There has been a general lack of planning across specialist schools, which has resulted in the system defaulting to the independent sector because sufficient places are not available in state-maintained settings. The independent sector is very expensive for local authorities.

Q21. What needs to be in place so that children and young people with low incidence, highly complex needs can always access the right specialist placement?

The starting point must be an honest assessment of whether there are enough specialist placements available in the right areas. If the ambition is to educate more pupils in mainstream settings, we must ensure that capacity is genuinely built within the mainstream sector before that expectation is embedded in the system.

In our experience, the delays experienced by children with complex needs while awaiting an appropriate placement are substantial. Until the question of available capacity is resolved, changes to the assessment criteria and placement routes risk creating false expectations for families, while doing little to improve outcomes for children on the ground.

The broader issue is that schools are chronically underfunded, which impacts their ability to deliver expected provision. In our School Leaders Survey, 80% of respondents were dissatisfied with school funding, rising to 86% for SEND funding. While the government has announced a £1.6bn Inclusive Mainstream Fund over three years, there is little enthusiasm this will be anywhere near sufficient to plug the funding gap and could see the situation worsen, not improve.

Q24. We propose creating a more direct route to Specialist Provision Packages and EHCP assessments for children under 5 with complex needs. How can we make sure this works in practice?

We support the principle of earlier identification and intervention. However, we have significant concerns about the practical operation of this proposal that must be addressed if it is to deliver on its aims.

Need must drive placement

The overriding principle must be that need drives the setting suggested to parents – not capacity, resource constraints, or default pathways. Any framework must be built around the child's individual circumstances rather than what happens to be available.

Capacity must precede the change in tests

If settings are already full, the question of how this route will operate in practice becomes acute. The issue of insufficient capacity in specialist provisions must be resolved first. The consultation itself references value for money and effectiveness as express policy objectives, but we can’t achieve either without first having sufficient capacity available. 

We need to have capacity in place before changing the tests.

The early years sector is not uniform

The current system already involves considerable delays in securing an EHCP for children with reasonably complex needs because local authorities want to gather evidence before issuing one. 

When considering children below school age, there is the additional complication that understanding within nursery provision will vary considerably. This is a mixed sector, encompassing childminders through to school-based and independent nurseries. The setting is also less formal and play-oriented, which makes identification of need more challenging.

Part of the challenge is that if we are trying to create an earlier route to an EHCP, there is a difficult process to navigate for nurseries and parents, which is precisely why families tend to wait until a child reaches school age.

Guidance and obligations on early years providers

There is an important role here for clear guidance to early years providers on how to identify children with more complex needs and how to support them onto a route to obtaining a Specialist Provision Package. Alongside guidance, there should be some obligation on providers to flag concerns to parents and to initiate an assessment from a younger age.

Equity of access

The SEND system has historically been weighted in favour of parents who have the means and support to navigate it. Those who do not have the resources, or who do not speak English as a first language, are often unable to challenge local authority decisions and risk falling by the wayside. Schools often feel powerless to help more vulnerable families given their lack of standing in many of the decisions being taken and the lack of any enforcement powers.

Early years providers therefore require guidance on how best to work with parents to proactively address these issues at the earliest opportunities and identify support routes, rather than leaving the burden on parents to seek help.

Q28. What do you think is the right maximum length of time for a temporary placement in Alternative Provision (AP) schools?

An arbitrary maximum time limit should not be set. The system must retain flexibility, with any duration determined by reference to the individual child's needs.

Provided there is a built-in process that addresses those needs and analyses outcomes through a structured review process (and provided some form of progression is identified and recorded) the system should remain flexible. 

A fixed cap risks either artificially shortening a placement that is working well for a particular child or creating perverse incentives to discharge pupils from Alternative Provision before they are ready to return to mainstream settings.

We note that the Children's Wellbeing and Schools Act already provides that academies will be required to follow the same review process as maintained schools. This is a welcome development, and the review framework that emerges from that provision should form the backbone of any AP placement monitoring system, rather than a blunt time limit.

Q29. Do you agree that the proposed changes to regulate the Independent Special Schools sector will lead to suitable placements being available at a fair cost?

We do not agree that the proposals as currently formulated will achieve this aim, and we urge significant caution.

A cap on fees could result in parents having fewer options rather than more. If independent special schools can’t operate viably within a capped fee structure, the likely consequence is market exit – reducing, rather than increasing, the availability of specialist placements at a time when demand already outstrips supply.

If the government is already proposing that local authorities make placement decisions based on effectiveness and value for money, a separate fee cap is unnecessary: an alternative setting that provides better value will naturally be preferred under any rational commissioning framework.

More fundamentally, the reason children are placed in independent special schools is that there is not enough capacity in state special schools. Fee caps do not address this systemic problem.

The independent special schools sector is also far from homogenous. Some are private equity-backed, but many are operated by charities and not-for-profit organisations that provide vital provision where the state cannot. Regulation must be carefully calibrated to avoid unintended consequences that harm the very providers delivering the most for children with the greatest needs.

How we can help

If you are navigating SEND placements, EHCP assessments or disputes with a local authority, our specialist team can help. Contact our team to learn how our special educational needs and disability matters service can support you.