EHCP funding and parent's' rights from boyes turner

We have been receiving lots of questions from parents for our legal experts and here is the latest from a dad about his daughter’s EHCP.

He asks whether he is entitled to know exactly how the school are spending the money allocated to her and her education. Laxmi Patel from Boyes Turner LLP is here to answer his question.

Q.

I have a 9 year old daughter who has had an EHCP since Reception. I have never really questioned how funding through her EHCP is spent. Over the last few months I have noticed my daughter’s unhappiness at school and approached the school questioning the funding. They advised me that it’s their decision where the money is allocated and how it is spent. I fought for the EHCP and she went to school with it; she is meant to have 1:1 support but her TA is the TA for the whole class. The TA sits on a table that has four children who all have EHCPs or have SEND.

When I’ve asked for the cost of provision, they advised me I would get it at the end of the year. Is this right? This will mean that I can’t question where the money has gone before the year is over. My daughter has problems with communication and expressing herself. When I ask her if she’s okay, she tells me she can’t do the work and, because she lashes out, she gets punished. Can you advise me if the school should let me know where the funding is going before it is spent? Can I influence where it is spent?

A.

Parents often believe they can resolve a lack of provision by finding out how funding is being used. The school is permitted to spend money as it chooses, but your daughter must receive provision set out in her Plan. Don’t get side-tracked by funding issues. Let the Local Authority (LA) and school resolve this. What you need to do is check Section F (education provision) is written very clearly and cross-reference it against what is actually provided.

The starting point is, therefore, to look at the EHCP and what is actually written into Section F of the Plan. This is because provision in Section F is legally binding which means that the LA has a duty to provide educational support set out under Section F.  This is why any provision under Section F must be very specific; it is to ensure that everyone understands exactly what support must be provided.

Often, provision under Section F is written in vague terms, for example, ‘speech and language therapy as required‘. This does not tell anyone what will be delivered, who will deliver it, for how long and how often.

In your case I would check the exact wording around your daughter’s 1:1 entitlement. Does the Plan, for example, specify the number of hours of dedicated 1:1 TA support? Does it specify which lessons she will be supported by the 1:1?

If Section F is written very clearly, then you should be able to check if it is being delivered.

Funding should not be an issue. Provision in Section F must be delivered – no ifs, no buts.  If there is an issue with non-delivery, I would normally advise you to first speak to the school SENCO. If you do not get a satisfactory response, then you should let the LA know. It is ultimately the LA’s duty to ensure provision is being delivered. If funding is an issue, then this is something that the school needs to communicate to the LA and for them to resolve between them. If funding remains an issue then the LA can either provide the extra funding or fund the support themselves. I repeat, funding is not a reason for non-delivery of provision.

If, however, Section F is not written clearly, such that it is not absolutely clear what provision should be provided, then you should try and get the Plan amended. This is usually done at Annual Reviews. Consider asking for an interim review if the matter needs to be resolved more quickly.  If the LA does not amend the Plan after the Annual Review, then you should consider appealing to the SEND Tribunal. You can only appeal when the LA sends you their decision letter giving you the right of appeal. The decision letter should be sent by the LA within four weeks of the review meeting.

Some LAs need reminding that it is their duty to draft the Plan in accordance with the SEND Code of Practice (para 9.69).

  • Provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is secured through a Personal Budget.
  • Provision must be specified for each and every need specified in section B. It should be clear how the provision will support achievement of the outcomes
  • Where health or social care provision educates or trains a child or young person, it must appear in this section (see paragraph 9.73).
  • There should be clarity as to how advice and information gathered has informed the provision specified. Where the local authority has departed from that advice, they should say so and give reasons for it.
  • In some cases, flexibility will be required to meet the changing needs of the child or young person including flexibility in the use of a Personal Budget.

The plan should specify:

  • Any appropriate facilities and equipment, staffing arrangements and curriculum.
  • Any appropriate modifications to the application of the National Curriculum, where relevant.
  • Any appropriate exclusions from the application of the National Curriculum or the course being studied in a post-16 setting, in detail, and the provision which it is proposed to substitute for any such exclusions in order to maintain a balanced and broadly based curriculum.
  • Whether residential accommodation is appropriate.
  • Where there is a Personal Budget, the outcomes to which it is intended to contribute (detail of the arrangements for a Personal Budget, including any direct payment, must be included in the plan and these should be set out in section J).

There is also plenty of case law developed over the years which reiterates the point.

Failure delivering provision in the plan

If the problem is not with the Plan itself but that the LA is not delivering provision that is in the Plan, then consider judicial review. This is action against the LA for not fulfilling its duty. The first step in the process is to send a pre-action letter explaining the issues and giving the LA a chance to resolve it. If the LA fails to act on this, then the next step is to apply to court for permission to bring the judicial review. Your daughter should be able to get Legal Aid for this.

Alternative solutions are a complaint to the LA or Local Government Ombudsman – https://www.lgo.org.uk/make-a-complaint. This may take some time to resolve; you may be granted compensation, although it is usually a small sum, and the LA may also be advised to change their practices and deliver provision.

Laxmi Patel is Partner and Head of the Special Educational Needs Team at Boyes Turner LLP.