Last week the Department for Education published an Indicative Draft of a new Special Educational Needs Code of Practice, intended to support the passage of the Children and Families Bill through Parliament. A Draft Code of Practice for formal consultation is expected to be published in September.

While we applaud the government’s intention to extend legal protection to the education of young people beyond statutory school age and up to the age of 25, we are deeply concerned at much of the content, or lack of it, of this document.

The new Code is expected to replace the existing Code of Practice and the Statutory Guidance on Inclusive Schooling. In doing so, a number of existing legal protections will be lost, or diluted. This is precisely what the Department for Education had promised would not happen, when it set the ball of legal reform rolling with the publication of the Green Paper in March 2011.

The Indicative Draft Code of Practice suggests abolishing ‘school action’ and ‘school action plus’ categories and replacing them with a single category of ‘Additional SEN Support (ASS)’. It also proposes, in line with the proposed Children and Families Bill, to replace statements of special educational need with Education, Health and Care Plans. It does not, however, mention time limits for statutory assessments, and it clearly reflects a reluctance to adopt a standard format for EHC Plans and significant slackening of review procedures. Also at risk of being lost are the definition of inclusion currently in the statutory guidance on inclusive schooling, as well as the detailed guidance on the steps schools and local authorities can take, to make sure that the presence of one child in a school is not thought to get in the way of the efficient education of other children.

The government continues to declare its genuine commitment to parental choice of school. This, however, could be little more than salt in the wounds of parents who find that, in practice, the choice of mainstream is not open to them. What good does it do to have “a right to express a preference”, when there are no plans to make the choice of mainstream possible for all children?