SEND deficit could double if we pay private costs, council says

A London council has warned that its £19 million SEND deficit could double in size if it is ordered to cover more private schools’ special education costs.

Orthodox Jewish independent schools have launched legal challenges against Hackney council in a bid to secure cash for their SEN support provision.

Provision in private schools for children with education, health and care plans (EHCPs) is funded by councils. But settings do not automatically receive state cash to support those entitled to SEN support but without a plan.

Government data shows that a fifth of pupils at all 25 of Hackney’s independent Jewish schools had SEND last year. Four per cent had an EHCP and a further 16 per cent were categorised as having SEN but without a plan. 

However, in four of the schools the latter figure was over 20 per cent. 

Hackney’s draft local SEND reform plan shows Charedi private schools have legally challenged the council for funding for pupils with SEN but without an EHCP. 

The council said the schools have used section 63 of the Children and Families Act 2014 to legally challenge the authority for non-statutory support. 

The legislation states that councils must pay any fees relating to the SEND provision at an independent school, Graham Burns, a partner at law firm Stone King, explained.

The “usual route” for this is for the school to be named in an EHCP. 

“This obligation also applies if there is no EHC plan and the local authority is satisfied the child or young person requires special educational provision – and that it is appropriate for them to receive it at the institution in question,” Burns added. 

“There is an element of discretion for the LA in terms of how [it] applies to a particular case, whereas the naming of the independent school in the [EHCP] provides a clear and direct obligation for the fees to be met.”

‘Murky legal position’

National Association of Special Schools boss Claire Dorer noted that these caveats leave the act’s “practical position somewhat murky legally”. 

The council has urged the government to amend or delete these parts of the act “to remove this funding ambiguity outside of an EHCP” and provide “advisory support to help manage this complex demographic dilemma”.

It added: “While we recognise our duty to all residents, funding independent settings outside the state-maintained infrastructure places the council in an untenable position. 

“If Hackney is held liable to fund SEN support in independent schools, our high needs block deficit will approximately double, neutralising our ‘invest-to-save’ strategy.”

Separate council papers suggest its high needs deficit stood at £19.1 million in April. 

A council spokesperson said they could not comment on ongoing legal proceedings. But they noted there were “significant challenges in ensuring” its children with SEND “have full access to the support they need and deserve”.

“One in five of our children receive specialised support, and we are working closely with the [Department for Education] on the relevant funding and policy frameworks to ensure we can continue to support all our residents effectively.”

This comes as papers detail how the council is planning to convert some Jewish private schools into state primary and secondary schools, which receive government funding.

Hackney council’s SEND reform plan shows the birth rate among the Charedi Orthodox Jewish community in parts of the borough is rising – bucking wider trends in the area.  

It accounts for about 30 per cent of school-age children in Hackney. Most of these pupils attend independent faith schools. 

One solution the council is also working on with the community is “to investigate new provision models, including a transition pathway to voluntary-aided (VA) status”.

Those with VA status are maintained by the council and often have a religious character. They are allowed to select up to 100 per cent of pupils based on faith.

Two are expected to make the switch “within the next three years”, with several having already “expressed interest”.  

“This shift will create new opportunities for specialist-maintained provision specifically tailored to the Charedi Jewish community.”

‘Difficult financial climate’

PaJeS, an organisation supporting Jewish schools, stressed that Charedi schools “are facing a genuinely difficult financial climate, with VAT on fees, the loss of business rates relief and rising staffing costs all landing at once”. 

They “rely heavily on community fundraising to keep fees low”, but that is “no longer enough” for many of them. 

VA “status is the only route that allows for full faith-based admissions, which is why it’s the option being explored,” PaJeS said.

“It is positive that Hackney is working with the community on this, rather than risking a situation where schools close and the local authority is left without the places, or the appropriate provision, to accommodate these pupils.”

Labour’s schools bill, passed this year, scrapped the “free school presumption”, which dictated that councils must first consider bids to open an academy when a new school is needed.

The rule effectively meant that the route to open other new schools – including community schools and VA or controlled schools – was complex.

But the law change raises the prospect that more proposals for new VA primaries and secondaries will emerge and be accepted by councils.

Figures shared by former DfE adviser Tom Richmond show only nine private schools converted to VA status since 2003. Over the same period 32 became academies. 

A Private Education Policy Forum report, co-authored by Richmond, found financial concerns were the biggest driver behind them moving into the state sector. 

The council also deems it “very likely” these Charedi schools would be left “unable to access or adopt” government SEND support, creating a “two-tier system where inclusive local support is restricted to the maintained sector”.  

It will conduct “proactive engagement” with the DfE to secure “specific permissions or flexibilities for independent faith settings to interface” with its experts at hand scheme. 

The scheme aims to provide health professionals and specialist teachers to support SEND pupils in mainstream schools.