What kind of government attacks the rights of children with special needs? John Harris

The illiberal pattern is familiar, as ministers plan to change the rules and block avenues of resistance for parents who disagree

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

Brexit has replaced frictionless trade with Europe with a nightmare of form-filling, surcharges and red tape. The benefits system is seemingly designed to be a bureaucratic mess of inexplicable rules and regulations, so impossible to navigate that people are thereby incentivised to stay well away from it. Getting to see a doctor or dentist now feels much the same. And there is another, rather more overlooked 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 glaring: England’s system of provision for children and young people with special educational needs.

Just under 1.5 million kids in England fall into this category. Around 470,000 of them currently have what officialspeak terms an education, health and care plan (EHCP). This legally binding document, which sets out the provision a child or young person needs, can now run up to the age of 25, and offers families at least some certainty about what they’re entitled to and who delivers it. As I know as a matter of experience – my 15-year-old son is autistic, and has an EHCP – it often takes a mind-bending level of effort to get one. But since 2010, when EHCP-like documents were known as statements of special educational needs, national figures for the number of people who have one has increased every year. Indeed, at the last count, the number of plans was up nearly 10% year-on-year, and initial requests for one had increased by nearly a quarter.

The system built around EHCPs allows parents to appeal against local authority decisions via the Send (or special educational needs and disabilities) tribunal system – very often, people contest refusals to allow them to even begin the process of acquiring a plan, or push to get their child the kind of specialist schooling often delivered by independent providers. Again, the relevant figures are on the up: over the past eight years, the number of appeals has more than doubled. Some of this is traceable to parents being able to access information and advice via online communities centred on such websites as the brilliant Special Needs Jungle, and being empowered as never before. Current statistics, moreover, suggest that nine out of 10 appeals are decided in favour of families and against councils.

Families doggedly grappling with the state and coming out on top: by rights, the very idea should surely gladden most Tory hearts. But it also means the government having to spend more, which is leading to mounting financial problems – not least sizeable special needs deficits that threaten the already fragile finances of local authorities. A plan driven from Whitehall that provides bailouts to councils in return for the hacking back of special needs spending is already under way.

The new(ish) education secretary, Nadhim Zahawi, clearly has a very familiar Tory mixture of small-state pretensions and interfering, centralising instincts that border on the authoritarian, as also evidenced by elements of the new schools bill that were suddenly binned last week – including a veto over appointments of school trustees, and even the power to set the length of academy trusts’ school days. His long-term plans for special needs provision, meanwhile, so far remain intact.

Life for people in the Send system has not been easy of late: the last half-cocked bundle of “reform” arrived only eight years ago, and the pandemic had an awful effect on special needs provision, much of which was simply suspended as kids were denied schooling. The last thing many families need is another shake-up. But in March, Zahawi’s department published a green paper full of plans to drastically change the special needs system, promising to level up its outcomes and ensure that everyone who depends on it can “thrive and be well prepared for adult life”. What it is actually aimed at doing is seizing control of a system currently centred on local councils, creating enough new obstacles to ratchet down people’s expectations, and thereby saving money.

At the heart of all this, there is also a clear sense of the government trying desperately to clean up after itself. Talking to Send insiders, you hear one observation over and over again: that demand for EHCPs and the number of appeals have shot up partly in reaction to education policy over the last 12 years. In secondary schools in particular, the kind of approach that took root while Michael Gove was in charge of the DfE – an emphasis on old-fashioned “discipline”, stringently formal learning methods and the increased use of exclusions – has pushed many special needs kids away. At the same time, real-terms cuts in education spending have reduced the numbers of such crucial staff as teaching assistants, pushing even more parents to try to push 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 of their dispute with a local authority, which often turns out to be a waste of time; and the referral of cases to supposedly independent panels that insiders fear will be appointed by councils and therefore be barely independent at all. Instead of a system that allows parents to build their case around a school or college of their choosing, an unspecified body – possibly the same “independent” panel – will present them with a “tailored list of settings”. The text includes a hair-raising change to annual reviews of an EHCP: a requirement to discuss “cessation” – in other words, taking it away.

The most worrying proposal provides the context for these changes: whereas the current system enshrines the fundamental principle that a child or young person’s needs have to dictate the provision they receive, the green paper suggests “a new national framework of banding and price tariffs for funding”, which looks like the first stirrings of the system explicitly being built around the tightening of budgets.

As ever, the usual Tory doublethink is glaring: for all its talk about empowerment, to sustain a teetering system that is crying out for an adequate level of funding and fresh approaches, the government’s solution is to grab enough power to smother basic entitlements in stifling bureaucracy and push families aside. There are about two weeks before the consultation period on Zahawi’s plans comes to a close. Those of us well used to fighting officialdom now need to make sure he has to think again.

John Harris is a Guardian columnist

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