There is a public consultation [LINK] on the government’s proposed changes to the special educational needs system in England which closes on May 18th 2026. In my response below I query what will happen for children who are – or who become – unable to attend school because the White Paper has nothing to say about EOTAS. This page should be read in conjunction with my SEND Reform page https://edyourself.org/send-reform-england/ which has all the links for the consultation.
Not Answering All Questions
The consultation has 39 questions which I have set out on my SEND Reform page https://edyourself.org/send-reform-england/ Because my focus is on EOTAS, I picked the questions I thought were most relevant. Not answering all the questions is always an option. Other options include just answering Q39 or sending an email to SENDreform.CONSULTATION@education.gov.uk
Q6 How can we ensure that children in the Specialist layer are best supported? A: Children who require specialist provision may not be able to attend school. It is of great concern that the White Paper and the consultation document only cover specialist provision for children who are attending a setting. There is no consideration of how specialist provision might be delivered if children are not in school. Not every child is able to attend school, hence not covering EOTAS is a serious omission. The problem is compounded by the announcement that tribunals are set to lose the power to make orders about placement (consultation document pages 105-6) Under current law, the tribunal can direct section I to remain blank if it is inappropriate for provision to be made in a school. This will disappear if the law is changed since the tribunal will only be able to order the LA to reconsider.
Q7. How do you think early years settings, schools, and college can best support the mental health and wellbeing of children and young people? A: The mental health and wellbeing of children is of paramount importance. Removing statutory rights is not helpful. Omitting children out of school from the White Paper and consultation paperwork is not helpful. Furthermore, the proposed SEND reforms do not exist in a vacuum. Pushing children to attend school when they are not able is not helpful. Saying that children’s support needs cannot be assessed while they are not attending is not helpful. Schools making safeguarding referrals when there are differences of opinion with parents which could then prevent a child from being home educated under new powers in the Children’s Wellbeing and Schools Act 2026 is not helpful. Local authorities claiming that schools are responsible for section 19 provision when children are unable to attend school is not helpful.
Q8. Do you agree that the refreshed ‘areas of development’ will support educators to understand and address barriers to learning and participation? Please explain your answer. A: I note that the refreshed areas of development are to be Executive Function; Motor and Physical; Sensory; Speech, Language and Communication; Social and Emotional replacing Cognition and Learning, Communication and Interaction, Sensory/Physical and Social Emotional and Mental Health. It will be one of many changes (also described as a “refresh” or “update”) to the SEND Code of Practice as the consultation document says that amending and updating the Code will be essential to ensuring it reflects changes across the wider SEND system. Changing the sub-headings of a Plan wouldn’t necessarily be a bad idea as long as the Plans remained statutory. However, changing Plans so they are school-based and non-statutory is a very bad idea, by which time the sub-headings are really not the biggest issue. Moreover, no thought has been given as to how this might work for children who are unable to attend school. It obviously ties in with the proposed new national inclusion standards in Q11 as page 41 states that “the refreshed areas of development will provide an organising principle for structuring the evidence within the National Inclusion Standards.” Hence it will all be decided by government-appointed experts anyway.
Q11. What should the top three priority areas be for building and sharing evidence within the National Inclusion Standards? A: An obvious priority area is widening the discussion to include children who are unable to attend school and who require education otherwise than at school as this cohort seems to have been forgotten. The consultation document talks about “a digital library of high-quality identification tools and provision across the 0-25 system covering all layers of support and making clear what good ordinarily provision should be in every setting. It will be the go-to place for educators to understand the latest evidence-based approaches to universal, whole-setting strategies, Targeted interventions, and identifying and responding to barriers to learning”. Since it says “should” rather than “must” it will be non-statutory and hence non-enforceable. (Incidentally, I am guessing that the word “available” has been accidentally omitted and that it should read “ordinarily available provision” which is a very familiar concept already) Page 51 of the White Paper informs us that an independent expert panel will “oversee the development of the National Inclusion Standards” so in reality the opportunity for input from others is minimal. The job ad here suggests that the time commitment for panel members is 1 day per month https://apply-for-public-appointment.service.gov.uk/roles/9251 with the correspondence address StandardsandPackages.PANEL@education.gov.uk
Q15. What would provide assurance for families that an Individual Support Plan (ISP) is high-quality and contains the essential information? A: What is being proposed is a non-statutory non-enforceable Plan drawn up by the child’s school. Children who in the past would have got a statutory EHCP will in future get a non-statutory ISP. Any Support Plan drawn up by the school is going to be provision-based rather than needs-based, or as the consultation document puts it, ISPs “should include evidence-based interventions from the National Inclusion Standards.” For parents who disagree with the school, there is to be no independent appeal route; parents will only be able to use the school complaints process which is apparently to be “improved” in some unspecified way. Even where a child does have an EHCP (which will be much rarer in future) “the detailed day-to-day educational provision will [still] be set out in Individual Support Plans” [White Paper page 57] It also should be borne in mind that the proposed SEND reforms do not exist in a vacuum. Under new powers in the Children’s Wellbeing and Schools Act 2026 parents in dispute with schools won’t even be allowed to home educate if the school opts to make a safeguarding referral which is taken up as a child protection issue. The White Paper and accompanying consultation have given no thought to children who are not in school or not able to attend school.
Q17: How can we best support transition for young people with SEND, so that they are well supported into post-16 provision and further education, training or employment? A: I have supported a number of families to obtain post-16 EOTAS provision with an EHCP in situations where it would be impossible for provision to be made in a school or college. Young people may have previously been on roll at school but unable to attend, or withdrawn from school to be electively home educated because of unmet needs, or had to drop out of college because of unmet needs. Post-16 EOTAS has enabled the young person to obtain special educational provision which is actually accessible to them. Local authorities have never been happy about EHCPs going up to age 25. The proposed new measures will mean huge reductions in post-16 EHCPs because the bar will be set too high for retaining or obtaining a post-16 EHCP. The new measures will also destroy post-16 EOTAS through a combination of EHCps being restricted to “the most complex needs”; EHCPs being reassessed at phase transfer; ready-made specialist provision packages rather than made to measure bespoke provision; day to day provision even at specialist layer being drawn up by schools or settings in an ISP; with the final nail in the coffin being tribunals no longer able to direct placement which will result in cash-strapped local authorities simply signposting to the nearest mainstream post-16 college in the full knowledge that they will have the last word if placement – including no placement where Section I remains blank for EOTAS – can no longer be rectified by tribunal.
Q18. How can we make sure that every area can meet the full range of the needs of children and young people through Inclusion Bases? A: It is not possible to meet the full range of needs of every pupil via a separate onsite base at each school unless “full range of needs” comes to mean something else in future which I guess is where the refreshed areas of development in Q8 come in, and the non-statutory Support Plans in Q15. Essentially the proposed new system is provision-led, not needs-led. I guess it could be made to appear successful by denying or minimising need because a need that doesn’t exist is a need that doesn’t require provision. But needs don’t just disappear because they are not recorded or acknowledged and we already know that unmet need drives persistent absence and continues to be a significant factor in the rising number of home educated children.
Q22. How can Specialist Provision Packages be designed to effectively support the main types of need we currently recognise? A: Specialist provision packages are a means of restricting access to statutory support. The majority of children will be kept below the level for an EHCP through being deemed to have insufficiently “complex needs” and hence only getting a non-statutory ISP. The consultation paperwork sets out 7 packages which it says might or might not be the final versions or the final number (“indicative and is likely to change” according to the Specialist Provision annex, which also says “There may be a need for further Packages”) In addition, the consultation also seems to be hedging its bets as to whether it will be “package” in the singular or whether it could be mix and match eg “We intend for the packages to be designed in such a way that they will be broad and comprehensive enough that any child or young person’s needs could be met by a single package, but the feasibility of this is something we are keen to test with the sector, parents, families and other professionals”. I would also question whether it would be possible for a child’s needs to grow in complexity to the point where they would be allowed to move from an ISP to an EHCP? Or would it be once an ISP always an ISP?
Q26. What factors should LAs take into account in proposing to parents and young people a list of potential settings to name on a plan? A: I completely disagree with the proposal for LAs to limit the selection by only supplying a tailored list of placements to be named on the EHCP for parents to choose from. The consultation says there will be a right to “express a preference for an alternative” but this is rendered meaningless as the law will apparently be amended so that the LA can tailor the list based on “value for money”. Added to this, in future EHCPs will only be available where a child or young person has a specialist provision package so there will be no way to secure a particular resource base if the bar is not met for a specialist provision package. The tailored list proposal is made even worse by the fact that DfE is reducing tribunal powers so that a judge can’t direct a particular school to be named, but only ask the LA to reconsider. Finally, once again this question reveals that there has been no consideration of children who are unable to attend school since the tailored list is all about “settings” with no mention of EOTAS.
Q28. What do you think is the right maximum length of time for a temporary placement in Alternative Provision (AP) schools? Please explain your rationale. A: An arbitrary time limit is not appropriate. There will not be sufficient capacity for outreach let alone rapid assessment. The consultation says “pupils who need to access AP on an ongoing basis have current or historic unmet SEN”. Alternative Provision schools will offer three levels of support: 1/ Outreach 2/ Time limited placements 3/ Longer term placements where a child has been assessed as needing one of the Specialist Provision Packages commissioned in the AP school. Time limited placements will “offer pupils a short time in an AP school or special school for social and emotional special educational needs for their needs to be assessed and addressed, which we expect will then allow them to return to their mainstream school”. Hence the options are either return to mainstream or be assessed in AP for a Specialist Provision Package to be delivered in AP. There is to be no EOTAS other than via the AP school and for those meeting the specialist provision bar there is no special school only the AP school. The consultation touches on “non-school (unregistered) Alternative Provision settings” saying “We will strengthen safeguards so that pupils remain on a school roll, and local authorities will be responsible for quality assuring non-school Alternative Provision against new national standards.” We await further detail in the Education For All Bill since these standards are currently voluntary as set out here https://edyourself.org/unregistered-ap-voluntary-standards/
Q29. We have set out our plans to regulate Independent Special Schools (ISS) sector. Do you agree that these proposed changes will lead to suitable placements being available at a fair cost? Please explain why. A: No. We need separate funding data for non-maintained & independent special schools because DfE’s financial analysis is currently unclear. The footnote to page 80 of the consultation document says “Settings which are regulated as Non-Maintained Special Schools (NMSS) fall outside the scope of these measures. NMSS are not profit making and whilst some placements are expensive, this reflects the highly specialist offers they provide for the most complex needs.” This may of course change by the time we get to legislation. Additionally as Claire Dorer of NASS has pointed out state special schools are chronically underfunded & therefore lower costs are not necessarily a benchmark of virtue. Furthermore, DfE does not want new state special schools opening [https://schoolsweek.co.uk/nightmare-before-christmas-46-free-school-projects-scrapped-and-58-special-schools-in-limbo/] or an increase in special school places hence independent special schools may be the only alternative. DfE requires local authorities to submit SEND reform plans & warns “If your plans include increases to places in special schools or specialist post-16 institutions, please include a clear rationale, showing the need that is being met, and why it cannot be met through other types of provision, such as inclusion bases” [SOURCE = https://northnorthants.moderngov.co.uk/documents/s37611/Appendix%20B.pdf via https://northnorthants.moderngov.co.uk/ieListDocuments.aspx?CId=142&MId=2299]
Q39. This consultation outlines a series of measures intended to reform the SEND system. Some of these measures have already been finalised, and this is clearly indicated within the document. With this in mind, is there anything further you would like to contribute to help inform the remaining proposals that are still under consideration? A: DfE will be using AI to analyse consultation responses and “identify themes, trends, and insights” ie picking out key words and phrases, rather than human beings having to read thousands of devastating impassioned responses from parents. While there are no questions about stripping legal rights by removing the tribunal’s ability to direct placements, the government did belatedly say it would accept consultation comments on any subject related to the proposed reforms as set out here https://www.specialneedsjungle.com/dfe-backtracks-consulting-send-legal-changes-parents-must-respond-not-in-our-name/ My response is from the perspective of children and young people unable to attend school whether that is because of neurodivergence such as – but not limited to autism/ASD/ADHD – and/or health challenges and physical disabilities and/or anxiety or ESBA [Emotionally Based School Avoidance] It is disgraceful that there is no mention of EOTAS in the White Paper or consultation document. If the majority of support plans are to be written by schools and also non-statutory, and if tribunals are unable to direct placement, and if EHCPs are to be restricted to pre-set specialist provision packages which in turn will only be allowed for “the most complex needs”, then any chance of EOTAS will be doomed. The Ombudsman can’t look at what happens in schools so judicial reviews and disability discrimination cases will soar.
General Points About Consultation
- Where the question has a text box, there is a limit of 1500 characters on the online form.
- You don’t have to type your answers directly onto the form – online character counter sites are freely available where you can paste your draft answer
- There is a facility to “save and come back later” I also email answers to myself as further backup
- The government uses AI to draw out the main messages and talking points from consultation responses; I instinctively want my key words and phrases to be “unmet need” “EOTAS” “children unable to attend school” as well as statutory vs non-statutory but I should probably make sure that things like “autism” “ASD” “ADHD” “anxiety” “ESBA” and “taking away legal rights” are also in there before I press submit