Special Educational Needs –EHC Plans and Personal Budgets

Special Educational Needs –EHC Plans and Personal Budgets

The new regime for special educational needs from 1 September 2014 has introduced personal budgets in the wake of relatively successful pilot schemes run by several local authorities.

The statutory framework of how these personal budgets will work is set out in The Special Educational Needs (Personal Budgets) Regulations 2014.

Basically the local authority has the power to make direct payments to parents or a young person to enable them to pay for specific provision or services in the Education Health and Care (EHC) plan. Direct payments cannot be used to fund a place at school or a post-16 institution.

A personal budget allowing for direct payments will not be allocated automatically in every case because the regulations impose certain restrictions. However, every parent or young person has the right to receive information, support and advice about personal budgets from the local authority when it is preparing an ECH plan or when an ECH plan is in place (Regulation 3). The onus then shifts to the parents or young person who has the right to request a personal budget (including direct payments) when a draft ECH plan is being prepared, or whenever an ECH plan is being reviewed or re-assessed. If a personal budget with direct payments is requested the local authority must consider the request. (Regulation 4.) If you don’t ask you won’t get. The local authority can only make direct payments if a request has been made. The local authority can refuse to grant direct payments. It must give reasons for this, notify the parents or young person of their right to a review, and if requested hold a review taking into account any representations. (Regulation 7.)

Regulation 6 sets out the criteria that have to be met in order to receive a direct payment. The local authority must be satisfied that:

(a)the recipient will use them to secure the agreed provision in an appropriate way;
(b)where the recipient is the child’s parent or a nominee, that person will act in the best interests of the child or the young person when securing the proposed agreed provision;
(c)the direct payments will not have an adverse impact on other services which the local authority provides or arranges for children and young people with an EHC plan which the authority maintains; and
(d)securing the proposed agreed provision by direct payments is an efficient use of the authority’s resources.

In addition, a direct payment can only be used for goods/ services in a school or college if the head teacher/ principal consents in writing. ( A similar provision exists in relation to early years setting.) (Regulation 9.)

The budget awarded must be sufficient to secure the provision in the EHC plan. The regulations also deal with the mechanics of payment, reviews, repayment and recovery, and stopping payments.

When a personal budget is agreed there are 4 possible ways it can be paid: 1) direct payment; 2) a third party holding the payment; 3) the local authority holding it as “a notional personal budget”; 4) a combination of some or all of the above.

The SEN Pathfinder personal budget information and resource pack gives some further information. Here is their website address: www.sendpathfinder.co.uk

Also consult chapter 9 of the Special Educational Needs and Disability Code of Practice: 0-25 (July2014)

For legal advice on any aspect of Special Educational Needs law or personal budgets, contact Education Law Barristers without obligation and in strict confidence on: 0845 652 0451