Social Care Professional Question:
A child has an EHCP and is registered at a special school, but is not currently attending as it is felt the school is not meeting need. Is it possible for parents to access the Element 3 funding to be used to pay for external support and activities for the child during school hours and if so, how do you go about this?
IPSEA Answer:
Element 3 funding describes the nature of the funding delegated to the school by the LA to secure the provision in the Plan and it won’t be as straightforward as simply moving this funding from one place to another (because the Plan specifies that the child attends a particular school and receives provision in a certain way – and what the parent wants is to change this). However, it might be possible for parents to home educate and access funding (via a personal budget with direct payments attaching) for special educational provision specified in the child’s EHC Plan. To be in this position, the parents would effectively need to establish that there is no school that can meet their child’s needs and the child, therefore, needs to be home educated (s.61 Children and Families Act 2014 gives LAs the ability to specify that education otherwise than at a school be provided via an EHC Plan, but only where education in a school is “inappropriate”). This will require up to date evidence of the child’s special educational needs, the provision to meet those needs and why that provision cannot be delivered in a school.
In this particular case, the parents would need to seek an amendment of the EHC plan, perhaps by a request for an early annual review. The LA is not duty bound to agree to this although there is an argument that if the school is not meeting need, the LA should be willing to consider it.
If the LA agreed to review the Plan it is at this stage that the parents can ask the LA it identify a personal budget (which is a notional amount identified to cover the costs of the special educational provision specified in the Plan). It might be possible for direct payments to be made in respect of this personal budget. If the LA subsequently refused to make any amendments to the Plan, the parents would have a right to appeal to a SEND Tribunal. Equally, if amendments were made but the parents were unhappy with it, they will have a right to appeal – but only in respect of Sections B, F and I.
There are reasons why an LA might not be able to identify a personal budget or disaggregate funding such that direct payments for special educational provision are possible. The refusal to identify a personal budget or make a direct payment cannot be appealed to the Tribunal and can only be challenged via the LA itself.
It will be really important for the parent to seek advice, for example from their local IASS or IPSEA, about seeking these changes and gathering the evidence to show that education in school is inappropriate under s.61.
It’s really important to remember that, although a parent can home educate their child, if what is happening is that the child is still on roll and the parent is simply keeping the child at home, there is a risk the LA could issue an attendance notice requiring the child to return to school.
