Parent Asks:

6.99 of SEN code states that schools “are expected to provide additional support which costs up to a nationally prescribed threshold”. Does this mean that a school should be able to evidence spend of £6000 of notional funding on a specific child with SEN if that child’s needs warrant it? As the national budget is not ringfenced, I am being told that school can not spend £6000 on my son specifically even though they immediately agreed that he needed the support of EHCP ( we have applied once but been turned down due to lack of evidence and recent involvement from an outside assessor. The LA are saying that they will not assess without costed provision plan showing an annual spend of £6000, however, the school say that they can not spend this amount.

 ASK IPSEA Answers:

It is not uncommon for an LA to try to refuse to carry out an EHC needs assessment with reference to school funding. LAs receive money from central government to pay for the services they provide in their area. In the case of education funding, they then delegate money for special educational provision (SEP) to schools. For mainstream schools there are three elements of this funding:

(1) The AWPU – the age weighted pupil unit – this is the basic per pupil funding which schools receive for every child whether or not they have special educational needs (SEN);

(2) Additional support funding – this is an identified figure within the delegated budget which each school receives annually. It is provided by LAs for mainstream schools and the Education and Skills Funding Agency for academies and free schools. This element of funding is used to fund SEP for children on SEN Support and a proportion of funding for children with EHC plans. However, this amount is a notional one, not based on an assessment of current pupils' needs and the real cost of providing for them. While it theoretically equates to £6,000 per pupil with SEN, the actual amount of money available depends on what the school is already committed to spending;

(3) ‘Top up’ (or ‘high needs’) funding for individual pupils. This funding comes from the commissioning home LA, as and when required, and is based on the child’s assessed needs. It is usually, although not exclusively, used to fund support for children with Statements or EHC plans.

For a refusal to assess case, funding should not become the main focus of the dispute. The LA may say that before they will assess, a certain amount must first be spent by the school from their delegated funding on the particular child. This is a matter of LA policy, not law. LAs cannot delegate the legal duties they owe to children and young people with special educational needs. The LA will, as a matter of policy, expect the school to spend £6,000 per annum on a child with SEN from element 2 of their funding before the school can come back to the LA and ask for top up funding. However, this does not equate to an argument that just because this has not yet been spent or the provision for a particular child is going to cost less than the additional £6,000 a year that the LA should refuse to assess. As in the above situation, a school may agree that greater support is necessary but not have the funding to put that in place themselves.

The legal test that applies is found at section 36(8) of the Children and Families Act 2014. The Act says that an LA must identify and make an EHC needs assessment of those children and young people in their area who have or may have special educational needs and who may need an EHC plan. In assessing whether the child or young person may need an EHC plan, the LA will need to consider whether they can receive the support they require without an EHC plan. There is no requirement at all for a school to have spent a particular amount before the LA must carry out an EHC needs assessment.

When the LA decides not to carry out an EHC needs assessment they must inform you that you have a right of appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”). Before bringing an appeal to the SEND Tribunal, you must consider mediation. This does not mean that mediation is compulsory, but it must be considered. The deadline for appealing is two months from the decision sent to you by the LA or one month from the mediation certificate, whichever is the later. For detailed information about appealing download IPSA’s Refusal to assess pack.