Following the publication of the schools White Paper and the launch of the consultation on special educational needs and disabilities reform, debate around SEND support has increasingly focused on “rights” - but little attention has been paid to what that term means in practice. 

Certainly, as the Independent Provider of Special Education Advice (IPSEA), we welcome the increased focus on addressing the problems that families experience in securing the right educational provision for their child or young person.

However, the current discussion risks conflating different types of entitlement, obscuring what truly protects children and young people. 

Because while a right is an entitlement, not all entitlements are equal. The key issue is not only what happens with regard to what a child or young person is entitled to, but also whether that entitlement can be enforced and what happens if it is not delivered.

The right to an individual support plan

One of the most notable SEND reform proposals is that schools and colleges will have a legal duty to produce and monitor individual support plans (ISPs) for children and young people with SEND. It may be said that these pupils will have a “right” to an ISP.

But this requires careful scrutiny. 

A duty to produce a plan does not equate to a right to the special educational provision that a child or young person requires, or, indeed, the support set out within it.

If an ISP is not produced, fails to specify provision clearly or is not delivered, what recourse is available? 

This question highlights the importance of existing legal protections: the right to an independent assessment of needs where advice is sought from specialist professionals, the right to provision that meets those needs, the right to challenge decisions, and the ability to enforce those rights. 

The current framework under the Children and Families Act 2014 is grounded in enforceable entitlements.

Education, health and care plans (EHCPs) must specify the provision required to meet a child or young person’s needs, and local authorities are under a clear legal duty to secure that provision. Where this does not happen, families have established routes of redress.

Significant change

The introduction of ISPs would represent a significant shift.

For those with the most complex needs, it would mean that special educational provision would be specified in a non-binding document determined by the setting.

For children and young people receiving special educational provision other than in school or college, it risks removing the mechanism that currently guarantees access to any of the support they require. 

For those in educational settings, questions remain about whether any “educational offer” will be enforced, and what remedies will exist where it is not delivered. 

More challenges?

If duties sit with individual settings, not all of which are public bodies, existing legal routes such as judicial review may be unavailable.

There would be no right of appeal to the tribunal in relation to the content of an ISP and no right to have provision specified and quantified to individual need in the EHCP. 

Families may be directed towards complaints processes, but this is not equivalent to enforceable legal rights. These routes are often voluntary and do not provide binding outcomes. 

The likely result is not less conflict, but families being forced towards more complex and costly routes, including discrimination claims or court action. 

The SEND reform proposals also propose broader system changes, including standardised support packages. This risks shifting the system away from personalised provision, based on individually assessed need, towards pre-determined levels of support. 

This would mark a fundamental departure from the principles underpinning the Children and Families Act 2014. The current framework does not impose a “one size fits all” model; it requires provision to be tailored to the individual.

Where this is not happening, the issue is one of implementation.

The quality of rights

To properly assess the SEND reform proposals, it is essential to distinguish between expectations and intentions, and enforceable legal rights.

Replacing enforceable rights with guidance, processes and non-binding plans would not strengthen the system.

Meaningful reform must focus not on the number of rights, but on the quality of these rights, what they guarantee, how they can be used, and what happens when they are not met. 

For children and young people with SEND, and their families, that distinction is everything.

Alex Stafford and Kate Cox are senior solicitors at the charity Independent Provider of Special Education Advice (IPSEA)