Government threatened with legal challenge over “unfair and irrational” SEND reform consultation

The consultation, “SEND reform: putting children and young people first”, outlines the Government’s proposed approach to SEND reform in England, and invites views and responses to 40 specific questions from anyone with an interest in the proposed reforms by 18 May 2026.

Within its package of proposed reforms set out in the consultation document (and Schools White Paper), the Government proposes to:

• Change/remove powers of the SEND Tribunal in relation to Education, Health and Care Plans (EHCPs) as currently set out in the Special Educational Needs and Disability Regulations 2014, including the SEND Tribunal’s power to order that a particular educational placement be named in Section I of an EHCP and to order amendments to the special educational provision in an EHCP; and
• Shift the legal duty to schools “to deliver the educational offer in an EHCP”, rather than this duty remaining with the local authority as is currently the case.

Rook Irwin Sweeney said the proposed claimant has complex special educational needs and has an EHCP. She attends an independent special school.

According to the law firm, her mother is concerned that the proposed changes are likely to have a “very considerable impact on parents’ appeal rights and the enforceability of EHCPs generally”.

Rook Irwin Sweeney said: “Despite this, there are no questions at all in the consultation inviting participants’ views on these proposals.

“In addition, the consultation does not fully explain the implications of these changes which are referenced only in the most cursory terms. The proposal to shift the legal duty to secure provision in EHCPs onto schools away from local authorities is mentioned in the briefest way possible, by way of a single bullet point in a lengthy list.”

The claimant is asking the Secretary of State to publish an amended version of the consultation to ensure it provides additional information for consultees, and adds specific questions on the proposals.

Representing the claimant, Polly Sweeney said: “It is of real concern to our client that the consultation omits to include any questions on these important proposals which would appear to significantly weaken legal rights of children and young people with SEND and their parents. This is not fair.

“More generally, is very difficult to reconcile these proposals with the Government’s stated aims to improve outcomes for children and young people with SEND and strengthen the law.  If it is truly committed to ‘the realisation of children’s rights’ and a ‘moral mission to do our very best by each and every child in our county’, as its consultation response suggests, then why are legal rights being significantly weakened under these reforms? And why is the Government avoiding asking people for their views on these proposals?”.

The full letter before claim can be seen here.

Polly Sweeney and Beth Parr of Rook Irwin Sweeney are acting for the claimant in the case, funded by the firm’s Social Justice Fund, and with pro bono support being provided by Steve Broach KC of 39 Essex Chambers as Counsel.

A Department for Education spokesperson said: “Our SEND reforms are ensuring children get the right support earlier, in their local school, without having to fight for it, and are being co-designed with parents so everyone has confidence in the system we’re building.

“We are introducing Individual Support Plans for every child and young person with SEND, including those who have an EHCP. ISPs will be updated annually at a minimum, ensuring children's needs are identified and met at the earliest opportunity.

“EHCPs will continue for children with complex needs, and we will not remove the right for parents to appeal decisions made regarding their child's EHCP.”

Lottie Winson