Schools have 'strong legal case to make councils fully fund SEND provision'

Schools are forking out millions of pounds for special educational needs provision even though there is often a strong legal case for obliging their local authority to fully fund it.

The majority of councils provide schools with up to £6,000 of funding for pupils who have a special education need.

The cost of delivering all provision needed for a pupil with an education health and care plan (EHCP) can of course rise beyond £6,000 – causing many schools to view SEND pupils as costly. The council is responsible for covering these costs, but the majority are withholding up to £6,000 from the total on the basis that schools have already been given that much.

The simple fact is the local authority remains responsible for the EHCP

However, several education law specialists believe councils are legally obliged to pay for everything. Provided the school has done everything in its power to help the pupil and has not fallen foul of the Equality Act, Polly Sweeney, a partner and education specialist at law firm Irwin Mitchell, says the council must stump up the additional cash.

Back in 2014, the Children and Families Act ushered in sweeping changes to SEND provision which made clear that the legal responsibility for special needs provision lies with local authorities.

“My experience in these cases is where a school is firm in saying it cannot deliver the provision within the funds delegated, and can demonstrate the costs of provision against the SEND funding provided by the local authority, then the local authority will agree to provide the additional funding,” she said.

“Rather than thinking ‘this is going to be expensive’, schools need to think ‘let’s go back to the local authority and ask them for the rest’.”

Almost a quarter of a million pupils had EHCPs (or their predecessor) in January last year.

If schools are required to find an additional £6,000 for each pupil, it would put an additional strain of £1.4 billion onto the total budget.

Julia Maunder, the headteacher of Thomas Keble secondary academy in Gloucestershire, said her school would be in a stronger financial position if it didn’t have to meet £54,000 of special needs funding.

The local council has an arrangement where it withholds £6,000 of additional cash for the first nine pupils with EHCPs at the school, though it fully funds the rest.

Laxmi Patel, the head of education at law firm Boyes Turner, said that whatever the individual funding agreements between local authorities and schools, ultimately local authorities would have to “cough up the cash” for an EHCP in court.

Her words were echoed by Ed Duff, SEND lawyer at HCB Solicitors, who agreed there is no existing regulation that requires schools to fund £6,000 of an EHCP.

If a school is proven to have misused public funds they could be found liable, he warned, but schools that are transparent about their use of funds will have a case.

“The simple fact is the local authority remains responsible for the EHCP. Schools must discharge the EHCP, but if the school simply does not have the funding to do so, the local authority must provide it.”