Children with SEND are missing out on education – something needs to change: Sarah Woosey

The upshot? More and more children are missing out on vital education.

To make matters worse, there is a lack of communication between the local authorities and the families affected and, in most regions, there is no clear and transparent plan of action in place to address what is a growing area of concern.

When highlighting the scale of this issue, it’s probably helpful to clarify the legal duty of each local council.

Local authorities are under a duty each year to name a secondary school for those children due to transfer. For children with Education, Health and Care plans (EHCPs) who have significant special educational needs, this must be done no later than February 15 in the year of transfer.

This is a deadline set out in legislation.

While there is a duty to ensure that all children are receiving suitable education in accordance with S19 Education Act 1996, for children with EHCPs and therefore significant SEN local authorities are required to ensure that children are placed in schools which can meet their specific needs.

Where possible they should also be in a school which complies with their parents’ preference, unless certain criteria is met as to why they can depart from such a preference, and there is also a general duty on local authorities to ensure that there is a sufficient number of school places in their area.

Funding should be allocated per child, and that should be used to ensure that their individual needs are met as outlined in their EHCP - a crucial document that is legally required to describe a child’s special educational needs along with special needs, support they require and objectives they would like to achieve whilst transferring between education phases.

So, what’s going wrong? According to the latest government data, just under 1.5m pupils in England have special educational needs – an increase of 77,000 from 2021.

Whilst on paper the funding has also increased to meet the additional demand, the reality is that the infrastructure is simply not in place to realistically meet the needs of each and every child. Now, that in itself doesn’t detract from a local authority’s statutory (duty to provide a suitable school place for every pupil, but from a practical perspective, it does.

As an education lawyer, a decade ago we would have expected to take a school placement decision to appeal, with a hearing taking place within a matter of weeks to perhaps three to four months, maximum. The dispute would be between two schools; the parents preferred school and the local authority’s preferred school.

Now we are seeing an increasing number of families come to us where there is general agreement between the local authority and the family that the child is not appropriately placed but where neither the parent nor the local authority are able to find a suitable alternative.

There are simply no places left and while there are some areas that are worse than others, this is, sadly, a problem that exists across the nation.

The lack of spaces is not always the main source of frustration for most of our clients, however, as many also complain of a lack of transparency and clear communication about how the local authorities are tackling the problem.

There is a lack of joined up working and open channels of communication between the relevant professionals and the families who are suffering at the heart of this. There were protests by parents in Oxfordshire at the end of 2022 because the situation got so bad, and parents referred to being ‘ghosted’ by the local authority.

While no one expects each council to magically create new school places overnight, what we should be able to access is an action plan detailing what measures are proposed to deal with the issues identified, and within what timescale.

That though is rarely, if ever, forthcoming. And therein lies the problem.

A lack of transparency inevitably means a lack of accountability. And for the families affected, it also means a lack of reassurance that steps are being taken to better meet their needs – in the short or longer term.

Meanwhile, thousands of children are facing drastic disruption to their education due to a broken system with no clear end in sight.

We are calling on local authorities across the UK to do more, to make their plans transparent, so that families understand what is happening and so that councils can be held accountable over deliverables.

Sarah Woosey is a Leeds-based specialist education lawyer at Simpson Millar