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Personal Budgets in disarray
The Department for Education (DfE) have commissioned a review and report on how the ‘new’ law of Education, Health and Care Plans (EHCPs) is being advanced by local authorities. A series of reports have been published, the most recent being about Personal Budgets (PBs). The full report can be found here.
A number of local authorities trialled the development of EHCPs before the Children and Families Act came into force in 2014. Those local authorities were referred to as ‘pathfinder’ local authorities and their role was to trial the process of making an EHC needs assessment, an EHCP itself and to work out procedures to, for example, calculate the PBs.
PBs are relatively new within the world of special educational needs. Previously, a local authority would only really make a PB for a child for things such as transport to and from school. However, now the Children and Families Act does require that where a parent asks for a PB, and it is possible for the local authority to calculate a budget, one should be issued.
The PB has the effect of putting a monetary figure on the support required by the EHCP.
It is worth bearing in mind that the DfE undertook a similar review in November 2013 to monitor the progress of the pathfinder local authorities. At that stage the report found that very little had been learnt because processes were still being developed. Sadly, that is more or less the same outcome of this report.
The overall findings
The report highlights, within the summary of the issues identified, the following problems which local authorities are still trying to resolve:
- the limited availability and reliability of information to base a calculation of a PB on
- local authorities tend to be contracted into long-term service contracts, for example, for speech and language therapy. Those contracts are inflexible
- there is simply insufficient services, for example educational psychologists, available to cater for the demand
- combining new services into the current arrangements for PBs
- releasing of school-based funding, and
- promoting the use of PBs amongst the health workforce.
These 6 issues should not be new to the DfE. They are all issues which education commentators, and lawyers, have been highlighting as being problematic since the first announcement of PBs. It seems that now that the EHCP regime has come into force, little has been actually done to resolve the issues that were highlighted or to implement processes to enable local authorities to effectively calculate PBs.
The report also makes the following findings:
- “The integration of PBs into the wider EHC assessment and planning process had been trialled in only a small number of cases, and therefore remained largely developmental”;
- “Five of the eight areas we spoke to had offered PBs that included funding from the Dedicated Schools Grant. However, in most cases these had been offered on an ad hoc basis to meet a specific need”; and
- “[There is] Strong support for the development of PBs which drew upon funding from the high needs block (for school-age children and those young people accessing FE). All areas considered this a priority. However few areas had a work plan in place to support the introduction of this form of PB. In most cases, the main barrier to progress was a lack of existing infrastructure to support this, in particular the capacity to accurately cost individual services.”
Again, the pathfinder local authorities were tasked with resolving these issues. Before the Children and Families Act was implemented in 2014 they reported to the DfE that they were prepared for the new system.
Problems with the report
The report itself gives cause for significant concern in that it seems that the reviewing organisation, SQW, do not seem to fully understand the law concerning EHCPs.
In particular, the report states, “There is therefore no formal suite of services that must be considered for inclusion in an EHC plan, which instead should be developed to meet the needs of each child or young person and their family”.
The purpose of the PB, and the EHCP itself, is very clearly not to assess and/or support the family as a whole. It is a document to support the child or young person focussing exclusively on their special educational needs and any health or care needs that flow from those special educational needs.
It is very likely that when a child or young person is receiving the support they need, their family will realise a benefit. However, supporting the family is not a relevant consideration; the support services are solely about the child and their special educational needs.
The difficulty with the PB
The PB cannot be challenged at the Special Educational Needs and Disability Tribunal. If a parent or young person feels that the PB is ‘wrong’, then they can make a complaint to the local authority about it. It is rather unlikely, however, that the local authority will change the PB unless a clear policy breach has occurred. Given that policies seem to be somewhat lacking, in light of this report, that is doubtful.
The only effective challenge to a PB is likely to be a Judicial Review. However, that process is very complex and can be very expensive. Securing legal aid for an application for Judicial Review can also be extremely difficult.
What does this mean?
The 6 issues that are identified are fundamental. It essentially means that local authorities do not have a uniform approach, or any guidelines, to calculate a PB, how to administer the PB, how to ensure that the PB is being used appropriately or that it is sufficient for the EHCP it is designed to support. As such, any PBs currently being issued may well be erroneous or inadequate.
As there is no unified approach, or guidance to help local authorities, it would appear that they are being expected to develop their own methods for assessing and calculating PBs. The difficulty with that is two-fold:
- For parents, they may well be in a post-code lottery where some local authorities are adopting a sensible, clear and functional policy for assessing and implementing PBs, whereas others are not; and
- For local authorities and courts, there is no benchmark to work from. It will be difficult to establish what is expected of local authorities. This means that bespoke policies will be required for all local authorities. It also means that Courts will have to consider every case afresh in respect of PBs with very little guidance to assist the Courts.
It seems as though the PBs, along with the EHC needs assessment process and the transition from Statement to EHCP will have to be developed “ad-hoc” rather than, as had been hoped, a clear plan being prepared in advance.
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