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Education Legal services for Families, in particular, Special Educational Needs & Disability
Education Lawyers

Personal Budgets in an EHCP

The Children and Families Act 2014 brought in the right to request a personal budget as part of an Education, Health and Care Needs Assessment (EHCNA). A personal budget can be used to provide vital support to support a disabled child needs that the local authority cannot itself offer.

Personal Budgets legislation is contained in S49 of the CFA 2014, along with separate regulations for direct payments for special educational provision, health care and social care provision. The relevant legislation is:

  • The Special Educational Needs (Personal Budget) Regulations 2014
  • The National Health Service (Direct Payments) Regulations 2013
  • The Community Care, services for Carers and Children’s Services (Direct Payments) Regulations 2009
  • The Care and Support (Direct Payments) Regulations 2014

PBs are designed to be flexible and innovative and the provision should be included in Section J of the EHC plan. It doesn’t just have to be a sum of money as there are several ways they can be facilitated including direct payments (where individuals receive the cash to contract, purchase and manage the service required); or where the council, school or college holds funds and arranges the support specified in the plan (notional budgets); where a third party organisation manages the direct payments on behalf of the child’s parents or young person; or a combination of the previous option.

There is no specific amount, it depends on what is being arranged within the context of the EHCP when it is being created or at an annual review. There are situations when the LA may refuse to consider a personal budget, such as if the provision is part of a larger package, eg, if the NHS is providing a therapy and it isn’t possible to separate the different elements.

How can a Personal Budget be used?

As stated, if your child needs provision the LA cannot itself offer, a personal budget can be used. For example, this might include specialised education equipment, assistive tech, individualised physiotherapy or hydrotherapy, tutoring when a child isn’t able to attend school, as part of an EOTAS (Education Other than at School) package, or other kinds of provision the LA agrees is suitable. It cannot be used to pay school fees. There isn’t a lot of legal guidance for how a personal budget can be used; the local authority sets its own policy, which should be listed on its Local Offer website. This means it’s up to you to show how the money will improve your child’s outcomes.

Is it easy to get a Personal Budget?

You should be offered the option of a personal budget during the EHCNA. However, recent figures show only around 5% of EHCPs come with a PB. This is doubtless because the LA fails to tell parents it’s an option, or tells them their child “won’t qualify” for one. They leave the onus on the parent to ask which, if they don’t know of their existence, is unlikely to happen. Most PBs are for social care provision – and this is another way the LA limits who gets one as they also often fail to tell parents their child should have a social care assessment as part of the EHCNA. Often, if they do tell the parent, the social care department comes back to say the child “isn’t known” to social services so can’t have one. This is not a lawful position to take – both the option of a personal budget and a social are assessment should be offered. After all, it’s called an Education, Health and Care Plan, not just an Education Plan.

A report by the Local Government Ombudsman (LGSCO) in 2022 found councils were commonly failing to the right information, delaying parental requests, not giving clear reasons for a decision, and failing to give advice on the right to review. They were also delaying making payments. This means parents must ensure they understand the rules themselves and are persistent in ensuring their request is considered properly and in a timely way — which they shouldn’t have to do.

How our team can help

If you are told by your case officer that your LA isn’t offering personal budgets, that you “don’t qualify”, even after you’ve shown them the law (as above) we can help. If you feel you’re being fobbed off or unfairly refused, please do not hesitate to get in touch with us for legal support. We are experts in navigating the system and have a lot of experience in how a Personal Budget may help your child, including the kind of provision they may benefit from.

We can help with everything from just a legal letter reminding the LA of its duties, to handling the entire process, ensuring your child’s EHCP is lawful, specified, quantified and actually useful – and that has a PB, where appropriate. Call us or get in touch using the methods below.

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