30/10/2026
We have heard today that the petition to protect the legal right to support for children with SEND is going to be debated in Parliament on 30 November.
This issue concerns all families, not just those of children with SEND. If children's needs are not being met properly and they are forced into the wrong setting with insufficient support, this will affect all the children in their class, if only because the class teacher needs to devote more of their time to the child who is struggling.
So, what are the legal rights at stake here?
At the moment, a child has a right to an assessment of their individual needs if the local authority is of the opinion that the child has or may have special educational needs and that it may be necessary for special educational provision to be made for them under an EHCP.
If the LA refuses to assess a child's needs, the parents can appeal to the SEND tribunal.
Following a thorough needs assessment, the LA decides whether to issue an EHCP - again, parents have a right of appeal if they refuse to do so.
An EHCP is a legal document which sets out the individual needs of the child and the provision which is required to meet those needs. When it has been drafted, the parents have the right to check the draft and ensure that the recommendations of all of the professionals involved in assessing their child have been incorporated. If they have not, the parents can appeal the content.
Parents name the school that they would like their child to attend, and unless it's a fully independent school, that school must be named in the EHCP unless one of three exceptions is met. If a school is named that the parents think is unsuitable, they can appeal to the tribunal.
EHCPs are reviewed annually, and if a parent does not agree with the changes made at annual review, they have a right to appeal to the tribunal.
All of the provision in an EHCP is legally enforceable, and there are legal routes which can be followed if an EHCP is not being followed.
Over 98% of parental appeals to the SEND tribunal are successful, at least in part, indicating that the right of appeal is a very important part of ensuring that children receive the support to which they are entitled by law.
Under the proposals, EHCPs will be reserved for the children with the most "severe and complex" needs - this has not been defined, despite several requests for the DfE to provide a definition. One might argue that children with EHCPs now have severe and complex needs - if they didn't, their needs could be met through ordinarily available provision. However, it seems that the new definition will be narrower than before.
Under what we have seen so far of the proposed new rules, if parents or a school request an EHC needs assessment, the LA will assess whether the child meets the criteria for one of a set number of "Specialist Provision Packages".
A child will only be eligible for support if they fit into one of these boxes, and the LA will select the one they think is most suitable and decide which parts of it are relevant to the child's needs.
The standardised provision set out in the package will be guaranteed by the law, but schools will be left to translate that provision into what will be provided from day to day, set out in an Individual Support Plan. The provision in an ISP will not be legally enforceable, and parents will have no legal recourse to appeal its content.
If a change of setting is needed to deliver the ISP, the LA will recommend the setting to the parents, who have the right to suggest an alternative. There will be no automatic duty on the LA to consult the suggested school, and no right of appeal for a particular school to be named if the parents think that the LA's choice is unsuitable.
There will be no annual review of the EHCP. The (not legally enforceable) ISP will be reviewed every year, but the EHCP will only be reviewed when a child is moving to a new phase of education.
To summarise, parents will lose the right to appeal a refusal to assess a child's individual needs, a refusal to issue an EHCP, the content of an EHCP and the school named. They will also lose the right to a legally enforceable annual review of their child's needs and provision - something which is often essential, as children's needs can change significantly as they grow.
In exchange, the government proposes that at levels of need below "severe and complex", the right to SEND support in schools will be strengthened. The proposals suggest that children who are on SEND support but not entitled to an EHCP will have the legal right to an ISP.
However, the content of the ISP will be determined by the school, and its existence will still depend on the school recognising and acknowledging the child's needs. As I understand it, no formal assessment of those needs will be required - the ISP will be written based on the school's assessment, with support from other professionals if they request it.
This is a very significant weakening of SEND children's legal rights, and we have as yet seen absolutely no response from the government to the consultation on these proposed changes which ended in May, and no draft legislation from which we might be able to understand the finer details of the proposals. What we have seen is many local authorities attempting to implement parts of these proposals before we have even seen proper draft legislation.
This debate is absolutely vital, and it is crucial that as many MPs as possible understand the issues, attend the debate and speak up for our children's rights.
If you haven't done so already, please consider writing to your MP and asking them to participate in the debate on 30 November and defend the rights of all children to the education that they need and deserve.