Inclusion Now 55 – Legal Question
“I am concerned about my Local Authority’s ability to properly fund the SEND provision that all children with special educational needs require to be educated in mainstream education. All the mainstream schools in our Local Authority are running a deficit budget. That means that many of our children will see cuts to SEND provision. I understand that the Government has reviewed the funding regulations which means less flexibility for Local Authorities to use funding, such as reserves, elsewhere to cover the shortfall. What can I do?”
There has been a lot of media coverage over the cuts to funding for SEND provision, so it’s not surprising that you have concerns. As you have concerns about SEN funding, there are a number of options available to you.
If your child is considered to have SEN, the school should follow a ‘graduated approach’. This is made up of four parts. Firstly, your child’s needs are assessed. Then a plan is put together to support progress. The plan is implemented, and then reviewed.
As part of this approach, specialists can be brought in to advise on any necessary intervention.
In general, schools must fund the first £10,000 of SEN Support identified through this four step approach. If this amount isn’t enough to cover the support, then top up funding can be requested from the Local Authority. You can ask the School to request this for you.
If your child’s needs are not being met under SEN Support and top up funding is not available, you could apply for an Education, Health & Care Plan, known as an EHCP. An EHCP outlines the needs of your child, what support must be implemented to meet those needs, and where your child will receive an education.
An EHCP is a legal document which places an obligation on the Local Authority to fund the education provision in the EHCP and to make sure it’s implemented. To have an EHCP put in place, your child will need an Education, Health and Care Needs Assessment (EHCNA) and for it to be decided that an EHCP is necessary after this assessment. You can ask the Local Authority to conduct an assessment in writing. The Local Authority must conduct an assessment if there is a possibility that your child may have SEN, and that special educational provision may be necessary.
If the Local Authority are not implementing the support in the EHCP, you should first contact them and ask that the support is implemented. If they still don’t implement the support, you could consider a complaint to the Local Government and Social Care Ombudsman. They can investigate and make recommendations about what the Local Authority should do. You must first go through the Local Authority complaints procedure without success.
Judicial Review may also be considered if the Local Authority are not meeting provision in the EHCP. A Judicial Review is where you take the Local Authority to court when they have done something unlawful.
To make a Judicial Review, you usually have to have pursued all other options first, but for urgent situations, such as your child missing out on their education because of a failure to implement an EHCP, an urgent Judicial Review can be considered immediately.
Funding cuts can also be challenged by Judicial Review.
In 2018, Simpson Millar successfully challenged Bristol City Council’s decision to reduce SEND spending. The Court decided that the process which led to the Council cutting funding was legally flawed, so it had to reconsider its decision.
Ultimately, Local Authorities can only cut funding if it’s done lawfully. If your Local Authority makes cuts to the funding available to meet the needs of children with SEND, you should seek specialist legal advice to see if you can legally challenge that decision.
Our Education and SEN Solicitors can help ensure that children and young people get suitable provision at school and that funding is in place.
Gillian and Hannah
Paralegals in the Public Law Team at www.simpsonmillar.co.uk