Personal budgets, direct payments and SEN (2)

This is the second of a two-part post. Yesterday’s post explained what a personal budget is, how parents/young person (YP) can request one, personal budgets for Health and Social Care, challenging the local authority’s (LA’s) decision and the law. Read part 1 of our post here.

Can the personal budget/direct payments be increased/decreased?

Under Regulation 10 of the SEN (Personal Budgets) Regulations 2014 the direct payment agreed must be sufficient to secure the agreed provision. The amount of payment can be increased or reduced provided that the LA considers that the sum is still sufficient to secure the provision.

The LA must review its direct payments in the first three months and also at annual reviews and reassessments.  The recipient (parent/YP) can also ask the LA to review the sum. Under Regulation 11(4) the LA must consider whether to carry out a review but the Regulations are silent as to what happens if the LA decides not to carry out a review.

Under Regulation 12 the LA can decide to reduce the direct payments. If doing so, they must give reasonable notice and reasons. Parents/YP can ask the LA to reconsider their decision once. LAs can reduce the amount of direct payments provided they give reasonable notice, even if parents/YP ask the LA to reconsider their decision.

Under Regulation 14, the LA can stop direct payments if at any point to continue to do so would have an adverse impact on their other services that the LA arranges or if it is no longer compatible with the LA’s efficient use of resources. However the LA must first give notice in writing with their reasons and must reconsider if asked to do so. A request for reconsideration can only be made once. Once the LA has reconsidered it must respond to parents or the YP in writing.

Where will the personal budget go in the Education, Health and Care Plan?

The personal budget will be outlined under Section J of the Education, Health and Care Plan (EHCP). The special educational needs and outcomes that are to be met by any direct payment must be specified.

LA should set out its personal budget when drafting the EHCP. The LA should be clear that any sum discussed at this stage is indicative and is to support the planning process including the development of the draft EHCP. The final sum must be sufficient to secure the agreed provisions specified in the plan and must be set out as part of that provision. LAs must consider each request for a personal budget on its individual merits and prepare a personal budget in each case unless the sum is part of a larger amount and disaggregation of the funds for the personal budget would have an adverse impact on services provided or arranged by the LA for other EHCP holders or where it would not be an efficient use of the LA’s resources. If this happens, the LA should inform the child’s parent/YP of the reasons that it is unable to identify a sum of money and work with them to ensure that services are personalised by other needs.

The way forward

It seems, therefore, that despite the headlines about parents/YP’s right to request personal budget/direct payments, LAs do not have to agree and there is little that can be done about it.

I suggest that LAs first need to get to grips with what can be offered under direct payments. The “0 to 25 Special Educational Needs and Disability System – departmental advice for Local Authorities and their partners”, September 2015, sets out very clearly that the Local Offer must include information on the option for personal budgets and local policy on personal budgets.  The Local Offer must include types of services that lend themselves to personal budgets and the mechanisms of control for funding available to parents and young people.  It must set out their eligibility criteria and the decision-making processes. To do this all funding partners (Education, Health and Social Care) need to identify and agree the funding streams and services for inclusion. As part of ongoing discussions all three should identify how the new joint commissioning strategies will support greater choice and control year on year as funding streams are freed from existing contractual arrangements.

The DfE guidance also states that, integral to this process is ensuring that children, young people and families are involved in the decision-making processes.  If there is demand from parents and young people for funds that cannot at present be disaggregated, this should inform joint commissioning arrangements for greater choice and control.

My view is that changes will be gradual. We have to see Health and Social Care engaging with Education in a far better way than we are currently witnessing.  But provided that parents and young people and families feedback to Local Authorities via the Local Offer there should be a shift towards working to more freedom of choice in future years.  Much of this will depend on individual LA circumstances and commissioning arrangements. Back to postcode lottery then…

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

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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