Britain has mastered the art of legislating compassion. Rhetoric, not bound by fiscal reality, has allowed those in power to make utopian promises during every election cycle. Every vulnerable child will be schooled, every homeless family sheltered, every frail pensioner cared for — and, yes, every destitute migrant housed. There’s only one problem, one easily overlooked during the carefree excitement of manifesto writing. There’s simply no money left to pay for these promises. Delivery, to any meaningful extent, is now impossible.
Last week, the Government was forced into a humiliating climb-down on its attempts to address the welfare bill. This week’s fight will be over the provision of support for children with Special Educational Needs and Disabilities (or SEND) another political hot potato — pitting underfunded councils against desperate families trapped in a broken system. Everyone involved is a victim of Britain’s paradox of good intentions, as reforms meant to safeguard the rights of vulnerable children, instead have created an open-ended legal obligation to deliver bespoke support — whether money is available or not. The result is reactive, chaotic and wildly expensive, as desperate children are left in the lurch and thoughtful reform nowhere to be seen.
Once a niche element of educational provisions, SEND has grown into a budget-devouring juggernaut. In the past financial year, total funding for young people with complex needs reached £10.5 billion. This is an increase of nearly 60% in just five years. It’s an unsustainable trend, with councils from Hampshire to London soon set to go bust.
As with many policy missteps, the roots of today’s SEND crisis can be traced back to a well-intentioned piece of legislation. The Children and Families Act 2014 was sold as a landmark shift towards a more compassionate and family-centric approach to supporting those with special educational needs. It featured Education, Health and Care Plans — known as EHCPs — which would provide support from birth up to age 25. Eligibility criteria was also broadened, so that more children could qualify for assistance. Yet, most crucially, it also reinforced the legal rights of families to receive tailored support packages. In England, one-in-20 pupils now have a formal special needs plan, and almost a fifth receive a form of SEND support. As a result, all of these children are now legally entitled to a range of specialist support services.
Yet this increase in numbers — which continues to rise — hasn’t been accompanied by the required funding: demand has outstripped budgets to such an extent that funding per EHCP has actually fallen by 35% in real terms. Inevitably, in an effort to ration scarce funds, councils have started to unlawfully or unreasonably deny support to families. There’s an irony here: the more rights families were theoretically given, the more adversarial the system actually became. At the same time, record numbers of families have started challenging councils over support packages they felt their child needed, and by 2023, local authorities lost 95% of SEND tribunal appeals in 2023. This clumsy attempt at cost-saving had the knock-on effect of forcing councils to spend an estimated half a billion pounds defending themselves in tribunal cases.
This created a farcical — and deeply harmful — cycle of rejection and defence for families forced to fight for their children’s basic rights. They’re routinely portrayed as adversaries of the system. But the routine of legal conflict has become a sad necessity for those trying to secure support, with a mechanism intended to assist the most vulnerable transformed into yet another barrier to overcome. According to a report by the LGA, in fact, these legal hurdles produce “long-term misery, stress and hardship” for both the children and their parents. Even worse, the lengthy legal proceedings have been known to cost close to £20,000 in some cases, a figure prohibitively expensive to many frantic parents.
Councils increasingly realise that a lack of money isn’t a suitable defence when challenged, and not just because they’ve spent half a billion pounds in doomed court cases over recent years. Through the 2014 Act, Parliament had created an absolute legal obligation to provide support — without any exceptions. As a result, and unlike other types of public spending, these services can’t be pruned or means-tested when funds are low. This is the crux of the SEND crisis, and it’s the same fundamental tension wreaking havoc through local public services more generally.
“Unlike other types of public spending, these services can’t be pruned or means-tested when funds are low.”
In the case of SEND, the 2014 Act had the effect of giving every qualifying child a blank cheque for support which couldn’t be refused. This provided fertile ground for opportunists keen to exploit the legal bind. For instance, the council’s statutory duty to provide free transportation to SEND children has spawned a £1.4 billion school taxi industry. Over the past five years alone, spending on home-to-school transport for disabled pupils has doubled, with many local authorities now allocating more funds to SEND transport than to road maintenance.
These eye-watering figures aren’t hard to understand. With councils having no alternative method of fulfilling its legal obligation, the price of a single taxi journey has soared. In areas where providers are scarce, firms are able to indulge in blatant price-gouging, charging significant premiums for their services. In Bristol, a single taxi journey for one student can cost the council £150. Mini-bus trips for multiple students have been known to exceed £1,700 per trip. This open-ended commitment has forced local authorities into the role of beggar, borrower, or defendant, a situation that inevitably hamstrings relations between citizens and the state.
Promises are continuously made at the government level. Yet when the time comes for delivery, they never materialise. This creates a natural distrust and resentment towards the powers-that-be. At best, this manifests itself in a disdain for local councils, with parents believing that they are solely to blame for ineffective services. At worst, this dynamic can even transform into a deep-seated belief that the social contract is irreversibly broken. Certainly, Whitehall will soon be unable to scapegoat regional government for its structural failures and fiscal irresponsibility. At that point, of course, cheery pre-election promises will be summarily dumped.
Yet if SEND is stomping social trust into the ground, it’s far from alone. Consider, for instance, the Immigration and Asylum Act 1999, another case of a legal obligation whose ramifications have been financially ruinous. The Act forced the Home Office to provide accommodation and basic support to any asylum applicants who would otherwise be homeless. That may have been manageable in previous years — but quickly became impossible after a surge of arrivals, particularly via Channel crossings. With local housing capacities exhausted, the Government has resorted to mass-booking hotels as a temporary stopgap. This has seen the Home Office’s asylum support budget ballooning from around £700 million in 2019 to £5.4 billion last year. Like with SEND, meanwhile, private contractors are able to reap vast profits from the state’s absolute legal duty to house asylum seekers.
Both these failures highlight another serious structural flaw in the way Britain works. There is a total imbalance between the central government — which is incentivised to announce sweeping legislation to impress the electorate — and the local councils forced to pick up the pieces. Unsurprisingly, this creates an environment ripe for buck-passing. Regional councils can complain about their increasing responsibilities and dwindling funds, even as Whitehall can accuse councils of mismanagement or inefficiency in delivery.
Both sides have a point, but disasters like SEND are simply the inevitable consequence of years of policy layering without sufficient consolidation. That’s ultimately a legal problem. Within the British legal system, after all, a “rights revolution” has taken place. Inspired by instruments like the Human Rights Act, it increasingly means the public is legally entitled to public services. In the case of SEND reforms, these transformed the broad human right of education into a highly specific, iron-clad, and judicially enforceable obligation to each child with special needs.
In isolation, this shifting legal philosophy may have been manageable. Unfortunately, it was accompanied by a wave of austerity and marketisation. Especially after 2010, the Government pursued fiscal belt-tightening and embraced private solutions to public problems, driven by the misguided belief that competition and decentralisation would enhance implementation efficiency. The reality was an often-unmanageable fragmentation, making oversight difficult and reinforcing severe gaps in accountability. Britain soon became a nation that expanded rights while contracting its capacity to deliver them.
When it comes to SEND, certainly, there are signs that a little investment can go a long way — clear enough in the example of Sure Start, which drastically helped cut costs later. Yet any new funding must be focused on addressing issues at their root, rather than on the usual short-termism. Legal expenses are a prime example here. Rather than fighting families through the courts, councils might instead consider what services the vulnerable actually need. In practice, this is likely through the use of in-house providers, delivered at source, and without the pointless legal hoops.
Alas, the Government’s response to these challenges seems as reactive and piecemeal as ever, even as Labour MPs are using their new-found authority to strangle reform at birth. According to Helen Hayes, chair of the Commons education committee, reassuring parents that EHCPs remain intact is “the right thing to do”. In a sense, that’s unsurprising: no politician wants to remove the rights of vulnerable children, even if it’s a financial necessity. Yet that leaves MPs stuck in a trap of their own making, unwilling to fully fund the system but also unwilling to reform the laws that make the same system unmanageable. All the while, the cost of implementation will continue to rise, more local governments will collapse — and essential support for the most vulnerable children will only get worse. But as must surely be obvious by now, you can’t legislate with compassion if you implement with cruelty.
