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SEN specialist Suzannah Lindon-Morris and solicitor Douglas Silas explain the law on contributory funding for SEN pupils in independent mainstream schools

Does your child have a Statement or EHC Plan?

In order to succeed in getting a placement for their child at an independent mainstream school funded by a Local Authority (LA), parents first have to obtain for the child a Statement of SEN or an Education, Health and Care (EHC) plan. Only then, if parents can prove that the school in question can meet their child’s needs; and that it would not be ‘unreasonable public expenditure’, will the LA agree to name and pay for that school on the child or young person’s Statement/EHC plan.

Is there a suitable alternative state school?

Sometimes, the LA’s choice of named school (usually a local maintained/state school) can also arguably meet the child’s or young person’s educational needs adequately and more cheaply, so parents then fail to get the LA to pay for the school or the special educational provision required.

Splitting the bill

Parents can still be successful though. Whilst there is no getting around the fact that there is an increased expense of annual fees for independent schools, parents sometimes successfully persuade an LA to come to a contributory funding arrangement with them, whereby, for example, the LA agrees to pay for the additional SEN provision that they would have had to provide in their preferred maintained mainstream school, on the basis that the parents will then agree to pay for the school fees and transport costs at their preferred independent mainstream school.

This kind of agreement can also be reached before or during an appeal to the Special Educational Needs and Disability Tribunal.

Whilst Tribunal panels cannot order contributory funding arrangements, sometimes, agreements are only reached during the course of an appeal (especially when a Tribunal hearing is looming).

Grounds for gaining funding

Arguments are also often more successful when parents can evidence that they have already tried to make their child’s placement at a maintained mainstream school work, but this has not happened, even with additional support, despite ability and potential. Some other things which parents successfully argue are:

  • School size - maintained mainstream schools are often larger than independent ones, which may be important for the ability of a child or young person to attend school (for example, they may have organisational or sensory issues);
  • Class sizes - mainstream independent schools usually have smaller classes than their maintained counterparts (so, for example, if a child or young person has attention difficulties, or perhaps a hearing or visual impairment, they may need to be educated in smaller classes);
  • Environmental/peer group – parents sometimes argue that placing a child in a wrong environment/within an inappropriate peer group can have a significant impact on their self-esteem and emotional well-being and evidence that the child needs the social aspect and academic challenge of being in a mainstream school, but also needs environmental/peer group features described above.

Effects of the new SEN Code of Practice

Sometimes LAs tell parents that it is unlawful for them to make contributory funding agreements, especially now we have moved to a new SEN framework with EHC plans replacing Statements.

However, there is nothing in the Children and Families Act 2014 or the new SEN Code of Practice (CoP) 2015 which prevents an LA from reaching a contributory funding arrangement with parents.

In fact, the CoP actually makes reference to such arrangements being possible!

The CoP even states that, if the LA is not satisfied that the parents’ alternative arrangements are suitable (for example, if increased specialist support is needed to be brought in for the child, such as weekly occupational therapy sessions), then the LA can ‘choose to assist the child’s parent or the young person in making their arrangements suitable, including through a financial contribution’ (although they are under no obligation to do so).

Personal Budgets and Direct Payments

Another way parents can achieve similar results to a contributory funding arrangement, might be for them to request that any quantifiable support in an EHC plan is set out as a Personal Budget (PB) by the LA. PBs are where the LA equates the provision in a child’s EHC plan to a sum of money. PBs are only available under EHC plans (not Statements).

Parents can request (though the LA are not obligated to provide) Direct Payments, where the LA provides the money for their child’s support directly to the parents and they are then responsible/free to choose and source the support. Whilst parents cannot spend this on school fees, they could fund the school fees privately and then use the Direct Payments to fund specialist support (eg speech and language or occupational therapy) for their child.

This would then effectively achieve a similar result as a contributory funding arrangement, without having actually reached one with the LA.

Douglas Silas is principal and Suzannah Lindon-Morris is a SEN specialist at Douglas Silas Solicitors   www.SpecialEducationalNeeds.co.uk

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