Families are mounting a High Court challenge to the government’s funding of support for children with special educational needs and disabilities.
Their lawyers will argue the government is leaving councils in England unable to fulfil their legal duties to give these children the support they need.
Judges will have to decide whether Send funding decisions have been lawful and may order a government rethink.
The government said it was investing significantly into high needs budgets.
Parents of children with learning difficulties have long had to fight for the support they need with their education.
But austerity budgets and changes to the system, in 2014, have meant the huge increase in demand for support has not been matched with an associated rise in funding.
In the past financial year, eight out of 10 councils in England spent more than their allocated budgets for high needs, a BBC News investigation found.
And school leaders have complained their school budgets are being used to plug gaps in special needs funding.
Solicitor Anne-Marie Irwin, of public law specialists Irwin Mitchell, said this was the first time the government had been taken to court over its special needs funding decisions, although two local authorities have faced High Court challenges.
Specifically, the court is being asked to rule whether last autumn’s Budget was set lawfully.
Three families with children with special needs, from Birmingham, North Yorkshire and East Sussex, are fighting the case. They are all being supported by campaign network Send Action.
Their lawyers say their stories are typical of the many families around the country who are struggling to access the services their children need to support their education and learning.
Among those taking part is Nico Heugh Simone – a 15-year-old, from East Sussex, who has autism, anxiety and other related conditions, which means he requires special care to remain in mainstream school.
His mother, Lorraine, 57, said Send children deserved the same opportunities as their peers but her family had faced “numerous issues trying to ensure he can get the support he needs”.
“We feel like we have been left with no choice but to take this action,” she said.
“We are hopeful the High Court will recognise the national emergency that is being created by the lack of Send funding and order action to be taken to redress this issue.”
Another teenager, whose case will be heard by a High Court judge, is Benedict McFiggan, 14, from Scarborough, North Yorkshire, who has struggled to access support for post-traumatic stress disorder, anxiety, depression and chronic insomnia.
‘Held to account’
North Yorkshire County Council initially refused to give him an official assessment of his needs, known has an education healthcare assessment.
He has not been in mainstream school for nearly two years and now attends a pupil referral unit but for less than three hours a day.
His mother, Kirsty, 40, said so many councils were struggling and she was shocked at the lack of government action.
“We feel this issue is being caused at the top and are determined to ensure the government is held to account on sorting it out.”
Mary Riddell, mother of Dakota, nine, who has cerebral palsy and other disorders, has also struggled to get support for her daughter.
She said: “The situation as it is cannot continue or else Dakota and a huge number of other vulnerable children will ultimately lose out.”
A Department for Education official said: “The government’s ambition for children with special educational needs and disabilities is no different to any other child – we want them to enjoy school and achieve to their full potential.
“This is why we are investing significant funding into supporting those with more complex special educational needs – high needs funding totalling £6.3bn this year.
“It would be inappropriate to comment further until the judicial process has concluded.”