Personal budgets, direct payments and SEN (1)

We get enquiries about personal budgets time and time again. Whilst the right for parents and young people (YP) to request a personal budget has been in force now for over a year, it is apparent that very few people who want one have actually managed to obtain one.

This is the first of a two-part post. Tomorrow’s post will discuss the process of increasing/decreasing direct payments; outlining the personal budget in the Education, Health and Care Plan (EHCP) and the way forward.

What is a personal budget?

The personal budget is an estimated sum of money required to meet any of the special educational provision identified in the Education, Health and Care Plan (EHCP) where the parents/YP is involved in securing that provision. Personal budgets are optional for the child’s parent or the YP but local authorities (LAs) are under a duty to prepare a budget when requested. LAs must provide information about organisations that can help provide advice and assistance to help parents and young people made informed decisions about personal budgets. LAs should use the information on personal budgets set out in the Local Offer to introduce the idea of personal budgets to parents and young people within the person-centred approach. Personal budgets should reflect the holistic nature of an EHCP and can include funding for special educational, health and social care provision.

Once the sum is identified, parents/YP can ask the LA to consider making a direct payment in respect of any of the identified provision so that they, instead of the LA/school, can arrange the support themselves.

What is the law?

On the face of it, the law is very simple. Section 49(1) of the Children and Families Act 2014 (CFA)states that an LA must prepare a personal budget if requested to do so by the parent of a child/YP.

Regulation 3 of the SEN (Personal Budgets) Regulations 2014 states that the LA must give information on what provision a personal budget may be available for, organisations that can help parents/YP with a personal budget and conditions before direct payments will be made.

The SEND Regulations 2014 states in Schedule 2 that information about the availability of a personal budget must be included in the Local Offer.

When can parents or the YP request a personal budget?

Under Regulation 4 of the SEN (Personal Budget) Regulations, parents/YP can request a personal budget and direct payments when the draft EHCP is being prepared, reviewed or where there is a reassessment. The LA must consider the request for direct payments.

When considering the request for direct payments, the LA does not have to agree direct payments where, amongst other things, they consider that it will adversely affect their services that they provide for others or arranges for others or where direct payments would not be an efficient use of the LA’s resources (Reg 6). Note also that the head teacher/principal must agree to the direct payments before agreed by the LA and that direct payments cannot be used to pay school/college fees.

Funding for the personal budget will come from the higher needs funding which is provided to schools. The availability of a personal budget may depend and vary on school preference. For example if choosing a special school that has specialist provision that is not normally available in other mainstream placements, then the choice of a personal budget may be reduced in comparison to placement in a mainstream school that does not make that particular provision.

Personal budget for health and social care

In relation to health personal budgets, this will not be appropriate for all aspects of NHS care. However, the Code of Practice states at paragraph 9.115 that, in principle, other than excluded services, a personal health budget could be given to anyone who needs to receive health care funded by the NHS where the benefits of having the budget for healthcare outweigh any additional costs associated with having one. Since April 2014, everyone receiving NHS continuing healthcare has the right to ask for a personal health budget, including direct payments.

Regarding social care, the Care Act 2014 mandates for the first time in law, a personal budget as part of the care and support plan for people over 18 with eligible care and support needs or where the LA decides to meet needs.  The Act clarifies people’s rights to request direct payment to meet some or all of their care and support needs and covers people with and without capacity to request a direct payment.

For children and young people under 18, LAs are under a duty to offer direct payments for services which the LA may provide to children with disabilities or their families under Section 17 of the Children Act 1989.

Can the LA’s decision be challenged?

The LA must set out their reasons in writing and parents/YP can ask for that decision to be reviewed.  Note, that request for review can only be made once.

Unfortunately, there is nothing in the Regulations or the Children and Families Act that states what should happen where there is unresolved disagreement.  The Special Educational Needs and Disability Tribunal does not hear appeals about the personal budget or direct payments.

So, again, the Children and Families Act 2014 sets out good intentions but fails to deliver.

Let us know your experiences with requesting a personal budget. Have you been successful in getting direct payments for support at school?

Read our post tomorrow to find out how parents/YP or the LA can increase or decrease direct payments, how to outline the personal budget in the EHCP and what the future holds for personal budgets and direct payments.

You can read our factsheet about personal budgets and direct payments here.

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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