As LAs explore legal action over SEND funding plans, SCA explains what families can do too

Councils are talking to lawyers about a potential judicial review of the Government’s new proposals for SEND funding. Will they have the courage to stand up for the rights of children and young people with SEND or will they continue to implement covert cuts?

What will the proposals involve?

Under the new proposals, local authorities will no longer have the flexibility to move funding from general reserves or other council budgets to fill shortfalls in their High Needs budgets. Unless they have permission, they must stay within their Dedicated Schools Grant (DSG) allocation. This effectively means that while local authorities retain the legal responsibility for SEND funding, the Government will hold the purse strings.

What is the DSG?

The DSG is the ring-fenced funding the Government allocates to local authorities for education. Local authorities used to have the flexibility to decide how to divide up funding, but now the DSG is split into four separate funding blocks: Schools, Central Schools Services, Early Years and High Needs. The High Needs Block is used to fund special schools, mainstream resource bases/units, and pupils/students that need significant levels of additional support in mainstream schools or further education through Education, Health and Care Plans (EHCPs).

Local authorities cannot normally move money out of the Schools Block without the agreement of the local Schools Forum (a consultative body of school leaders), and they can’t normally move more than 0.5% of its total value. If LAs want to move more than 0.5% (or if they want to move money when their Schools Forum has said no), then permission must be sought from the Secretary of State to ‘disapply’ the rules. This year, 25 councils put in disapplication requests. Only two of them were approved in full, with one partial approval.

“Robbing Peter to pay Paul”

In 2019, when three families, led by SEND Action, one of the founder grounds of SCA, took a judicial review against the Government over SEND funding, the Government’s barrister argued that local authorities must “rob Peter to pay Paul”. What this meant was that local authorities must transfer money from other budgets in order to meet their legal duties to children with SEND. Now the option to “rob Peter” is being restricted. Local authorities can apply to the Secretary of State for Education to transfer funding from other sources, but if Gavin Williamson’s responses to DSG transfer requests are any indication, the signs are that he’s not feeling generous.

How will this affect SEND provision?

It’s looking as though from now on, local authorities will have to make further cuts to SEND provision in order to stay within inadequate High Needs budgets. The only other possibility is to transfer funding from the Central Schools or Early Years Blocks.
We’re already witnessing a number of local authorities embarking on their annual round of SEND cuts, with the main targets being SEND transport and funding levels for EHCP bands in mainstream schools. 

Bogus consultation

SEND Action raised concerns about the Department for Education’s funding proposals last October when the plans were still at consultation stage:  Now they have decided to forge ahead, despite serious concerns raised through consultation responses about the impact on children and young people with SEND.

The full consultation responses have not been published, but it’s clear from the summaries in the consultation report that we’re not the only ones who are worried:

“The most common reasons for opposing the first proposal were that it would reduce local authority autonomy and a concern that it might prevent local authorities from meeting the needs of pupils with special education needs and disabilities (SEND).”

“One concern was that mainstream schools would ultimately suffer if an LA continues to carry a DSG deficit, and would need to contribute to eliminating the deficit.”

“Another was that LAs would not be able to carry out their high needs duties if they were unable to draw on general funds.”

“A few bodies other than LAs or schools forums claimed that the proposals could prevent LAs from carrying out their legal duty to fund SEN provision.”

The Department for Education dismisses the legitimate concerns of these mysterious “bodies” with extraordinary arrogance:

“Finally, some respondents argued that the changes would prevent LAs from carrying out their legal duties to fund SEND. The Department does not accept that. The duty to fund SEND  under the 2014 Children and Families Act is unaffected, and the only change is that the cost must in the end be met from successive years’ DSG allocations, unless the Secretary of State authorises that the LA can meet some of it from other funds.”

The duty may remain the same, but the financial capacity to meet that duty has been severely constrained.

Begging and borrowing

So what if the DSG isn’t enough for local authorities to meet their legal duties? Councils could take their begging bowls to the Secretary of State (good luck with that), or in theory, continue to rack up their deficits. But the bailiffs are peering through the curtains of those struggling to manage their debts. 

The DSG Conditions of Grant 2020-21 states: “The Secretary of State reserves the right to impose more specific conditions of grant on individual local authorities that have an overall deficit on their DSG account, where he believes that they are not taking sufficient action to address the situation.” 

If this sounds like a threat, that’s because it is. Local authorities with a deficit of 1% or more of their DSG will be required to submit a deficit recovery plan. In this, they must explain how they plan to balance the books and bring the DSG account back into the black. 

In theory, this could bring much needed financial accountability and oversight. Unfortunately, what it seems to mean in practice is that local authorities that are already failing to meet their legal duties to children with SEND are under pressure to make further cuts to SEND provision in order to reduce their deficits and stay within their High Needs budgets.

And if they don’t? Well, ultimately, local authorities could be forced to issue a Section 114 notice, their equivalent of declaring bankruptcy. This would involve banning expenditure on all services except for their statutory obligations, ironically the very services that are being targeted for cuts.

The Missing Millions

The Government claims it allocated an “additional” £780 million for High Needs last year. It's trumpeted this constantly ever since whenever questions are asked about SEND in the House of Commons. But this was a one-off payment and there are no promises for future years.

Was this funding tracked and accounted for, its impact assessed, as recommended by the Education Select Committee in its SEND Inquiry report? Not as far as we can tell. From the sample of local authorities we’ve looked at, it seems to have been sucked into the Bermuda Triangle of SEND funding, used to reduce existing deficits rather than to make a difference to outcomes for children with SEND. 

Meanwhile, the crisis in SEND continues unabated. Thousands of disabled children are receiving no education, in some cases for years. Children with SEND are being forced out of mainstream education, often unlawfully. We are receiving increasing reports from parents of children being turned away by schools that tell them they cannot meet their needs. Local authorities are reducing EHCP funding levels in mainstream schools, making cuts to speech and language therapy and SEND transport, and overcrowding maintained special schools. These decisions place not only the education, but also the safety, of disabled children at risk.

What can you do?

While it may seem that these are high-level decisions that you cannot influence or do anything about, this is not true. There is action you can take and there are steps you can make to ensure your own child(ren) are protected as far as possible.

1. Take legal action

Given that these proposals run against the arguments the Government made in the High Court, they could be open to legal challenge. Local authorities seem to think this is worth looking at, and it’s an option open to families and possibly schools too. If you want to find out more about judicial review please get in touch with us. But time is tight and anyone looking to take legal action would need to move quickly.

2. Write to your MP

We understand the proposed funding changes would have to be brought in through amending secondary legislation which will be placed before Parliament. If you are concerned about these proposals you can write to your MP expressing these concerns and asking them to vote against the proposals. Here’s a template letter you can adapt. (MS Word)

. Send us your evidence

Our first joint project as SEND Community Alliance will be to gather evidence about the impact of the Department for Education’s funding proposals and local authorities’ deficit recovery plans. We need your help to build up a clearer picture of what’s happening around the country. Contact us for more information about how you can get involved.

. Get your child's EHCP in order

Local authorities are under a statutory duty to secure the special educational needs provision specified in an EHCP. This duty applies regardless of the local authority’s budget and available resources. Since many local authorities are planning to reduce funding band levels, it’s vital that EHCPs are properly quantified and specified (links to IPSEA).

5. Ensure EHCPs are adequately funded

Top-up funding must be sufficient to secure the special educational provision specified in EHCPs. Any schools not receiving sufficient funding to secure provision specified in EHCPs should refer to paragraphs 80 and 72 in the High needs funding: 2020 to 2021 Operational guide.

Local campaigns against SEND cuts

If you want to know what's going on around the country or close to where you live about SEND campaigns, we have compiled the following list. If you know of more, please let us know.

Read earlier posts