Schools “in the dark” about many practical and legal implications of SEND proposals, law firm warns

Stone King noted that without greater clarity, there is the potential for increased disputes between parents, schools and local authorities about the availability of support for individual children.

Meanwhile, the law firm warned the reforms could create additional problems for schools. It said: “Expectations are to be placed on them to deliver inclusive education for a greater range of children with complex needs. However, there is a lack of certainty about how the system of graduated support will be defined through the National Inclusion Standards; what duties may apply to the implementation of Individual Support Plans; and how access to Local Authority services (“Experts at Hand”) will be allocated.

“This is in the midst of growing frustration from parents, who may lose access to mediation and tribunal routes currently available under the existing system.”

The firm claimed this could lead to a “significant increase” in complaints and disability discrimination claims against schools unless the Government provides greater clarity on the legal obligations of schools and local authorities, their interaction with the Equality Act, and parents’ routes of complaint and/or appeal.

Stone King also raised concerns about the scale of the “administrative burden” the reforms could create.

Under the proposals, schools would be required to produce and formally review ISPs for every pupil on the SEN register, alongside new Inclusion Strategies.

The firm’s consultation response outlined concerns that schools could be held legally accountable for provision they may be unable to secure due to shortages in external specialist support, including speech and language therapists, occupational therapists and educational psychologists.

It added that schools may be forced to operate “two SEND systems at once” for the first five years of the transition period, creating “duplication, confusion and inefficiency across schools, local authorities and tribunals”.

Within its consultation response, the law firm called on the Government to:

• Retain the current legal “best endeavours” condition for schools;
• Introduce fair and manageable complaints procedures to avoid costly disputes;
• Provide urgent clarity on schools’ legal duties under the new framework and the Equality Act;
• Reduce bureaucracy around Individual Support Plan reviews for stable or lower-needs cases; and
• Ensure additional support is targeted at local authority areas already struggling with SEND backlogs.

Richard Freeth, partner at Stone King said: “Schools we have spoken to absolutely support the principle of a more inclusive SEND system, but there is growing concern that the reforms lack detail to allow schools to properly assess what the responsibilities will look like if the reforms are implemented.

“The biggest message we are hearing from schools is that they need clarity. They need to know exactly what will be expected of them, where accountability will sit, and what protections will remain in place when support services outside their control simply aren’t available.

“The current system does not work for a lot of children, which in turn places considerable pressure on schools. If the Government reduces access to EHCPs while simultaneously increasing schools’ legal duties, there is a real danger that the partnership between schools, parents and children will be damaged.

“These reforms can only succeed if they are grounded in the operational realities schools face every day. The risk otherwise is that expectations rise far faster than schools’ capacity to deliver.”

The Department for Education has been approached for comment.

Lottie Winson