Legal challenge raises concerns over SEND consultation

In a landmark case, an eight-year-old girl named Jessica Hayhurst is seeking a judicial review of the UK Government’s consultation regarding proposed reforms to the special educational needs system. Jessica, who is severely autistic, non-verbal, and has complex special educational needs and disabilities, argues that the consultation process is unlawful and unfair. Acting through her mother Melissa Hayhurst, who serves as her litigation friend, Jessica contends that the consultation fails to provide sufficient information about the proposals and does not include key questions that should be addressed.

The consultation, published by the Secretary of State for Education in February, outlines extensive reforms aimed at overhauling the existing system of provision for children with special educational needs and disabilities (SEND). These changes, detailed in the White Paper titled "Every Child Achieving and Thriving," could significantly modify the legal rights and protections currently in place for disabled children and their families.

Jessica’s legal representatives from the firm Rook Irwin Sweeney have filed for a judicial review, claiming multiple serious shortcomings in the consultation. Key points include the absence of clarity regarding how these proposals would reduce existing rights and entitlements, a failure to seek consultees’ views on fundamental changes, and a lack of meaningful questions concerning legal rights reductions. The claim also highlights a troubling oversight regarding the consideration of vulnerable children who are educated outside of traditional school settings.

Melissa Hayhurst expressed her family's concern, stating "Children like Jessica, who is severely autistic and non-verbal, cannot advocate for themselves and rely entirely on the adults, systems and legal protections around them." She further elaborated on the distress within the SEND community, noting “there is enormous distress and disappointment that changes with such profound consequences appear to be progressing without families being clearly told what is truly being proposed and what rights and safeguards could potentially be lost.”

Lawyer Polly Sweeney, representing Jessica, emphasised the risks associated with the proposed reforms, saying: “The Government’s SEND reforms, if adopted, will dilute existing legal rights in many material ways.” She underscored the consultation’s misleading nature and the failure to seek essential feedback from affected families.

Jessica and her mother hope to have the consultation quashed by the High Court, which would prevent the Government from proceeding under the current process. Supported by several organisations and families of children with SEND, this challenge underscores the urgent need for transparency and fairness within the consultation process, as many families navigate an already complex system.