Special schools have threatened England’s largest council with legal action unless a proposed new inclusion strategy that they say will “harm” pupil outcomes and “dismantle” successful provision is ditched.
Kent County Council plans to implement widespread reforms to provision for pupils with special needs following damning Ofsted inspections.
Mainstream schools are to be more inclusive and high-needs spending brought under control.
Senior councillors last week “endorsed” one part of the plan to change admission guidance and the designated needs that some special schools cater for.
This is to ensure pupils with “severe and complex” needs get allocated a special school place from September 2026.
Christine McInnes, Kent’s director of education, previously told Schools Week that a third of special schools “reflect our selective system in secondary schools” as they have “very, very restrictive admissions criteria”.
Plan to change seven schools’ designations
Seven schools’ designations would change under the plans. Most would change from catering for pupils with “communication and interaction” issues to those with “neurodivergent and learning difficulties”.
A recent consultation found 70 per cent of 1,350 respondents opposed the changes. But they were endorsed by a council cabinet committee on Thursday last week.
Now, the Kent Special Educational Needs Trust (KsENT), which represents special schools in the region, has written to the council to threaten legal action.
“Should the proposals continue to progress, KsENT will be instructing counsel to consider bringing a claim in judicial review against both the consultation and the decision itself,” the letter, seen by Schools Week, states.
It’s understood funding of any potential judicial review would be shared by 24 schools.
Move shows challenge for government
The move is a stark example of the potential challenges ahead for the government in its push to make schools more inclusive, without providing additional funding.
Kent said that admission guidance for “communication and interaction” schools currently “excludes those who are not attaining within two years of their chronological age”.
This means some pupils missing out on places are “being failed by the current system and will directly benefit from the recalibration how existing provision is used”.
One head, who wished to remain anonymous, said opposition from the schools was “deeply disappointing” and just an “attempt to cling on to the children they serve – who should really be in mainstream”.
But KsENT, in the letter also sent to the Department for Education, said the proposals were “deeply flawed”. They claim the consultation was “unlawful” and engagement with schools “disingenuous”.
Arguments include that the plan would mean special schools no longer catered for pupils who have physical or mental impairments, but who did not have learning difficulties.
They say this will lead to parents instead requesting costly independent special schools – something the council is trying to cut down on after its costs on such provision soared to £67 million in 2022-23.
‘Very disappointing’
Simon Beamish, the chief executive of the Leigh Academies Trust, which runs one of the special schools, said it was “very disappointing” Kent was going ahead.
The trust was working with KsENT on “the legality of this plan”, with the “possibility of a judicial review”.
Consultation documents show parents had a “general lack of confidence” in mainstream schools to meet their child’s needs, with fears they may “fall through the gaps” when designations change.
But Kent said there was “clear evidence” many mainstream schools were successful in helping these youngsters. Changes were also part of a broader transformation programme, including more schools setting up specialist resourced provision.
Changes would also “improve accessibility” so pupils could stay in their local communities.
In response to concerns that specialisms would be “diluted”, Kent said special school staff were experts in adapting curriculums, assessing individual needs and monitoring progress.
It expected schools to work together “to develop their knowledge and skills on specific interventions they may or may not have experience of previously”.
‘Working constructively’
Kent said changes would apply to youngsters placed in special schools from September 2026 onwards, with changes introduced incrementally.
Pupils already in special schools would have their needs and suitability of placements considered in the annual education, health and care plan reviews.
Councillor Rory Love, Kent’s education lead, is awaiting the outcomes from a scrutiny committee inquiry on SEND improvements before making any final decisions.
The council would also need to publish a statutory notice of changes, triggering further public engagement.
A Kent spokesperson said they were “working constructively” with school leaders. The reforms “will enable children to have the right education in the right place, and reach their full potential”.
I was, until recently, a senior leader responsible for SEND in a girls’ school in Kent. Having proposed a specialist resourced provision (SRP) for this girls’ school, KCC took months to respond, eventually declining to advance the application as there is already a SRP locally.
In a boys’ school.
Not so good for the girls who needed the same support.
This is the level of competence of KCC.