Can My LA Refuse To Issue A Personal Budget?

Parent asks:

I was recently refused a Personal Budget (for swimming lessons for my 16 yr old) they are not something his school provides nor was it on the placement offer and they are not intending to start them. I was refused under the 'Head would not agree to part of the Personal Budget Regulations, which I know is completely wrong.

  1.  should the SEN team be doing the assessment? They are not social services and are in completely different buildings and departments
  2. Are the short break assessments different to the Chronically Sick and Disabled Persons Act (CSDPA)1970? If so, would I need to stipulate the difference in a request?
  3. A am I correct that the assessment I want is the CSDPA and I would write to the LA Safeguarding Board?

I have researched the  LA's safeguarding boards children's assessment chronically sick and disabled act in all its varieties and wordings and it leads me right back to the SEN Team.  If I do have to go through the SEN team I feel there is no point, as their assessment I assume is made round the table.  The team is very clear on the difference between severe and profound and simply complex.  I do understand funding needs to go to those in the severity of needs first, but severe and profound are the only ones possibly getting support from my LA.

ask ipsea

IPSEA  answers:

The first thing to remember is that direct payments for social care and personal budgets for special educational provision are two separate things.

A personal budget in the context of special educational provision is a notional sum of money identified by a local authority, usually when an EHC Plan is being drawn up or amended, to cover certain provision.  Even if a personal budget is identified (and there are reasons why local authorities don’t have to identify a budget) this doesn’t mean that direct payments for such provision will follow: for example, direct payments cannot be made for goods or services to be used in a school without the express written consent of the head teacher (and this may be what happened in your case).

The assessments and policy you refer to, from your local authority’s website, seem to relate to social care services and you can also receive direct payments for social care provision.  This is outside of IPSEA’s area of expertise.

However, a young person with an EHC Plan will have a number of needs identified by health, education and social care and the law is clear that if the provision to meet a special educational need “educates or trains” the young person, then this is special educational provision and should be in section F of the EHC Plan.

Therefore, in the context you’ve described, if there is a special educational need which requires provision in the form of swimming lessons (for example if your son required a non- weight bearing form of PE or if learning how to swim and be safe in the water was an identified step towards independence and adulthood) then those swimming lessons could be specified in section F of an EHC Plan.

We’re not sure if the swimming lessons are currently identified somewhere in your son’s EHC Plan?  If they are, and they are in section F, then regardless of whether you’ve been given a direct payment and regardless of whether it’s within the school’s “placement offer”, your local authority has a duty to secure that this provision is made under section 42 of the Children and Families Act 2014.  If they are in H1 or H2 then you need to pursue your local authority’s social care department because their duty arises under the social care statutes and not the Children and Families Act.

If the swimming lessons are not specified in your son’s Plan, or are in the Plan but not in section F, then you can certainly try to get the special educational need which means your son requires swimming lessons (and the lessons themselves) specified in the Plan in sections B and F respectively. You will require evidence of the special educational need and of swimming lessons (and their frequency) being the provision to meet that need. The annual review is the best time to try to get changes made to an EHC Plan.

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