Lawyers send formal pre-action letter over Surrey SEND failings

Lawyers at Irwin Mitchell have sent a formal pre-action letter to the council on behalf of four affected young people and campaign group ‘Measure what Matters’.

The group warns that a child’s education should “never depend on whether a council has completed its internal paperwork” – noting that evidence it has gathered suggests internal approvals, commissioning arrangements and administrative processes are determining when, and sometimes whether, children receive the education and support the law says they are entitled to.

The group said on its Crowd Justice page: “At the heart of this proposed challenge is one question: when the law says a council must secure a child’s provision, can its internal processes be allowed to determine whether and when that provision is actually delivered?”

According to Irwin Mitchell, the proposed challenge concerns whether the council’s commissioning, funding and internal approval processes are unlawfully delaying or preventing children and young people from receiving the provision they are legally entitled to.

It encompasses arrangements for commissioning special educational provision, personal budgets and direct payments.

The four cases sit within wider concerns reported to Measure What Matters.

The campaign group observed: “Among the six largest county councils, a search of recent published Local Government Ombudsman decisions returned 107 serious upheld complaints about Alternative Provision.

“Of those, one local authority alone, Surrey County Council, accounted for 44 - more than twice the number in any other council in the comparator group.”

The families of the four children and young people claim they have been left without all of the educational provision specified in their EHCPs.

The families argue that extended delays in commissioning, funding and internal approval processes have prevented all of the provision in their EHCPs from being secured.

Issues described in the pre-action letter include:

• delays affecting specialist mentoring and other support
• an Education Otherwise Than At School (EOTAS) package for one child, funded via a personal budget, where funding for existing providers has not been agreed
• A child who remained without significant elements of their EOTAS provision
• A family who say elements of their child’s therapeutic and educational support have either not been put in place or are being delivered by providers without confirmed funding arrangements, leaving continuation uncertain.

Irwin Mitchell noted that under section 42(2) of the Children and Families Act 2014, local authorities are required to secure the special educational provision specified in an EHCP. "The pre-action letter argues that Surrey County Council's practices are unlawfully frustrating that duty."

Earlier this year, it emerged that Surrey County Council had been formally sanctioned by the Special Educational Needs and Disability (SEND) tribunal in 38 cases between February and June 2025, stemming from missed administrative deadlines.

The figures were revealed in a Freedom of Information (FoI) request by Chris Coghlan, the Liberal Democrat MP for Dorking and Horley, who accused the authority of "wrecking children's lives", according to the BBC.

The council said the notices were issued during a period of “exceptionally high demand”, when around 725 tribunal cases were open.

Abigail Hands, a specialist SEND solicitor at Irwin Mitchell, said: “These families have turned to us because they are deeply concerned that children and young people are not receiving all of the educational provision set out in their EHCPs.

“Internal commissioning and funding processes should not stand in the way of the support that children and young people are legally entitled to receive.

“We have now asked Surrey County Council to urgently address our clients’ concerns and explain what action it will take to ensure that every child and young person they are responsible for receives the provision they are entitled to.”

A spokesperson for Measure what Matters said: “For children who cannot attend school, a failure to commission or fund their provision can mean being left at home, with no access to education or specialist support for weeks, sometimes months. The impact on children and their families can be devastating.

“Complaints, Ombudsman findings, political pressure, media investigations and individual legal action have already exposed serious failures in Surrey’s processes and secured vital help for some children. Yet resolving one child’s case appears to leave the practices behind it untouched. One child’s education is restored. Another family starts the same fight. Those without the resources, capacity or strength to keep challenging are left behind.

“This is why this challenge targets the council’s processes. Resolving individual cases is not enough when the same practices and policies leave children without provision again and again. Public authorities have discretion over how they organise their services. They cannot organise away their responsibilities.”

A council spokesperson said: “Surrey County Council remains committed to improving outcomes for children and young people with special educational needs and disabilities (SEND), working closely with families, schools, health partners, and the Department for Education.

“We recognise the challenges facing the SEND system both locally and nationally and continue to focus on delivering the improvements set out in our SEND Improvement Plan.”

It declined to comment further on the legal action.

According to Irwin Mitchell, the council has been asked to respond by 4pm on 26 October 2026.

The letter states that, without a “satisfactory response”, the families and Measure what Matters reserve the right to issue judicial review proceedings and seek interim relief.

Lottie Winson