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Comparing SEND responsibilities amongst schools and Local Authorities

Within this article, we consider the SEND responsibilities of schools and Local Authorities (LAs) and the relevant financial commitments attributed to those responsibilities.

Background

The Children and Families Act 2014 secures the general presumption in law that children and young people with SEND should be educated in mainstream education settings. For 2024-25, the UK government has given approval for 23 councils to portion money from their school budgets (amounting to approximately 67 million pounds towards SEND funding in schools).

The SEND obligations of schools and LAs

Mainstream schools and academies receive a budget allocation towards SEND, using funds from the dedicated schools grant. LAs are responsible for calculating the amount of the notional budget using the local mainstream schools funding formula factors National funding formula for schools and high needs 2024 to 2025 (publishing.service.gov.uk). The LA requirement to identify the budget for their schools is set out in regulation 11(3) of the School and Early Years Finance (England) Regulations 2022 (the Regulations). LAs must then identify within each budget an amount calculated by reference to the requirements of Part 3 of the Regulations. Such amount must be calculated using a threshold sum of £6,000 per pupil, above which a school will be expected to meet the additional costs of pupils with special educational needs from its annual budget share. The notional SEND budget is not separate from a school's overall budget but is instead an amount identified within a maintained schools delegated budget share or an academy's general annual grant.

Amongst other expectations set out in the SEND code of practice, mainstream schools are expected to:

• Meet the costs of special educational provision for pupils identified as on SEND Support in accordance with the SEND Code of Practice;
• Contribute towards the costs of special educational provision for pupils with high needs (most of whom have education, health and care (EHC) plans), up to the high needs cost threshold set by the regulations (currently £6,000 per pupil per annum). This cost threshold is calculated by reference to the additional costs of provision, above the costs of the basic provision for all pupils in the school. High needs top-up funding is provided above this threshold on a per-pupil basis by the LA that commissions or agrees the placement;
• Use their best endeavours to make sure that a child with SEND gets the support they need (such as providing quality teaching and monitoring the progress and development of pupils);
• Ensuring that pupils with SEND engage in activities of the school alongside pupils who do not have SEND);
• Designate a teacher to be responsible for coordinating SEND provision - the SEND coordinator, or SENCO;
• Publish a SEND information report and their arrangements for the admission of disabled children, the steps being taken to prevent disabled children from being treated less favourably than others, the facilities provided to enable access to the school for disabled children and their accessibility plan showing how they plan to improve access progressively over time.

In addition, LAs also have a range of duties, such as:

• To offer advice and information directly to children and young people;
• To provide health services to make joint commissioning arrangements about the EHC provision of children to secure positive adult outcomes for young people with SEND; and
• To make young people aware through their Local Offer of the kind of support available to them in higher education.

It is important to remember that there is not a one size fits all approach in terms of how much contribution each LA makes to their mainstream schools. This is all dependent on the needs and requirements of the pupils at each school and the support that can be offered. The notional SEND budget is not intended to provide a specific amount per pupil for those with lower additional support costs. LAs must publish a Local Offer, which should set out in one place information about provision they expect to be available across education, health and social care for children and young people in their area who have SEND, including any agreements about how schools will use any budget that has been delegated to them by the LA. This is relevant to decisions that the LA makes as to whether it will be necessary to issue a EHC plan. The purpose of a Local Offer is to provide clear, comprehensive and up-to-date information about the available provision and how to access it and to make provision more responsive to local needs and aspirations by directly involving those with SEND.

In 2024 to 2025, LAs will also be required to review how their schools' notional SEND budgets are calculated. Currently, the majority of LAs calculate their schools' notional SEND budget using a combination of funding from the basic entitlement factor, the deprivation factors and the low prior attainment factors in the local funding formula.

How can schools find out more about the LA's SEND input?

Data at LA level on pupils in the SEND support category and those with EHC plans can be viewed at special educational needs in England. Comparisons between LA SEND support calculations may also be helpful. According to The notional SEN budget for mainstream schools: operational guide 2024 to 2025 - GOV.UK (www.gov.uk) the government may ask LAs to review their calculations if it appears that their total notional SEND budget provides schools with less than a certain amount per pupil (having deducted £6,000 per pupil with an EHC plan). According to National funding formula for schools and high needs 2024 to 2025 (publishing.service.gov.uk) the minimum per pupil levels in 2024-25 will be set at £4,610 per pupil for primary schools and £5,995 per pupil for secondary schools.

It is important that LAs are transparent in their assessment of what provision their mainstream schools should make as part of the local offer of provision for children with SEND. It Is also important that schools maintain open communication with LA's to ensure that they are receiving all the support necessary.

Overall it is imperative that schools understand the notional budget allocated and schools understand their obligations to pupils with SEND within the SEND code of practice. Schools should continue to liaise directly with the LA to clarify any areas of uncertainty in order to establish high quality support to pupils with SEND.

For more information contact Alexandra Adesina in our Education department via email or phone on 0161 830 8814. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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