EHCP Direct Payments

Children and young people with EHCPs may have a personal budget and direct payments for EOTAS or Education Otherwise Than In School. This page summarises the legal background.

The authority prepares a “personal budget” for the child or young person if it identifies an amount as available to secure particular provision that is specified, or proposed to be specified, in the EHC plan, with a view to the child’s parent or the young person being involved in securing the provision.” [Source = Children and Families Act 2014 s49]

EOTAS is for situations where it is “inappropriate” for the special educational provision to be made in a school or college. [Source = Children and Families Act 2014 s61]

Section 61

(1)A local authority in England may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school or post-16 institution or a place at which relevant early years education is provided. (2)An authority may do so only if satisfied that it would be inappropriate for the provision to be made in a school or post-16 institution or at such a place. (3)Before doing so, the authority must consult the child’s parent or the young person.”

Where EOTAS is agreed to be necessary for a child with an EHCP Section I must be left BLANK. Read more about the different sections in the EHCP here.

NN v Cheshire East is case law for deciding on a case by case basis whether it is inappropriate for provision to be made in a school. Read my web page on the case here.

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. Read my EOTAS page here.

Parents who disagree with the LA’s choice of school can opt out by home educating at their own expense. Read more about elective home education with an EHCP here.

Your local council website may say nothing about personal budgets or it may only cover Short Breaks or social care direct payments.

Rules governing SEN personal budgets are set out in the SEN Personal Budget Regulations 2014. NB at the time of writing in December 2023 the Regulations on the website have not been fully updated. Regulation 4A has yet to appear on the public website although it has been part of the law since 2014 and is reproduced below.

“Provision for which a local authority is not required to prepare a personal budget”
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.”

Personal Budget Options

A Personal Budget doesn’t necessarily equate to money for the family to spend. 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. Read what the page says under the heading Personal Budgets

Meanwhile Regulation 5 says 5.—(1) A local authority may make direct payments, as appropriate, to— (a) the child’s parent; (b) the young person; or (c) a person nominated in writing by the child’s parent or the young person to receive direct payments on their behalf.” [SOURCE]

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. [Source = SEN Personal Budget Regulations, Reg 6]