Families lose SEND funding crisis case

This week we have received the bad news that three families with disabled children have lost their landmark court case. The judge found that government underfunding of SEND was not unlawful. Despite this very disappointing verdict we give huge respect and gratitude to the three families and their disabled children for their persistence and tenacity in taking on the government over  SEND cuts. The three families have rewritten the history books and done what could have easily been considered “the impossible”. The SEND campaign was enormous: it put pressure on the government, and sent a serious message about the failure of the system for disabled children and young people.

The families brought their challenge over the SEND cuts on four grounds but the High Court concluded there was “no unlawful discrimination” by the government.  The court did not feel that the SEND cuts had created differential treatment for disabled children or had placed them at a disadvantage, nor that the cuts had created any effect on the well-being or welfare of these children. It is concerning that there was plenty of evidence to demonstrate the crisis in SEND funding and also that the government was well aware of the scale of the problem. Nevertheless, the High Court is of the view that the government “did not act irrationally” around the provisions for funding and no decision was made to change the funding formula, leaving disabled pupils in the same dreadful predicament.

The case further demonstrated the weakness of our Public Sector Equality Duty. It is supposed to reinforce equality of opportunity but in this instance it did not offer any meaningful outcomes for disabled people.

This case threw up some contradictions. Recognition was given to the financial pressures on local authorities. Nevertheless, a local authority is obliged to ensure all SEND provisions specified in an EHCP are provided, regardless of availability of resources. Since the case the Education Secretary Gavin Williamson has committed to “providing an extra £700 million next year, an 11% increase, to make sure these children can access the education that is right for them”. This is still insufficient and does not address the current problems.

The outcome of this case is a huge disappointment for us all. The families and their disabled children have raised the profile of the failings of our education system for disabled children. With the support of others, the case helped to further draw attention to the injustice and inequality within the education system, and was successful in gaining the attention of the media and the wider public.

In addition to this case, this year we have seen the publication of a number of similar reports showing the devastating and shocking experiences of disabled learners. The Timpson review of school exclusion reported very disturbing findings, highlighting the deep level of inequality. It showed the profile of children who are more likely to be excluded: “children with identified SEN accounted for 46.7% of all permanent exclusions and 44.9% of fixed period exclusions” (p36). Last month the National Audit Office published their review of support for pupils with SEND. It identified the “main reason why local authorities have overspent their high-needs budgets is that more pupils are attending special schools” (p8).  Last week the Local Government & Social Care Ombudsman described the severity of the problem with the Education and Health Care Plan process and cases brought to them. Their examination revealed that they “upheld nearly 9 out of 10 of investigations last year. This is exceptional and unprecedented.” (p1)

This case and series of reports demonstrates the unfairness of an education system that allows for the separation of disabled people – a separation which ultimately goes beyond the classroom. To end this practice we must desegregate our education system with the removal of the dual education system which allows for the segregation and inequality of disabled people in education.  We saw in this case that our domestic law is inconsistent with international law, ie UNCRPD Article 24, and that therefore Article 24 could not be used to offer assistance. We need full implementation of Article 24, with no reservations and with progressive realisation and a recognition that the education of all disabled people is a human rights matter.

We continue the fight and demand for a fully inclusive education system for all disabled learners.

Written in solidarity,

Michelle Daley