My LA has just declared bankruptcy - what does that mean for my child's SEN support or EHCP?

My LA has just declared bankruptcy - what does that mean for my childs SEN support or EHCP?

Slough Borough Council has declared bankruptcy, joining Northamptonshire County Council and Croydon Council in issuing notice that it can now provide only essential council services. In February 2021 the Financial Times reported twelve authorities were in talks with the Ministry of Housing, Communities and Local Government around potential bankruptcy, but this could be ‘the tip of the iceberg’. Eight councils – including Slough - were granted ‘exceptional support’ from the government.

What does council bankruptcy mean for children and young people with SEN?

The legal framework

SEN support for pupils without an Education, Health and Care Plan (EHCP) is the responsibility of their school or college. Section 66 of the Children and Families Act 2014 places a proactive duty on the school/college to ensure the needs of pupils with SEN are met, and the SEND Code of Practice 2015 sets out the process by which this should be achieved. Where a pupil may have SEN, the school/college is expected to carefully assess their needs, draw up a written plan to support them and ensure the agreed support is in place, and review it regularly (ideally, once a term). The pupil and their parents should be involved in this process, which should also set targets for the pupil so their progress can be measured. This SEN support is usually funded from within the school’s budget, but the local authority (LA) may agree additional funding for the named pupil if requested. However, this additional funding is not guaranteed and can be withdrawn. Many LAs report an annual overspend for education, and an LA in financial difficulties will look to reduce costs wherever possible.

If your child has an EHCP, this is a legally binding document and section 42 of the Children & Families Act requires the LA to secure the provision. This is an absolute duty and the provision can only be withdrawn if the LA amends the EHCP in conjunction with an EHCP review.

What should I do now?

Consider requesting EHC needs assessment. SEN support beyond mainstream resources, including EHCPs, is funded by the LA’s high needs funding block. EHCPs take precedence - so if high needs expenditure is reduced, pupils without an EHCP could lose support that is funded by the LA. Arguably, if high needs funding is allocated to a named pupil then this is evidence s/he has needs beyond typical mainstream resources, and an EHCP may be appropriate. The first step towards an EHCP is requesting EHC needs assessment from the LA: this can come from the parents or the school/college.

If your child has an EHCP, take advice before the EHCP review. With an EHCP the provision in Section F will continue as before. However, the LA may look to reduce or even remove elements of provision at the next EHCP review. You may wish to seek legal advice in good time before the review meeting.
It is important that the EHCP is properly written so you can enforce it if necessary: a SEN solicitor will be able to check the Plan and advise on any weaknesses or concerns.

We are specialists in supporting children and young people with SEN. If you would like to discuss your child’s SEN support or EHCP, you can contact our team on 0118 952 7219.

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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