The government has insisted it is still consulting on proposed changes to the SEND appeals system, despite its own lawyers previously saying ministers have already “made decisions about them”.
As part of widespread reforms to the SEND system, the Department for Education has proposed the legal duty to fulfil provision outlined in an education, health and care plan (EHCP) be shifted onto schools, rather than local authorities.
While the consultation said families would retain their right to appeal aspects of an EHCP through tribunal, there are no questions directly referencing the changes to legal duties proposed.
55% rise in appeals
In February public law and human rights firm Rook Irwin Sweeney launched a legal challenge on behalf of pupil Jessica Hayhurst, arguing that the consultation was “unfair and irrational”.
The letter initiating the judicial review claim said: “The proposal to shift the legal duty to secure provision in EHCPs to schools away from local authorities is mentioned in the briefest way possible, by way of a single bullet point in a lengthy list.
“The consultation does not include any questions inviting participants’ views on these proposals and does not fully explain the implications of these changes, which are referenced only in the most cursory terms.”
The number of SEND appeals rose by 55 per cent from less than 14,000 in 2022-23 to 21,000 in 2023-24. Last year, 95 per cent of the cases decided were in favour of parents.
Lawyers’ SEND letter
A letter sent by the government’s legal department on March 18 said education secretary Bridget Phillipson was “not consulting” on “the duty to deliver the educational offer in an EHCP being placed on schools, and as to the tribunal’s powers on an appeal”.
The legal letter said that there was “no duty” to consult on matters that had already been decided on.
But, when approached by Schools Week, the DfE said it was consulting “across the full set of proposals, seeking views on how the system delivers placements, how decisions are made, how they are challenged, and how we ensure families get the support they need”.
The DfE added that the legal response referred to specific legal arguments raised in the letter before claim, but the department failed to explain why the language in the letter appears at odds with their wider response.
‘Urgent explanation’
Ministers will be hosting events across the country to discuss reforms with parents, campaigners and experts, and no decisions are final until Parliament has considered the legislation.
There will be five online sessions and eight in-person sessions for parents in April and May. There will also be four sector events.
When asked why the consultation document had no question addressing the changes to appeal, the DfE said it was designed to ask “how the whole system works for families”.
Polly Sweeney, representing those taking legal action, said: “The DfE’s most recent public position appears to be directly at odds with what is said in the government’s official legal response to our client’s letter before claim.
“We have asked for the secretary of state to provide an urgent explanation.”
