Government plans to remove SEND tribunals of their most significant legal powers are non-negotiable, according to lawyers, after the government told them it would will not consider feedback on this critical aspect of its SEND reforms.
The Department for Education (DfE) appears to have reached final decisions on important parts of its reforms to change the law and support related to SEND, two months before a consultation on the changes closes, according to The Law Society Gazette.
Under proposals outlined in the Schools White Paper last month, tribunals are to be the ‘last resort’ in conflicts over SEND provision and EHCPs, with most complaints being heard through independent mediation services in the future.
Instead, tribunals will focus on complaints relating to council decisions not to carry out needs assessments.
The changes have led to SEND campaigners and support groups threatening to legally challenge the proposals, which will end the tribunal’s power to name an education setting in EHCPs and water down children’s legal rights to specific provision.
‘No duty to consult’
The admission that tribunals will not feature in the consultation came in a Government Legal Department response to a letter before claim challenging the lawfulness of the consultation, and is said to be at odds with comments made by Bridget Phillipson (pictured), the education secretary, that the “consultation is our way to make sure we’re hearing your views before any final decisions are made”.
The letter before claim was sent on behalf of proposed claimant, Jessica Hayhurst, a child who has complex special educational needs and has an EHCP.
It asked the secretary of state to publish an amended version of the consultation to ensure it provides additional information for consultees and adds specific questions on key proposed changes.
However, the DfE has apparently refused. Jessica’s solicitor, Polly Sweeney, a partner at Rook Irwin Sweeney, said: “The secretary of state for education has now responded to our client’s letter before claim challenging the lawfulness of the SEND reform consultation.
“In headline terms, the education secretary’s position is that there is no duty to consult on these particular parts of the reforms (relating to the changes to tribunal powers and the shift of duty to deliver EHCPs away from local authorities to schools) in part because the decisions have already been made.
“Views on these issues are therefore deliberately not being sought as part of the consultation.”
Claire Dorer OBE, CEO of the National Association of Special Schools (NASS), said: “This is shocking and dispiriting news.
“Government continues to claim it is open to hearing and reflecting on views in the SEND reforms consultation but this weakens the credibility of those claims.”
Lack of detail on health
Experts also raised concerns this week about the lack of detail about the involvement of health services in delivering future SEND provision, despite ministers announcing plans for an “experts at hand” service that would involve schools tapping into the expertise of educational psychologists and speech and language therapists.
However, there is no clarity on how families can flag any concerns about their children or levels of service being received.
The DfE has been contacted for comment.
