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The EHCP does not specify funding, it only specifies provision and it is not clear that the provision is dedicated solely to that pupil
(local authority)
We are often contacted by parents because their child or young person’s Education, Health and Care Plan (EHCP) does not specify funding, or because it specifies a funding band. The parents are worried that the EHCP may not be properly funded and the school will be unable to provide the support their child needs. Sometimes they have been told the funding and/or provision in the EHCP is not solely for their child.
What’s the legal position?
Local authority duty to fund EHCP provision
There is no requirement to specify funding in an EHCP. However, under s.42 Children and Families Act 2014 local authorities (LAs) have a legal duty to arrange the educational provision specified in section F of an EHCP. This includes ensuring adequate funding.
The EHCP must set out all of the special educational needs of the pupil, and make provision for each of those needs. Schools may be expected to fund up to a notional £6,000 towards the pupil’s support from their SEN budget, with LAs providing top up funding. (See our article here. The notional £6,000 was upheld by the Upper Tribunal in CB v Birmingham City Council [2018] UKUT 13 (AAC); DfE has raised concerns this does not reflect the actual funding that may be available to a particular school).
To simplify the process LAs often utilise a needs matrix. This sets out descriptors for the four categories of SEN (cognitive and learning, language and communication, social emotional and mental health, sensory and physical).
For example
| Sensory and/or Physical (x4) | |||
|---|---|---|---|
| Physical disability and/or medical conditions | Hearing | Vision | |
| 1 | Mild disability e.g. absent digits, mild diplegia, Pupil shows poor fine and/or gross coordination skills. Pupil is independently mobile without the use of aids etc. but requires assistance for some school routines/self-help skills. Pupil may need support with administration of regular medication in school. | Mild loss of hearing (e.g. conductive or Unilateral loss). Can hear clear voice wthout aids/amplification | Mild impairment. 6/12-6/18 (logMAR 0.3 - 0.48) Reads N12 print. Mild bilateral field loss or adapted to monocular vision. Independent mobility Wears patch 1-2 hours daily. |
| 2 | Moderate disability Pupil is mobile with the use of walking aids. May require level access and/or supervision or assistance on stairs, etc. Pupil needs daily specialist programme for co-ordination skills. Pupil needs daily adult support with health care regimes | Moderate hearing loss; uses post aural aids, nonverbal cues for communication | Moderate impairment, needs some work modified. 6/18-6/36 (logMAR 0.5-0.78) Moderate bi-lateral field Loss Independent mobility in familiar areas. Moderate level of |
Each descriptor is allocated a score. The pupil’s cumulative scores for each category are added together to generate an assessment score, which in turn corresponds to a funding band (example below).
| Tariff Banding | Assessment points | Tariff amount |
|---|---|---|
| A | 0-31 | £2,072 |
| B | 32-45 | £7,479 |
| C | 46-58 | £9,821 |
| D | 59-70 | £13,579 |
LAs determine their own funding bands, and many view banding as a means to ensure fair distribution of resources. However, the s.42 duty prevails - regardless of banding, the LA must fund the provision specified in the EHCP. The same applies if the school is not able to contribute the notional £6,000. Law takes priority over policy in all circumstances, and any LA policy criteria that conflict with legal requirements will be void.
EHCP provision is for the named pupil
An EHCP is written to meet the named pupil’s individual needs, and the provision specified is dedicated to that pupil. The EHCP may include shared elements such as small group work but any equipment, staff or other facilities required to enable that provision must be specified and, again, are dedicated to the named pupil.
In many cases the LA will delegate the task of arranging EHCP provision to the school. However, the legal duty always remains with the LA. If a specified educational provision is not in place, parents can enforce the EHCP via judicial review.
Issues
Problems can arise if provision is missing from the EHCP, or if the EHCP is poorly written.
Parents who are unhappy with their child’s EHCP may wish to have it professionally reviewed. This can be done at any time but is most beneficial before annual review, as parents then have the opportunity to request amendments to the EHCP.
If you would like to discuss arranging a health check of your child’s EHCP, please contact us on 0118 467 6547 or email senexpertsolicitors@boyesturner.com.
I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved.
James' mother, Boyes Turner client
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