Ten years ago, the “biggest education reforms in a generation” for youngsters with SEND gained royal assent under the Children and Families Act.
Billed as a “landmark moment” to improve SEND education, then children’s minister Edward Timpson said the reforms would “put children and parents at the heart of the system”.
Fast-forward to today, and the system is in crisis. Councils are on the verge of bankruptcy. Parents have to battle in court for promised support. Vulnerable children are waiting years for help.
Schools Week interviewed more than a dozen experts, including key decision-makers, to unpick what went wrong, and how we can fix it…
Parents promised more as austerity bites
The reforms replaced statements of SEND with education, health and care plans (EHCPs).
EHCPs put more emphasis on personal goals. They also clearly describe the support pupils will receive to meet those ambitions. And they were extended to 16 to 25-year-olds.
Very rarely do you get a window of opportunity to get legislation – you’ve got to grab it
Edward Timpson
The number of EHCPs across all ages has risen 115 per cent to 517,049 since 2015. There has only been a 6 per cent rise in school-aged pupils over that time.
Some of the main drivers include greater awareness of SEND, more complex needs and the extended age range. But some experts point to an austerity-driven decline in the ability of mainstream schools to provide general special-needs support. This has pushed more families into securing help via a plan.
The government’s 2022 SEND green paper admitted early years and mainstream schools were “ill-equipped” to identify and support pupil’s needs.
‘People have lost faith’
Brian Lamb, whose review influenced the 2014 reforms, said while there was an “understandable focus” on getting EHCPs right, there wasn’t “an equally balanced focus” on enhancing the “ordinarily available provision”.
The number of EHCP has risen more sharply than overall SEND identification in schools. This suggests families and schools felt plans were needed to guarantee help.
“You can see after about four or five years that, as people lost faith in many areas in what was available under ordinarily available provision, you start to get the real push for EHCPs.”
Support on offer under the new EHCPs became a legal requirement. Plans had to be issued by councils within 20 weeks and then reviewed every 12 months.
How do you do reform in an environment where money is so tight?
Hollowed out by their own austerity cuts, councils are unable to cope. Last year, just 49.2 per cent of plans were issued within the 20-week legal limit – the lowest ever. The figure is as low as three per cent at some councils.
Laura McInerney, co-founder of Teacher Tapp – who covered the issues while editor of Schools Week – said: “The good intentions of EHCPs destigmatised diagnosis and incentivised labels via a promise of support.
“Sadly, it came at the same time as local authorities (LAs) were made responsible for 19- to 25-year-olds, yet forced to make huge cuts. So, you’ve ended up with an open cheque book approach – but no open bank vault.”
The funding doom loop
Anne Longfield, former children’s commissioner, added that the “biting impact” of austerity meant wider support services, such as mental health, “have seen higher thresholds, less ability and capacity to be able to work in partnership outside their box, and a push away from early intervention and towards more costly intervention [for] much more acute provision”.
The gap between council spending on early and late intervention services in England widened to more than £7.7 billion last year. This is up from £3.9 billion in cash terms in 2015–16.
Unaddressed needs normally worsen down the line and costs everyone more. Councils have a combined deficit in their high-needs budgets – funding for children with SEND – of nearly £1.6 billion. More than half are now reliant on government intervention.
The government has committed to bailouts of more than £1 billion for the worst-affected councils under its “safety valve” scheme.
However, councils can only get the cash if they slash their own provision. One council recently refused a deal because the expected cuts would mean it would break the law.
High-needs deficits have sat off councils’ balance sheets for years. This measure was recently extended until 2026, after concerns removing it would bankrupt 10 councils.
Government has committed cash. Annual high-needs funding now sits at £10.5 billion – a rise of 60 per cent in just five years. But councils say it still doesn’t meet demand. Many are using the cash to fill black holes, rather than passing it on to schools as intended.
A third of councils did not increase top-up funding – additional school funding for pupils with high needs – between 2018 and last year. The £10,000 per-place funding special schools get for every child has remained static since 2014.
‘More difficult for schools’
Funding constraints mean mainstream schools are less able to cope with rising and worsening additional needs. At least two-thirds of special schools are now at, or over, capacity. Some are converting therapy spaces and cupboards into classrooms.
This has forced councils to use the more expensive private sector to meet demand. Yheir spend on independent special schools soared from £576 million in 2015-16, to £1.3 billion in 2021–22.
The 2010 academies act “neutered” councils from opening their own schools, said Warren Carratt, chief executive of Nexus MAT. This meant they were reliant on sluggish central government.
Ministers have committed £2.6 billion to expand specialist state provision between 2022 and 2025. But it’s coming too late, and many previously promised new free schools are still not open.
Timpson admitted “the way the system is funded has perhaps made it more difficult for schools to be able to respond and flex to individual children’s needs”.
He said it is not as “simplistic” as blaming austerity. But it “would be churlish to not admit” that having less money “can make it difficult to push the money that’s available into upstream services”.
Not enough workforce capacity building
Another big problem was implementation. Anne Heavey, a teacher at the time of the reforms, received just one afternoon of training on the new code of practice from her local council.
“We knew it was going to be difficult because we knew it was being rolled out in a difficult environment where there was massive reform in the school system,” said Stephen Kingdom, deputy director of SEND at the DfE in 2014.
Reforms at the time included exams, the new Progress 8 accountability measure and academy expansion.
Timpson “wished we had done more capacity building in the system before the legislation… the transition could have been slowed down a little. But I still strongly believe the overall legal framework that the act created is the right one.”
“Very rarely do you get a window of opportunity to get legislation and even less so on things like children’s social care or SEND – so you’ve got to grab it.”
Timpson lost his seat in the 2017 election, meaning new ministers took charge of the reforms. He said he fought “really hard” to get extra Treasury cash for educational psychologist training. But “it always feels like we are playing catch-up”.
Shortage of therapists and psychologists
There are wider workforce challenges. Last July, the vacancy rate for speech and language therapists (SALT) in England’s children’s services was 23 per cent, according to a survey by the Royal College of Speech and Language Therapists.
Recent ombudsman investigations revealed nearly 20 councils have, in part, blamed delays on EHCPs on a shortage of educational psychologists (EPs), who play a key role in needs assessments. Analysis suggests there are 381 fewer EPs in 2022–23 compared to 2010.
A damning 2019 report by the education select committee found that health and social care services were still not “equal partners” in the EHCP process, as promised.
Kingdom said the implementation focused “too much on the mechanics” of moving from statements to EHCPs.
“We did stuff on SENCO training and educational psychologists, but I don’t think we did enough on the workforce really at that time. We also lost a lot of expertise in local authorities.”
No enforcement means ‘endemic law breaking’
The education select committee also said the distance between young people’s lived experiences and ministers’ desks “is just too far”. Government had “failed to heed warnings” of the problems.
Ed Duff, education lawyer at HCB solicitors, said the “cooperation” required of local authorities under the reforms was “supposed to be this legal magic wand where ‘everyone’s got to behave nicely now because we told you too’. But it’s nonsense and meaningless without any enforcement or sanction.”
Families’ only appeal route against LAs breaching their EHCP duties is through first-tier tribunals. Appeals have more than quadrupled to 13,600 a year since the reforms came in. Tribunals now side with families in 98.3 per cent of appeals.
Between 2016 and 2022, 55 per cent of areas failed Ofsted SEND inspections. Since January 2023, under a new framework, a third have “widespread and/or systemic failings”.
Catriona Moore, policy manager at SEND charity IPSEA, said “non-compliance with the law is endemic” without “any real consequences for local authorities”.
But Kingdom said the DfE was “worried that if we got really hard on accountability from day one, we just break local authorities. We wanted to support them to change.”
The school system has fragmented since 2014, with the number of academies nearly doubling to more than 10,000.
Barney Angliss, SEND adviser, said this meant “local authorities have lost the close involvement with a lot of schools”.
What is being done to solve it?
The government has a plan. Its SEND reforms aim to shift towards more inclusive mainstream schools.
But only £70 million in extra funding accompanies the plan. National rollout is not expected until 2025 at the earliest.
Wider work is ongoing to better train teachers on SEND, including a bigger focus in the new teacher training framework.
Former children’s minister Claire Coutinho said it was “important that we consult and take time to get it right” – showing lessons have been learned”.
But change has been slow, with seven ministers since the SEND review launched in 2019. It’s likely a new government will have to finish the job.
Timpson admitted there has “just not been the political backdrop for the necessary ongoing and systematic focus”.
Labour said it will wait until after the election to set out its plan to tackle the “enormous” challenge facing the SEND system.
SEND one of accounts committee’s ‘big nasties’
Meg Hillier, Labour chair of the public accounts committee, warned that SEND had now become one of the government’s “big nasties” requiring “essential spending which cannot be put off”.
Sam Freedman, an ex-DfE policy adviser, said Labour would have no choice but to clear councils’ deficits.
“The question is do they just do that and try and reset the system? Or do they take the opportunity to try and do a bigger reform?”
If they choose the latter, the issue is “how do you do that reform in an environment where money is so tight and where there’s so much emotion and frustration”
The Local Government Association and County Councils Network have commissioned Isos Partnership to look at what a “financially sustainable” SEND system looks like.
Researchers have proposed “fundamental reform” of mainstream education, such as “national expectations of inclusion” and strengthening SEN support – for children without an EHCP.
They also suggest reform of the independent market with stronger regulation and a “national framework on rates to avoid fee inflation”.
‘Lack of clarity’ on good support
Timpson also warned the cash that councils get from government to spend on schools and children – “was – and remains – inflexible. It may not be spent on other local government functions.”
A “more pragmatic approach would have enabled the funding to be deployed to greater effect”.
Moore said inclusivity in mainstream schools was made harder because support for pupils with SEND but without EHCPs is not defined in law. This means “a lack of clarity” on what good support looks like.
Making this statutory, by inserting a new section in the Children’s and Families Act, would “focus minds in education settings” to provide what children need. But again, leaders say this requires extra funding to rebuild the services cut via austerity.
This week, children’s commissioner Dame Rachel de Souza recommended that an Ofsted and Care Quality Commission inspection should be triggered by council failures exposed during the tribunal process.
Either way, Kingdom says a “culture change” is essential.
Last month, three councillors at Warwickshire County Council were removed from a committee after questioning whether some SEND children “were just really badly behaved” and “needed a form of strict correction”.
“Do we have a system that is really about achieving the best for all children?” he added. “If we change that culture and attitude, then we can get in earlier and provide that support.”
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