Judicial Review application issued against SEND reform consultation

Represented by law firm Rook Irwin Sweeney, the claimant is severely autistic, non-verbal, has complex special educational needs and disabilities (SEND) and attends an independent special school.

Bringing the case with her mother Melissa Hayhurst, acting as her litigation friend, the claimant argues the consultation failed to provide consultees with “sufficient information” about the proposals, and ask key questions of consultees.

In February, the Secretary of State for Education published a consultation on her proposed reforms to the special educational needs system in England, alongside a White Paper, ‘Every Child Achieving and Thriving’.

The consultation contains proposals for reform of the system of provision for children and young people with SEND, including changes which would alter existing legal rights and protections for disabled children and young people with SEND and their families.

Rook Irwin Sweeney observed: “The proposals include changes to the form and function of Education, Health and Care Plans (‘EHCPs’), limitations on access to and enforceability of specialist provision, and significant changes to the current powers of the independent Tribunal and rights of appeal.”

The claimant’s solicitors have now applied to the High Court for a judicial review of the consultation, arguing that:

• the consultation fails to make it clear to consultees that the proposal would reduce existing rights and entitlements;
• consultees are not invited to provide their views on some of the most fundamental changes;
• it is unclear which proposals remain under consideration and to what extent decisions have already effectively been made;
• there are no consultation questions on key aspects of the proposals, particularly those which would reduce existing rights and protections; and
• there is no evidence at all that the Government has properly considered vulnerable children and young people educated outside of school settings.

According to Rook Irwin Sweeney, the claim is supported by a number of organisations and families of children with special educational needs and disabilities, who have provided evidence about the potential impact of the reforms and their concerns regarding the consultation process.

Melissa Hayhurst said: “Children like [J], who is severely autistic and non-verbal, cannot advocate for themselves and rely entirely on the adults, systems and legal protections around them. For many families, those protections are not theoretical, they are what stand between a child receiving the education, care and support they need, or being left without it.

“As a SEND community, there is enormous distress and disappointment that changes with such profound consequences appear to be progressing without families being clearly told what is truly being proposed and what rights and safeguards could potentially be lost. Parents already navigating an exhausting and often adversarial system need transparency, fairness and support, not further uncertainty and fear.”

She continued: “We all want a system that works better for SEND children and families. But reform cannot come at the expense of accountability or the legal protections many disabled children depend upon to access education, specialist provision and the opportunity to thrive.

“We believe families deserve a consultation process that is open, honest and genuinely meaningful. One that properly explains what is being proposed, allows parents to fully engage with the implications, and gives them confidence that their voices, concerns and lived experiences are truly being heard before decisions of this scale are made.

“I want to thank our exceptional legal team for standing alongside us as we take this action on behalf of Jessica and so many other disabled children and families whose futures may be impacted by these proposals.”

The Department for Education has been approached for comment.

Lottie Winson