de jure and legal rights de facto. The government’s own evaluation of the 2014 reforms found that families’ frustrations stemmed less from the content of EHCPs than from the onerous and poorly communicated process of obtaining them. Notably, the report observed that success often depended on the individual proactiveness of a family’s caseworker. Children’s access to support should not hinge on administrative luck.

Parliament reached a similarly stark conclusion. In 2019, the House of Commons Education Committee condemned widespread ‘unlawful practice’ and buck-passing, describing a system that forced parents to ‘wade through a treacle of bureaucracy’. Six years on, there is little evidence that the bureaucracy has become any less treacly.

A recent Ofsted and Care Quality Commission inspection identified “widespread and/or systemic failings” in SEND services in Leeds. During the period investigated by the Local Government and Social Care Ombudsman, the council issued 791 EHC Plans. Of these, 614 (78%) were issued more than 30 weeks after educational psychologist advice had been provided.

The human consequences behind the statistics are profound. The Leeds mother described the process of securing an EHCP as “almost Sisyphean”. Her experience illustrates why SEND should be understood not solely as an issue of education policy but as an issue of the rule of law.

Access to justice

Discussions about access to justice frequently centre on court fees and legal aid, yet SEND reveals a different, but no less significant, impediment: administrative complexity. Two children may have the same requirements, yet the child whose parents have the time and resources to pursue months of appeals is far more likely to receive the necessary support. That sits at odds with the principle that the law should apply equally to everyone.

When asked about the Government’s planned reforms, the same mother commented, ‘I’m not worried that my daughter will lose her EHCP because her needs are very complex. But I’m glad she got it when she did.’ Her concern speaks to a wider anxiety among parents that legal protections may become even harder to secure under the proposed system.

Successful reform?

The Government is right to acknowledge that the current system is failing families. Stronger mainstream provision and reducing unnecessary litigation are important aims. The success of reform, however, will not be measured simply by the amount of money invested or the number of Individual Support Plans issued. It will be measured by something much simpler: can an ordinary parent secure and enforce their child’s legal rights without first becoming an expert in public law?

If the answer remains no, England’s SEND system will continue to produce a perverse outcome: parents acting as litigants instead of simply being parents. That is not merely a failure of education policy — it is a failure of the rule of law.

Alice Jackson is a future Cambridge Uni law student with a particular interest in public law and access to justice.