SEND support should have human rights at the core, now and in the future

When a child who uses a wheelchair is denied appropriate transport that would enable them to access an education, human rights matter.

When a parent is concerned about their entire family’s wellbeing because their requests for respite care for their autistic teenager have been refused, human rights matter.

When a teacher challenges a school policy banning fidget toys to help a student with additional needs to stay calm and focused during lessons, human rights matter.

Getting the right support for children and young people with Special Educational Needs and Disabilities, or SEND, is an area where decisions can both help and harm people’s human rights. But the system designed to put this in place is under immense strain. Recent research from the Local Government Association – which involved families and services across England – highlights that the SEND system is broken and in desperate need of reform.

In 2024, BIHR partnered with Parent and Carer Alliance, based in Gloucestershire, to co-create a detailed guide to help parents and carers of disabled children to advocate for their families’ rights. The stories they shared with us through this work fell in line with what we already knew: families are facing an uphill battle when navigating the SEND system.

In the June 2025 Spending Review, the UK Government said it plans to publish a Schools white paper this autumn which will set its intentions for a change of approach to SEND support in England (education is a devolved matter, so any plans will be for England only). Rumours have been circulating about what the plans for reform will look like. Last month, campaign group Save Our Children’s Rights wrote a letter to the Guardian expressing concerns and calling on the government not to remove the right to an Education, Health and Care Plan (EHCP) from children attending mainstream schools. They say this would lead to an increase in applications for already overcrowded specialist schools or mean that children could be forced out of education altogether.

At BIHR, we know that the Human Rights Act (HRA) can be an important advocacy tool for children and families accessing, or trying to access, SEND support. We also know that any plans to change the SEND system should be compatible with the rights and duties set out in the HRA. Finally, we know that any attempts to weaken the protections provided by SEND law would see us turning to the HRA as an essential safety net, and we need to be ready to use it.

The HRA brings 16 fundamental rights enshrined in the European Convention of Human Rights into UK law, including ones that are vital to supporting children and families with SEND. But before turning to the rights, it’s as important that we understand the duties on public officials – both locally in the education and health systems, and nationally in Government – to ensure people’s human rights are met. These duties are the lever for action and accountability. 

Section 6 of the HRA creates a legal duty to respect, protect, and fulfil human rights for public authorities and organisations that are delivering a public function. In SEND advocacy, this can include:

• Local authorities: EHC case workers, social workers, educational psychologists, speech and language therapists, the SEN team.
• Local authority-run schools.
• Private specialist schools where places are funded by local authorities.
• Central and devolved governments, including the Department for Education and its Secretary of State.
• Courts and tribunals, including SEND First-tier Tribunals.

Section 3 of the HRA also means that other laws including the Children and Families Act 2014, the Equality Act 2010 and the Children Act 1989 – the laws which entitle children to support in relation to their special educational needs – must be applied in a way that respects human rights.

From working directly with parents, carers, and advocates, we know that key human rights which are often at risk for children and families in the SEND system include:

·        The right to be free from inhuman and degrading treatment (Article 3) – for example, where restrictive measures are used to manage the behaviour of a child with additional needs and this causes them serious harm.

·        The right to private and family life (Article 8) – for example, where a child’s social communication needs are not being supported, meaning they can’t take part in out-of-school activities and clubs.

·        The right to peaceful enjoyment of possessions (Article 1, Protocol 1) – for example, where a child’s belongings that help them to focus are taken away without justification.

·        The right to education (Article 2, Protocol 1) – for example, where transport is not provided for a child with special educational needs who is eligible for it.

·        The right to be free from discrimination (Article 14) – for example, where a young person is unfairly excluded from school without consideration for how their learning disability impacts on their behaviour.

In a guest blog for BIHR, Catriona Moore from IPSEA (a legal information charity that provides advice to parents and carers of children with SEND and delivers training on the SEND law framework) said: “The Human Rights Act underpins families’ dogged battles to make the system for supporting their child work as it should.”

The Human Rights Act can be a lifeline for families, enabling them to seek accountability and justice in their interactions with the state, not just through litigation such as SEN appeals, but in everyday conversations with public officials.

But it shouldn’t be this hard, and it certainly shouldn’t be made harder.

SEND law as it stands, and when applied correctly, can protect the human rights of children with special educational needs or disabilities and their families. It means children can enjoy their right to education, their right to wellbeing, autonomy and a family life, their right to live free from discrimination; legally protected human rights that belong to us all. If the SEND framework is weakened, children and their families’ human rights could be threatened as a result.

As with the HRA, SEND laws need support to be properly implemented, to do what they were introduced to do. Those working within the SEND system need resources and education to understand SEND and human rights law. And in turn, they need to make appropriate decisions that uphold their Section 6 duty to respect, protect and fulfil human rights the first time around. However, what we’re seeing is an increasing number of cases going to the SEND tribunals because the original decisions were not in line with the law. The government’s 2025 statistics show the number of appeals was 36% higher than compared to this time last year. The latest annual data for 2023-2024 shows that local authority decision-making was only upheld in 1.3% of decisions appealed to the tribunals. There is a clear issue about the lawfulness of the original decision-making and ensuring accountability for upholding children’s and families’ human rights.

If reform of the SEND system is where we’re heading, the HRA is an important advocacy tool in campaigning for rights-respecting law-making. As mentioned above, Section 3 of the HRA means that existing laws should be interpreted compatibly with human rights, and Section 19 of the HRA requires Government Ministers to tell Parliament whether any new laws they want to make will be compatible with human rights.

In 2023, BIHR used these parts of the law to speak up against parts of the Illegal Migration Act that would risk the rights of people in the UK. This year we’ve been working with young people, parents, and carers to use a human rights and lived experience approach to improve reform of mental health law. Using the lever of the HRA we’ve been able to shape recommendations issued by parliament’s Human Rights Committee, and even secure government changes to their proposed law. Although the focus may be different, the HRA fosters solidarity across communities and causes, including the rights of SEND children and families. The HRA offers an important tool to ensure human rights accountability in any consultations, reform proposals, and even possible new legislation in parliament. A human rights analysis frames concerns not merely around fairness – which can mean very different things to different people – but around coming together around the HRA as a universal legal protection against harm.

SEND campaigners – whether they are parents, carers, charities, or MPs – can equip themselves with knowledge and confidence in the HRA to have a voice. To advocate for rights-respecting laws and practices, and to secure better outcomes, without the need for litigation.

SEND officials also have a role to play – sharing the realities of the system and the rights they see being put at risk in their work. Importantly, they can also highlight the realities of being at the sharp end of implementing law and policy decision. They can shine a spotlight on support they need to be able to do the rights-respecting thing for children with special educational needs and disabilities in England.