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What kind of government is this that violates the rights of children with special needs? | John Harris

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A deep, sometimes toxic contradiction has long been at the heart of Conservative politics, and thanks to Boris Johnson’s government, it is now more visible than ever.

Brexit has replaced seamless trade with Europe with a nightmare of form-filling, extra fees and red tape. The benefits system is seemingly set up as a bureaucratic mess with inexplicable rules and regulations that are so impossible to navigate that people are encouraged to stay away from it. Going to the doctor or dentist now feels the same way. And there is another, more forgotten example of how the promise of choice and a responsive state is all too often nullified by its exact opposite, which is about to become even more stark: the English system of providing children and young people with special needs education.

Just under 1.5 million children in England fall under this category. Around 470,000 of these there is currently what is officially called the Education, Health and Care Plan (EHCP). This legally binding document, which sets out the means a child or young person needs, can now run until the age of 25 and offers families at least some certainty about what they are entitled to and who is providing it. As I know from experience – my 15 year old son is autistic and has an EHCP – it often takes a staggering level of effort to get him. But since 2010, when EHCP-like documents were known as Statements of Special Educational Needs, national figures for the number of people having such an education have increased every year. Indeed, at the latest count, the number of plans is up nearly 10% year-on-year, and initial requests for one are up nearly a quarter.

The system built around the EHCP allows parents to appeal local authority decisions through the Send court system (or the Special Educational Needs and Disability system) – very often people challenge refusals to let them even start the process of buying a plan, or insist that their child gets specialized training, often provided by independent providers. Again, the relevant numbers are growing: the number of appeals has increased over the past eight years more than twice. Part of this is because parents can access information and advice through online communities centered on websites such as the brilliant Special Needs Jungle, and get empowered like never before. Moreover, current statistics show that nine out of 10 appeals are decided in favor of families and against councils.

Families fighting hard against the state and coming out on top: rightfully so, the very idea should surely please most Tory hearts. But it also means the government has to spend more, leading to mounting financial problems – not least a large special needs deficit that threatens the already fragile finances of local authorities. A plan kicked out of Whitehall which provides aid to councils in exchange for hacking special needs spending, is already underway.

The new (ish) education minister, Nadhim Zahavi, clearly has a very familiar Tory mix of small-state pretensions and interventionism, centralizing instincts bordering on authoritarian, as evidenced by elements of the new schools bill, which was suddenly killed last week – including the right to veto the appointment of school trustees and even the right to set the length of school days for academic trusts. His long-term plans for special needs, meanwhile, remain unchanged.

Life for people in the Send system it hasn’t been easy lately: the last package of “reforms” only came eight years ago, and the pandemic has had a terrible impact on special needs provision, much of which has simply been suspended as children are denied education. The last thing many families need is another reshuffle. But in March, the Zahavi department published a green paper is full of plans to overhaul the special needs system, promising to improve outcomes and ensure that everyone who depends on it can “thrive and be well prepared for adulthood”. It is effectively aimed at seizing control of a system that is now centered on local councils, creating enough new hurdles to lower people’s expectations and therefore save money.

Underlying all of this is also a distinct sense that the government is desperately trying to clean up after itself. When you talk to Send insiders, you hear one observation over and over again: EHCP demand and referrals have increased partly in response to education policy over the past 12 years. In secondary schools in particular, the approach taken when Michael Gove was in charge of the DfE is an emphasis on old-fashioned ‘discipline’, strictly formal teaching methods and greater use of exceptions – pushed away many children with special needs. simultaneously, reductions in real terms spending on education has reduced the number of essential staff such as teaching assistants, prompting even more parents to strive for something better.

The Green Paper proposes to put two new hurdles in the way of families who want to take their case to the Send tribunal: compulsory mediation in their dispute with the local authority, which often turns out to be a waste of time; and referring cases to supposedly independent commissions, which insiders fear will be appointed by councils and therefore not independent at all. Instead of a system that allows parents to build their case around the school or college of their choice, an unestablished body – perhaps the same “independent” group – will present them with a “customised preference list”. The text includes a startling change to annual EHCP reviews: a requirement to discuss ‘termination’ – in other words, its cancellation.

The most worrying proposal provides the context for these changes: while the current system enshrines the fundamental principle that a child or young person’s needs should determine the care they receive, the green paper proposes “a new national framework for the range and pricing of funding. ,” which looks like the first stirrings of a system clearly built around tightening budgets.

As always, the usual Tory ambivalence is evident: for all its talk of empowerment to maintain a balancing system that requires adequate funding and new approaches, the government’s solution is to seize enough power to suffocate basic rights in stifling red tape and push families aside. There are about two weeks left until the start consultation period Zahawi’s plans are coming to an end. Those of us who are well used to fighting officials now need to be convinced that he needs to think again.

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