How Education, Health and Care Plans are funded

A child or young person will have an EHCP because their special education needs (SEN) call for special educational provision to be made in accordance with an EHCP. The local authority responsible for providing provision set out in an EHCP will be the one in which the child or young person resides, as defined by its geographical boundaries. If a child or young person has a residential placement or school outside of the local authority where their parent or carer resides, the local authority where their parent or carer resides will be responsible.

Local authorities are responsible for securing the educational provision detailed in Section F of an Education, Health and Care plan (EHCP). It is not the legal responsibility of the school, college, or educational institution to secure the provision.

Funding Bands and Provision Specification

Sometimes, a local authority will apply bands to the level of support or funding arrangement. These can be referred to in the EHCP but should never be used to replace specifying the provision required by virtue of the child’s or young person’s needs. If the provision refers to a banding of support, it is problematic because the funding of each band can be changed at any point by a local authority without a clear route of redress because the EHCP itself has not been amended. The provision should, therefore, be set out clearly and specifically. It should be quantified so there is no room for doubt as to what is to be provided, how often, and how it will be implemented.

Banding Limits and Duty of Local Authorities

Banding limits should never prevent the special educational provision detailed in Section F of an EHCP from being delivered. A local authority has a duty to secure the provision. Therefore, even if a funding band specified is insufficient to secure the provision stated in an EHCP, it must still ensure that the provision is provided. Failure to do so is a breach of statutory duty. A Pre-Action Protocol Letter for Judicial Review could be served on a local authority to attempt to force them to comply.

Personal Budgets and Direct Payments

Parents or young people can gain some further control over the delivery of provisions through the use of a personal budget and direct payments. When issuing a draft EHCP following an EHC needs assessment or when reviewing an EHCP, a local authority must consider identifying a personal budget for educational provision if a parent or young person requests it. A personal budget identifies the notional amount available to secure the provision specified. 

However, in some situations, a local authority will not be able to disaggregate the funding for a particular provision. If a local authority can identify the amount available to secure a particular provision, this could be delivered by way of a direct payment. Where eligible, a direct payment sufficient to cover the provision required is paid directly to the parent or young person to arrange the provision themselves.

If you require further advice for any of the issues raised, please get in touch. I can be contacted on 01245 453805 or via email at madeleine.oakley@birkettlong.co.uk