with Gillian Doherty, SEND Action
Last week, the High Court found against campaign group, SEND Action in their judicial review into SEND funding against the Government. You can read about the decision here.
Today, the founder of SEND Action, Gillian Doherty, writes on SNJ of the shocking irony in how a key claim in the Government's case about council funding responsibilities is about to be choked off - by the Government itself.
Is the Government planning to choke off extra SEND funding?
by Gillian Doherty, SEND Action
Last week’s judgement at the High Court has left children and young people with SEND in no man’s land between the Government and local authorities. We were disappointed, when the judicial review against the Government over special educational needs funding was dismissed, but the judge’s decision at least clarified that it is local authorities that have the legal obligations to children with SEND.
Mr Justice Lewis stated in his judgement that, ‘A local authority is obliged to secure that the special educational provision specified in the EHCP is provided (and cannot refuse to do because of lack of resources).’ In other words, the Government has created a set of obligations that local authorities have to fulfil, regardless of how much (or little) funding the government provides for this purpose.
As the National Audit Office revealed in its recent report, the Department for Education did not fully assess the likely financial consequences of the 2014 reforms, which extended support up to age 25 - thus exacerbating the funding crisis.
‘The Department expected that the benefits and savings would significantly outweigh the costs of moving to the new system. It believed that more collaborative working between agencies and greater engagement with families would lead to cost savings. However, it did not quantify these or validate its assumptions before implementing the changes.’NAO report
Disabled children are paying the price
Disabled children and young people, inclusive schools and local authorities are still paying the price for these assumptions and the failure to cost and fund the reforms. So who fills the funding gap that this has created?
The judgment is clear about this too: ‘..if local authorities need more money to ensure that special educational provision is made, they will need to transfer money from other parts of their budget or from reserves.’
Yet the government already appears to be taking steps to close off this possibility.
DfE proposes to stop LAs back-filling SEND funding gaps
The Dedicated Schools Grant from the Government to local authorities can only be spent on the schools budget; it's ring-fenced. But if it runs out, an LA can back-fill the deficit from its other monies, such as reserves. But because so many LAs are currently overspending the schools grant by large amounts, the DfE says there is a risk this could mean service cuts elsewhere because of it. And why are so many schools' grants overspent? Because of the "rising demand" for SEND (keep reading for where this quote comes from)
This is the “robbing Peter to pay Paul” the Government’s lawyers said LAs had to do - and that the judge clearly confirmed. To do this requires the consent of the local schools forum, or if they say no, the authorisation of the Secretary of State. In practice, schools forums almost always approve the carrying forward of an overspend.
However, the Government is proposing plans to get rid of the need for the schools forum to approve (or otherwise) a request and for only the DfE to do so.
The Government’s intention is that DSG deficits should not be covered from general funds but that over time they should be recovered from DSG income. No timescale has been set for the length of this process.Consultation document
The Department for Education has already held discussions about ‘changes that we might make to the DSG [Dedicated Schools Grant] conditions of grant and the regulations in order to create certainty that local authorities will not have to pay for DSG deficits out of their general funds’ and last week announced a consultation into revised arrangements for the DSG, entitled, Revised arrangements for the Dedicated Schools Grant. Subject to the outcome of the consultation, this is their proposed wording:
- the local authority must carry forward the whole of the overspend to the schools budget in future years;
- the local authority may not fund any part of the overspend from its general resources, unless it applies for and receives permission from the Secretary of State to do so.
The main reason for including the second bullet is that some local authorities have traditionally made small contributions from their general fund to some elements of the schools budget, unconnected to considerations relating to DSG deficits, and we would not wish to prevent this in future.DfE DSG consultation document
Hold on, what about robbing Peter to pay Paul?
Yes, as mentioned, this is the same government that put forward the argument during our hearing in the High Court that local authorities must "...rob from Peter to pay Paul" (i.e. disabled children) in order to meet their legal duties.
We’re struggling to see how these consultation proposals square with the judgement passed down just a week ago, but we will certainly be watching closely, encouraging people to respond to the consultation and taking legal advice regarding its content.
"The purpose of making these changes to the conditions of grant and to the regulations is to establish clearly that local authorities will not be required to cover any DSG deficit from general funds, and therefore do not need to have free general reserves available to match the deficit."
The Government announced at the end of August 2019 that funding for schools and high needs will rise by £2.6bn for 2020-21, £4.8bn for 2021-22, and £7.1bn for 2022-23, compared to 2019-20. This includes £780m extra for high needs in 2020-21: the division of funding between schools and high needs for 2021-22 and 2022-23 has yet to be determined. This additional funding will help many local authorities to bring their DSG accounts into balance, but a number of authorities will already have substantial deficits at the end of 2019-20 and will not be able to recover them immediately.Department for Education Consultation document
So it’s clear the Government are happy for many LA education departments to be in deficit for years to come, and that means for children with SEND, austerity is definitely not over.
Managing disabled children making ‘demands'
Meanwhile, in a move they've called Managing demand-led
One of the ‘issues’ they identified was ‘a varying approach to applying thresholds for support, which was worsened by parents threatening to go to tribunal, and schools claiming they would be unable to support the child without additional resources.’ This will be addressed through holding, ‘awareness-raising sessions about the thresholds for assessments and EHCPs’. Given that families win nine out of 10 tribunals, it will be interesting to see whether these thresholds bear any relation to the legal thresholds.
Waltham Forest fighting cuts
With all this talk of budgets and savings, it’s important to remember that beyond the spreadsheets, there are disabled children and young people struggling to access the support they need. These are not ‘savings’; they are cuts to vital provision.
Families in the London Borough of Waltham Forest have just launched a crowdfunding campaign to fight local cuts to SEND funding. They say that if these cuts go ahead:
‘Some children will see their top-up funding cut by over 40%, resulting in them losing their teaching assistant and other support necessary for their education, while Special Schools in the borough will receive an annual 1.5% cut to their funding.’Waltham Forest families
The evidence is clear - let's fix it
The evidence of SEND failings submitted to the High Court in our judicial review had to be wheeled in on two large trolleys. It included information from the SEND Inquiry, National Deaf Children’s Society, Mencap, Local Government Ombudsman, National Audit Office, Institute for Public Policy Research, National Audit Office, Ofsted, National Association of Headteachers, National Education Union, Children’s Commissioner, Association of Directors of Children’s Services, Education Policy Institute, Special Educational Needs and Disability Tribunal, Local Government Association and Department of Education, to name but a few.
Though the final report from the SEND Inquiry hasn’t been published we have seen all the evidence given. Matt Keer gave clear evidence to this and to the new Public Accounts Committee inquiry about SEND funding.
Isn’t that enough evidence? Surely it’s time to declare a ceasefire, admit what went wrong and get on with putting it right before more disabled children and young people miss out on the education to which they have a legal and moral right.
Gillian Doherty, SEND Action
SNJ & SEND Action Call to Arms
- Reply to the consultation that you can find here: https://consult.education.gov.uk/funding-policy-unit/revised-arrangements-for-the-dsg/ If you're a parent, you'll have to list yourself as "Other interested party" Nice.
- Support the crowdfunding for Waltham Forest, if you can, here: https://www.crowdjustice.com/case/waltham-forest-send-crisis/
- Write to your MP to explain the implications of this - send this post as an explanation. Find your MP here: https://www.parliament.uk/mps-lords-and-offices/mps/
Watch Gillian's video interview with SNJ
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