How to Challenge Local Authorities on Shortfalls in SEND Funding

As VWV prepares to join school leaders at EdExec Live Bristol, Gloucester and Southwest, the firm shares essential guidance on how schools can confidently challenge SEND funding decisions and ensure that statutory duties are properly met

Schools are on the frontline of meeting the needs of children and young people with special educational needs and disabilities (SEND). Yet too often, they find themselves under intense financial pressure, expected to provide support without the necessary funding. Knowing how to challenge LAs on SEND funding decisions can therefore make a real difference.

SEN Funding Duties

The relevant statutory duties in relation to SEND funding include:

LA’s duties:

• Section 42 of the Children and Families Act 2014 (CFA 2014) places an absolute duty on LAs to secure the education and social care elements of the provision in Education, Health and Care Plans (EHCPs).
• Section 19 of the Education Act 1996 places a duty on LAs to make arrangements for the provision of suitable education for children of compulsory school age who cannot attend school because of illness, exclusion from school or otherwise.

Integrated Care Boards (ICBs) duties:

• Section 42(3) CFA 2014 placed an absolute duty on ICBs to secure the health-related provision in EHCPs.
• Section 3 National Health Service Act 2006 imposes a duty to arrange health provision in schools to such an extent as it considers necessary to meet the reasonable requirements of the people for whom it has responsibility.

Schools’ duties to:

• Admit a child or young person once named in an EHCP (section 43 CFA 2014).
• Use ‘best endeavours’ to secure that the special educational provision called for by the student’s educational needs is made (section 66 CFA 2014).

Schools should be familiar with these so that there are able to remind LAs that non-delegable duties that fall to LAs/ICBs should not be taken on by the school, and that the LAs and ICBs should speak to each other where there are disputes in relation to who is funding what.

Challenging funding decisions

If funding issues persist, schools can take several proactive steps including:

• Where the LA is proposing to name a school in Section I of an EHCP, providing a robust consultation response that includes the school’s views on costings for the provision.
• Ensuring Sections B (details of SEN) and F (SEN provision) of an EHCP are specific and quantifiable to ensure that the plan attracts an appropriate level of funding.
• Where a pupil has an ECHP, requesting an emergency annual review where funding issues are identified to initiate dialogue with the LA without delay.
• Preparing clear and detailed costs provision maps for each child with SEN, in consultation with the school’s business manager, SENCo and staff that work with each pupil to ensure that the school can present arguments armed with relevant data and evidence.

Escalating matters

Where disputes remain unresolved, it is important that schools request a clear justification from the LA so that they have the information needed should they like to escalate matters.

Options include:

• Making a formal complaint to LA and progressing matters to the Local Government and Social Care Ombudsman.
• Asking the Secretary of State to intervene where it considers that a LA has acted unreasonably in the exercise of its education functions under Sections 495 to 497B Education Act 1996.
• Applying for judicial review. As a measure of last resort, schools should have at least exhausted the LA’s complaints procedures before applying for judicial review and should seek legal advice before considering legal avenues.

Challenging SEND funding decisions therefore requires a clear and methodical approach from schools which can be time-consuming. Importantly, they should not assume responsibility where LA and/or ICB duties apply and should therefore be clear on these duties from the start.

This is a sponsored article, brought to you by VWV.

For further advice on SEND funding challenges, please contact Miriam Benitez at VWV on 0207 665 0802 or by email at [email protected]