Personal Budgets and Direct Payments for Special Educational Provision
Children and young people with EHCPs may have a personal budget and direct payments for EOTAS or Education Otherwise Than In School but the conditions are very restrictive. Section 61 of the Children and Families Act 2014 dictates that it must be "inappropriate" for the special educational provision to be made in a school. This is explained more here Parents who disagree with the LA's choice of school can opt out by home educating at their own expense. If they want funding for EOTAS they may be required to prove that it is inappropriate for provision to be made in a school for example by pointing to past issues with school and/or supplying professional reports setting out the challenges, using the checklist in case law above as guidance. It is not about demonstrating that EOTAS or a personal budget costs less than school, since in this context EOTAS is not a comparable placement.
Where it is agreed that parents will receive money in the form of direct payments from the council to pay for the special educational provision set out in section F of the EHCP this will be provision which meets the needs set out in sections B, C, and D, which enables the child or young person to achieve the outcomes set out in section E. (There may be OTHER direct payments outside section F but these will be arranged SEPARATELY with health or social care.) NB Section 19 of the Education Act 1996 also requires EOTAS to be arranged where the child is unable to attend school but this is not linked to the SEND law on personal budgets and direct payments.
Direct Payments Legislation
Here are the first SEN Personal Budgets Regulations 2014 [NB ON THE LEGISLATION.GOV.UK WEBSITE THE VERSION IS ORIGINAL-AS-MADE AND DOES NOT CURRENTLY INCLUDE REGULATION 4A BELOW)
"Provision for which a local authority is not required to prepare a personal budget" was ADDED AT LAST MINUTE BY extra regulations namely The Special Educational Needs (Miscellaneous Amendments) Regulations 2014 No. 2096
4A. (1) For the purposes of section 49(2), the particular provision to be secured by an amount identified in a personal budget does not include provision that is specified, or proposed to be specified, in an EHC plan (the "specified provision")—
(a)which the local authority secures, or proposes to secure, under arrangements within the meaning of paragraph (2); and
(b)where the conditions in paragraph (3) apply.
(2) "Arrangements" for the purposes of this regulation means any arrangements between the local authority and a third party under which the local authority pays an aggregate sum for special educational provision which includes the specified provision.
(3) The conditions are that—
(a)the aggregate sum paid by the local authority under the arrangements includes a notional amount for the specified provision; and
(b)the notional amount cannot be disaggregated from the aggregate sum because the disaggregation—
(i)would have an adverse impact on other services provided or arranged by the local authority for children or young people with an EHC plan; or
(ii)would not be an efficient use of the local authority's resources."
A Personal Budget in relation to an Education Health and Care Plan is an amount of money which is available to secure the provision specified in the EHCP. Read about the new SEN system here If the local authority "agrees to" a Personal Budget or "offers" a Personal Budget, this does NOT mean that money will be made available to the family. Some people may think that a "Personal Budget" equals money for the family to spend, but this is not true. The only time money is released to the family is via what is called "Direct Payments." Sometimes the Personal Budget is "notional". This is where local authority will "hold" the Personal Budget and will simply tell the family the amount of money involved. At other times, the Personal Budget might be what is called "third party" where the local authority commissions a service from a provider, and this third party "holds" the Personal Budget.
The ONLY way for a Personal Budget to translate into Direct Payments for the family to spend on EHCP provision is where the local authority is "satisfied" firstly that the DPs will not have an adverse impact on other services, AND secondly that using DPs is an efficient use of the LA's resources.
One Parent's Story"My home educated child has special educational needs (SEN). She has an Education Health and Care Plan (EHCP), a Personal Budget (PB) and Direct Payments (DPs). We now receive £3,500 per term, for 12 hours of support at home by tutors of our choice, plus 8 hours per week of pre-approved extracurricular funding in areas of my child's special interest. All tutors and people involved with the child must have DBS checks. All spending has to be recorded with invoices for the annual review. Since having this support in place we have seen a significant improvement in my child's mental state and academic progress. I am sharing my story to show Local Authorities (LAs) how a Personal Budget for home education can help children, when school is not the best option for the child.
In September 2014 my then 8 year old was deregistered from school. There was already had a diagnosis of autism and a history of school refusal and anxiety, but my child didn't have a statement of special needs. I applied for an EHCP after we started home educating. The new SEN system had just become law. At the outset, my intention was that my child would have the option of a specialist school or flexi school but I was aware of the reality that school might not be possible and we might need to carry on with home education. Right from the start in my discussions with the local authority (LA) I wanted reassurance that nothing would be enforced on us, and if we preferred to carry on with home education we could. The LA was supportive of this. The LA agreed to carry out EHCP assessments of my child and the reports commissioned by the LA stated that it was unlikely my child could successfully attend any local school, mainstream or special. LA reports also stated that it was highly unlikely that traditional tutors sent in to the home would work.
The Personal Budget has had a huge positive impact. My child is meeting the goals set out in the ECHP, because of the tutors and activities that have been put in place. This is something that many children could benefit from. It would help if there were a clear procedure for applying for a PB, and specific criteria to me approved. For example a process more like the DLA (Disability Living Allowance) application could make things more straightforward and fair. Most of the families who I know that are home educating children with special educational needs (SEN) have no support or funding. There is a common feeling among these families that asking for funding is like climbing Mount Everest, long and arduous with many associated risks along the way. There is also a fear that asking for a Personal Budget is opening themselves up to being judged about their choices or even their abilities to parent the child, and their right to choose what they feel is best for their child could be taken away from them.
Why Home Educators DON'T Get Direct Payments for SEN
- The Government amended the regulations to give local authorities more reasons to refuse PBs and DPs
- Hardly ANYONE gets SEN DPs outside school transport arrangements
- A home educated child likely doesn't have an Education Health and Care Plan in the first place
- Where a home educated child DOES have an EHCP, the local authority says that the child's needs COULD be met in school and that parents have DECIDED to educate at home ("elective home education") as per 10.32 SEND Code ("parents have made their own arrangements under section 7 of the Education Act 1996")
More about the 2015 SEND Code of Practice in relation to home education here