After 1,274 frustrating days, the perennially delayed plan to fix a SEND system on the brink of collapse was published in March 2023.
The fact a plan was needed at all was a sign of remarkable failure. The SEND review was launched by the Conservatives just five years after their “landmark” 2014 reforms.
Ministers at the time said the “biggest education reforms in a generation” for children with special needs would “put children and parents at the heart of the system”.
Instead, they have left pupils waiting years for help, financially ruined parents fighting in court for support they are legally entitled to, and effectively bankrupted councils.
What went wrong, and can it be fixed? Schools Week looks at the SEND reforms…
How did it go so wrong?
The key change in the 2014 Children and Families Act was replacing statements of SEND with education, health and care plans. But this also included expanding the age range to 25 for youngsters who could now get support.
However, councils didn’t get enough extra cash to pay for it. So youngsters and their families – who now had a bigger say in choosing support – were promised more than local authorities could provide.
Councils have racked up deficits of £1.6 billion on their budgets for pupils with high needs. So now many just simply refuse to provide support – forcing those few parents who can afford it to spend cash fighting them in court.
The number of SEND tribunals has quadrupled to 13,600 since the reforms. In 2022-23, parents won 98 per cent of the time.
Georgina Downard, senior solicitor at legal charity IPSEA, says because tribunal hearing dates can be nearly a year away “councils can put off complying with the law until they’re forced to”.
A former government adviser says the 2014 act was “one of the worst bits of reform of the last 15 years”.
“They’re a disaster because they create crap incentives in the system whereby you as a parent have to fight really, really hard for your kids – but effectively there’s no ceiling on what you can achieve.”
The comment hints at a heavily-disputed claim about the reforms: that EHCPs have now become a “golden ticket” for parents. The number of EHCPs issued has soared 139 per cent since 2015.
But Stephen Kingdom, deputy director of SEND at the Department for Education in 2014, says: “The core rights of the 2014 [act] are the core rights of what was there before.
“If parents are willing to fight that hard for something it’s because their children’s needs aren’t being met, not because they could just get that little bit more if they keep fighting.”
Wider support ‘disappearing’
Under the reforms, health and social care services were supposed to be “equal partners” in the EHCP process. But a damning 2019 education select committee report found that wasn’t the case.
MPs were told cuts to health and social care were “often unnoticed and unmentioned, and they were undermining the reforms”.
Margaret Mulholland, SEND specialist at the ASCL school leaders’ union, says the support is “disappearing by stealth. No one’s fought hard enough to say ‘hang on – we cannot lose these elements that enable the system to function properly’.”
She wants NHS and social care embedded in the standard provision in schools for children with SEND, rather than just when more specialist and targeted support is needed.
Wider cuts have also had an impact. The gap between council spending on early and late-intervention services in England topped £7.7 billion last year. This is up from £3.9 billion in 2015-16.
Kingdom adds: “We’ve taken away Sure Start. Social care is purely at the hard intervention end, rather than early support. We’ve cut back health services so community services have dropped off. We’ve cut schools’ funding to the bone so there’s not that wider support in schools.
“And then we find we have greater needs which in the SEN world is coming through with more children not having their needs met, issues escalating and the need for more expensive provision.”
The risk that high-needs pressures “continue to outstrip available funding significantly, making the SEND and AP system financially unsustainable”, is now viewed by the government as “very likely”.
It’s a timebomb that could go off soon. The last government allowed councils’ high-needs deficits to sit off their balance sheets while they tried to get the mess under control. That is due to end in 2026.
The main government intervention to solve the council spending crisis is the ‘safety valve’ scheme.
Councils with the biggest deficits have received bailouts of £1 billion, but in return they must overhaul their own provision – essentially cutting services further.
One council refused a deal because it said expected cuts would break the law.
And Mulholland adds “too often” the money “designed for high-needs provision is being used for deficit recovery and not making it to the frontline”.
“We’ve got more money than ever coming into the SEND system, but the amount getting into schools is just not keeping up with the costs of delivery. What is the end game on that?”
More capacity building
At the time of the 2014 reforms, the then education secretary Michael Gove’s wider education reforms were bedding in.
Kingdom says the department had not “properly understood the implications” of putting councils “very much at the centre of responsibilities” on SEND – while their powers elsewhere were taken away.
“The biggest lesson is if you try and reform the SEND system on its own – as in you deliver for disabled children just by creating a system for them – you set it up to fail.
“Because what happens is the wider school system actually has more bearing than what the SEN systems are doing.”
Edward Timpson, the children’s minister who led the overhaul, says he “wished we had done more capacity building in the system before legislation… but I strongly believe the overall legal framework the act created is the right one”.
A 2019 report by the education select committee was damning: “Let down by failures of implementation, the 2014 reforms resulted in confusion and at times unlawful practice, bureaucratic nightmares, buck-passing and a lack of accountability, strained resources and adversarial experiences and ultimately dashed the hopes of many.”
So the SEND review was launched. But two years later, all that existed was a “terrible” draft paper with “little substance” and “without very much direction coming from anywhere”, a source close to the process said.
“Quite a few people who got shown drafts said this is a disaster, you can’t put this out.”
Despite mounting pressure, it was clear the government had learnt its lesson. They wouldn’t rush this again.
The plan was rewritten and the green paper landed in 2022 before a finalised SEND and AP improvement plan was published in March last year.
Ministers believed new national standards – published by 2026 – would solve the so-called “postcode lottery” in SEND services. These would include setting out how needs are identified, where pupils should be educated and which budgets should pay for the support.
It would be underpinned by a new system of funding bands, again for more national consistency, and price tariffs to set limits on what councils pay providers.
One controversial element is providing a “tailored list” of suitable schools for parents to choose from – seen by some as restricting choice. Essentially, ministers are adding an affordability element into the support being offered.
Leora Cruddas, Confederation of School Trusts chief executive, says while the green paper “did a decent job of analysis of the problems” there was “never an attempt to describe an ‘end state’”.
She adds: “What would the system look like if it was working well? Without doing this work, we cannot describe the policies and legislation we need to reach the end state.”
Inclusive schools, but how?
At the heart of the DfE’s plan is an ambition for mainstream schools to become more inclusive.
Its own research found a “minority of schools and trusts using inappropriate and unlawful practices to avoid admitting pupils with EHCPs”. This happened “subtly” and “overtly”, it added.
In a bid for greater accountability, the green paper pledged to publish contextual information alongside performance data to “make it easier to recognise” schools that were “doing well for children with SEND”.
But officials later decided doing so “risked generating perverse incentives”, so they dropped it.
For instance, low EHCP rates could be explained by a school being in an area where the council was woeful at approving plans.
SEND reforms have focused on the process of assessment and diagnosis, at the expense of focusing on how schools can provide support
Instead, the national standards will act as a first step towards more inclusivity.
“Once schools are told what they should be doing, it’s easier to line up other services to encourage that to happen,” says one ex-adviser. “It’s more about nudging from every angle rather than creating some new programme called the ‘national mainstream inclusivity programme’.”
But Tom Rees, chief executive at Ormiston Academies Trust, says an “inherent flaw” is that the “school system is not set up in a way that can deliver against the volume of EHCPs which are, in effect, individualised, personalised contracts” and vary in scope and quality.
“Mainstream schools are designed to deliver to children with a broad range of needs, but if you’ve got over 70 EHCPs and each of those is very individual and personalised, it’s unrealistic for a school to deliver these effectively.
“SEND reforms have focused on the process of assessment and diagnosis, at the expense of focusing on how schools can provide support. And that’s at the heart of so much of the tension.”
And Tim Coulson, chief executive of Unity Schools, says the system is struggling because “we’re putting our resources and energy into trying to create more specialist provision” instead.
Two-thirds of special schools are now over capacity, meaning councils are forced to place more youngsters in private special schools which typically cost twice as much.
Councils’ spend on independent provision soared by 125 per cent to £1.3 billion in 2021-22.
Coulson adds: “We’ve got to put our energy into equipping school staff with the skills to deal with more children than they previously thought was in their capability.”
And special schools’ expertise should be utilised more, says Simon Knight, joint headteacher at Frank Wise special school in Oxfordshire. “From a policy point of view, special schools are too often an afterthought. We have to lobby hard to be included rather than being there by default.”
Other experts point to a lack of focus on enhancing the “ordinarily available provision” in schools for children with SEND, and say inclusivity has been made harder as support for those without an EHCP is not defined in law.
Part of the problem is that “the country relies on governments spending time on difficult things that have no political merit,” warns Laura McInerney, co-founder of Teacher Tapp and former editor of Schools Week.
“And when governments choose to focus their efforts on policies that are making headlines, the most vulnerable people suffer.”
Comparing SEND to the water company sewage scandal, she adds: “No one on the doorstep 10 or 12 years ago really cared deeply about sewage, but if you don’t fix the sewage pipes for 20 years and now sewage is all over the streets, they will.”
SEND crisis goes mainstream
The rising pressure in SEND – and the knock-on effects – has catapulted the complex issue into mainstream debate.
It’s often the most frequently raised issue at education debates by MPs of all parties and was a key concern raised on doorsteps during this year’s general election campaign.
Yet politicians have “failed to grasp and understand the core issues at the heart of it,” says Andrew O’Neill, headteacher at All Saints College in London.
“It is a mark of absolute shame that we know the base root of the problem and yet nothing has been done about it.”
And Alistair Crawford, co-chair of the National Network of Specialist Provision, believes a “deficit narrative” across the system on SEND can make things worse.
“We’ll hear professionals and politicians talking about ‘funding black holes’ and ‘high-needs block overspends’.
This creates almost a subconscious deficit narrative that moves us away from a focus of providing high quality provision and aspirational opportunities for the most vulnerable learners.”
It’s going to be really hard – you’re retracting [support] and this will look like there’s potentially less choice for parents
But leaders are concerned that without extra funding and resources in mainstream schools the government’s plan may not be realised.
Lucy Heller, chief executive of Ark Schools academy trust, told the Festival of Education that making schools more inclusive could be done with better “training for teachers [and] decent funding for schools”.
But “it’s really difficult to see how we get there and it’s going to be really hard – you’re retracting [support] and this will look like there’s potentially less choice for parents”.
Identification ‘postcode lottery’
Nearly 20 per cent of pupils now have a special educational need but the government’s green paper admitted early years and mainstream schools were “ill-equipped” to identify them and provide support.
Most identification of SEN falls at schools’ doors. Pupils can be added to the SEN register for the lower level “SEN support” or they can apply for an EHCP assessment, although a diagnosis is not required for statutory support.
However, research by the Education Policy Institute in 2021 found the chances of receiving SEND support was largely dictated by the school a child attends, rather than their individual circumstances or where they lived.
Pupils in the most disadvantaged areas were less likely to be identified with SEND, suggesting an inequality problem.
Jo Hutchinson of the Education Policy Institute adds: “If you can’t identify properly, you can’t do teaching properly”.
Meanwhile, the focus in teacher training has been on children’s cognition with “very little focus on social and emotional development”.
Downard adds: “A lot of it does fall to the schools to pick up on things, and educational psychologists and LAs aren’t sitting in the classrooms with these children.”
But we don’t have “a good evidence base” on diagnosing SEND, a former government adviser said, unlike in the NHS where the National Institute for Health and Care Excellence sets this out for health needs.
“The code of practice is needs neutral, it doesn’t say ‘for this child with these needs here are effective interventions you should consider’,” the ex-adviser adds.
“It means it’s easy for things that are a waste of money to propagate through the system and makes it difficult for parents to know what their child should get.”
Ultimately, for Rees, the label of SEND itself is “unhelpful” and “flawed”.
“I understand there needed to be some sort of general legislation under which these other categories exist, but fundamentally, my view is in 10 years’ time we shouldn’t require the categorisation of SEND as a generic label, because the system itself will be able to deal with different known conditions in a more expert way.”
What next for the broken system?
SEND has not been high on the political agenda in recent years. A turnover of seven children’s ministers overseeing the reforms under the previous government didn’t help.
Labour has tried to offer reassurance it will improve inclusivity, expertise and capacity within mainstream schools, while special schools cater to those with the most complex needs.
But they warn of no “magic wand” and have yet to reveal a practical plan as they “carefully consider” the “entire approach”.
One of the first changes was moving SEND from the families group into the schools group at the Department for Education, something welcomed by many leaders.
One of the big questions facing the department, as well as the Treasury, is whether they will write off councils’ deficits. If they do, what system change would be needed at the same time to stop the cycle happening again?
Kingdom warns Labour must “not weaken protections” but “be realistic with the Treasury about what the funding position is”.
The “change programme”, launched under the previous government to test their improvement plan reforms, continues. Labour’s direction on this is not clear.
A former civil servant says departmental advice to Labour will likely be to “stick with the current plan that we are all invested in”.
“If you started from scratch again there’s another green paper, consultations and pilots – that’s three years gone and you can’t legislate on special needs at the end of parliament.”
But Matt Keer, SEND specialist at the Special Needs Jungle website, says it is “genuinely staggering” SEND system leaders are “still talking and not doing”.
“Most people on the front line would say we know what the problems are, but they have very different opinions on solutions. But standing still has made things markedly worse.”
