In Brief
- The Government is planning major reforms to the special educational needs and disabilities (SEND) system, aiming to address delays, poor outcomes, and unsustainable costs, with a new Schools White Paper expected soon.
- Proposed changes will likely include giving schools greater responsibility for assessing and supporting SEND pupils, managing costs centrally from 2028, and basing reforms on principles of early, local, fair, effective, and shared support.
- EHCPs are apparently not being scrapped; existing protections are likely to remain, but the framework may evolve over time.
- The reforms could mean faster, more personalised support for families, but raise concerns about schools’ capacity and expertise, and potential conflicts of interest in decision-making.
The Government is planning the most significant overhaul of special educational needs and disabilities ("SEND") provision in a generation. For schools and families alike, understanding what may be changing has never been more important.
What is the current SEND framework?
A child or young person has special educational needs if they have a learning difficulty or disability which calls for special educational provision to be made for them.
The Children and Families Act 2014 ("CFA 2014") is the principal legislation governing this area. Under the CFA 2014, the Government has issued the SEND Code of Practice (the "Code"), which sets out the details of how schools and other bodies are obliged to identify, and provide support for children with SEND.
What is an EHCP?
In addition to the general obligations and principles set out in the Code, the needs of individual children can be catered for by specific Education, Health and Care Plans ("EHCP(s)").
EHCPs identify educational, health and social needs, and set out the additional support required to meet those needs. EHCPs often name a specific school (or type of school) which is best suited to the child's needs, and parents have the right to request that a specific school is named in their child's EHCP. Once named in an EHCP, schools (except for wholly independent schools) have a duty to admit the child.
Local authorities bear the brunt of the responsibility in respect of EHCPs, and have a duty to implement and maintain EHCPs, ensure the provisions of the EHCP are made, and carry out annual reviews of EHCPs.
How does the framework apply to independent schools?
All schools, including independent schools, must have regard to the Code.
However, independent schools (which are not special schools and have not been approved by the Secretary of State under section 41 of the CFA 2014) are not obliged to admit a child under an EHCP.
Whilst parents can ask for an independent school to be named in their child's EHCP, practically speaking, the local authority will need to see evidence that the child has already been offered a place at the school before considering whether it is appropriate to name the school in the EHCP; the local authority cannot simply oblige the school to admit the child.
Despite the limited impact of EHCPs in independent schools, it is important to remember that the Equality Act 2010, which prohibits discrimination against, and imposes an obligation to make reasonable adjustments for, disabled pupils, applies to all.
What has triggered reform proposals?
The SEND framework, including the provision of EHCPs, is marred by delays and poor outcomes for families, whilst at the same time becoming unsustainably expensive.
Between 2015 and 2024 there was a 140% increase (to 576,000) in children with an EHCP. Despite funding for SEND rising by 58% between 2014 and 2024 to £10.7 billion, the National Audit Office has said that this has not led to better outcomes for children with SEND.
Because of the significant financial burden on local authorities, in part due to soaring SEND costs, two fifths of local authorities are at risk of issuing section 114 notices by March 2026, effectively declaring bankruptcy. The National Audit Office has described the system as "unsustainable" and "in urgent need of reform".
What reforms are being proposed?
Over the past year, the Government has held over 100 engagement events with SEND stakeholders, carrying out what it described as "the biggest national conversation on SEND in a generation".
The result of these conversations will form the Government's "Schools White Paper", which will be published early this year, setting out the Government's proposed reforms to the SEND system. The Government has said that the key tenet of the reforms will be to give schools a greater role in deciding the levels of support required for SEND pupils, and to allow schools to deal directly with parents rather than through local authorities.
It has also confirmed that from 2028 onwards, future costs will be managed, in full, within the overall Government budget. This means that local authorities will not need to cover SEND costs from their general funds after the end of 2027-28.
The Government has indicated that the reforms will be based on five principles: early (children should receive support as early as possible); local (children should learn at a school close to home); fair (every school should be resourced to meet common needs); effective (reforms grounded in evidence); and shared (education, health and care services working in partnership).
The Government has also said it will continue to strengthen the mainstream provision, including by creating more specialist places in mainstream schools and providing more training to teachers.
Once the White Paper is released, the Government will launch a consultation on the proposals. Realistically, it is unlikely that any legislative changes will take effect before 2027-2028 at the earliest.
Will EHCPs be scrapped?
This is the question causing the most anxiety for parents.
The Department for Education has said that "there are no plans to abolish SEND tribunals, or to remove funding or support from children, families and schools", adding that it would be "totally inaccurate to suggest that children, families and schools might experience any loss of funding or support".
We will have to wait to see the White Paper, but our view is that children with existing EHCPs are highly likely to retain their protections, with established EHCPs either continuing unchanged or being converted to a new framework over time.
What does this mean for schools?
The proposals are still in their infancy, and we do not have enough detail at the moment. However, on what we do know, the proposed shift to schools taking greater responsibility for SEND support represents a seismic change.
If schools take on the responsibility for assessing needs and arranging support, they will need significant new administrative capacity, staff trained in SEND assessment, systems to manage SEND budgets, and legal expertise to handle tribunal appeals.
It is not clear to what extent wholly independent schools will be impacted by the changes. Independent schools should be alive to any changes that could directly impact them, and should also consider whether the changes affecting other schools could indirectly impact their own student intake.
What does this mean for families?
The changes could provide some good news for some families. Schools may assess and respond to children's needs more quickly than overwhelmed local authorities. Schools already know the children they teach, potentially leading to more informed, personalised support. Earlier intervention and more local provision could enable children to learn closer to home.
On the other hand, schools would be both decision-maker and provider, creating potential conflicts of interest. Questions remain about whether schools have the expertise to assess complex needs and arrange specialist provision.
The Education team at Mishcon de Reya
The delay to the White Paper is frustrating to families and schools who want to better understand the details of the proposals and involve themselves in consultation.
At Mishcon de Reya, our Education team advises both families and schools on all aspects of SEND law and disability discrimination, from EHCP applications and tribunal appeals to strategic advice on policy and provision. We will continue to monitor developments in this area, so we can provide clients with up-to-date, expert advice.