Talk to me about Personal Budgets and Direct Payments

What are they? 

Direct Payments Section J – any special educational provision that is to be secured by a Direct Payment, (and) the special educational needs and outcomes to be met by the direct payment.  

From the SEND Code of Practice – Provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is secured through a Personal Budget (page 166). 

You have a well-specified and quantified EHCP, and you have invested a lot of time and, quite often, a lot of money into ensuring that this is the case. Now the big question is: 

"Will the LA provide this, how, why and when?" 

The Children and Families Act 2014 makes it very clear that 'the Local Authority must secure the specified Special Educational Provision for the child or young person' Section 42 (2). 

There are, in some cases, provisions that are very specific because needs are complex and often complex in more than one area of need. Each one impacting and interweaving upon the other. These needs require very bespoke educational interventions and, on occasion a full educational package, such as an EOTAS provision. This provision is not as would be provided in an educational placement and may not, at face value, appear to be like a 'conventional' lesson. You may, for example, receive guitar lessons that provide OT for motor skills, literacy, social interaction, and participation in society by attending a group music lesson or session. They cover many elements of need with provisions that may not, in a school, be considered so – in school, it's just under 'music'.  

To add some additional weight to this, also go back to the Children and Families Act 2014 section 21(5). There is no rule that Special Educational Provision must be in itself exclusively educational, and no requirement for this to be exclusively so - see East Sussex CC v JC [2018] UKUT81(AAC) at 22. 

You may have a very well-specified and quantified EHCP, all of which can be met in the educational placement in Section I – apart from one very specific intervention, one that has been professionally evidenced and is sitting there in Section F – and is the one element that is resulting in schools not being able to meet the need.  

Your child was unable to attend school due to EBSA. You were privately funding play therapy and Forest School; this was extremely helpful. Your child is now on a gradual reintroduction back into school. This provision is not available in this school,  but you have reports from the providers saying how beneficial this has been, and they believe it should continue. This information is not in any other reports or evidences.  

What is the solution? Is there one?  

A Personal Budget - SEND Code of Practice – 'may contain elements of education, social care and health funding and can be controlled by the LA or via a Direct Payment where the individual receives the funding and it then becomes their responsibility to engage and manage the services which will effectively bring about the implementation of Section F, or those parts that cannot be delivered by an educational placement'.  

This can be music to the ears of so many – 'my child would really benefit from art therapy, equine therapy, or individual professional counselling to better understand their diagnoses.'. 

We believe you, however, just as with other EHCPs, Sections B and F must be very specific and in your professional evidence and written into professional reports.  

This is made even harder as some people will have a professional report from their art or play therapist stating this need and provision. An EP and OT from the LA may then come along with a higher level of professional qualification and standing and state that the need for evidence can be met in another way, in a less bespoke and cheaper way. 

The LA will not be looking to provide a Personal Budget if they see this as an inefficient use of resources, and these resources are either already in place for many or putting this in place will provide for more than just one individual. They may not provide a PB but will look to make a more individualised or personalised provision from, for example, an OT or SALT.  

Putting in training for all support staff to understand the importance of sensory circuits will be cheaper in the long term than funding an OT  to provide this for just one individual. Placing a child in a school that has therapy animals onsite will be cheaper than providing this as an additional therapeutic intervention that has to be additionally funded for just one child.  

So, where do Personal Budgets and Direct Payments come in? I'm told I can ask for these,  so why shouldn't I? 

Just like you can ask the Local Authority to name the school of your choice, and they must have 'regard' to this but not agree to it, a similar situation applies here.   

You can ask, but as discussed above, if the LA believes that the provision that you are looking to fund can be met elsewhere or isn't actually required at all, they will see your request and file it under B for bin.  

A Personal Budget can only be accessed by a parent if their child is under 16 years of age (up until the end of the academic year in which their child turns 16). 

After this time the then Young Person can manage their own PB, if they have capacity and ability (and to be honest would they actually want to undertake such a complicated process?). Should this not be the case, the parent manages the PB for their Young Person as an appointee.  

Personal Budgets.  

These can be via: 

• Direct Payments, where you are provided with a sum of money, and you organise and manage this – and evidence where and how this is spent. In the case of EOTAS, relate this directly to show that all of Section F is being delivered. You are the 'nominated appointee'.  

  
  

• Managed Arrangement – The LA, the school or College will manage the funding and the provision.  

  
  

• Third-Party Arrangement -  Direct Payment (see above) is made to an organisation or an individual who will organise everything for you. 

The Personal Budget allocation must be enough to ensure that the specified provision will be fully funded. This can be a contentious issue, as once again, just like in all other EHCP issues, if the LA can find a cheaper alternative – they will. They do not have to agree to your choice of provider, and if the source has a cheaper one, that's the amount of funding you will receive. 

So, what is the exact difference between a personal budget and a direct payment?  

·         They are both a funding facility 

·         Your child or young person has a right to a Personal Budget  

·         They do not have the right to a Direct Payment 

·         A Personal Budget can fund special educational, health and social care 

·         Direct Payments can only fund Special Educational Provisions* 

·         If you agree to a Direct Payment as far as the LA is concerned, it's over to you – organise and implement Section F – but we will want to see how, when and by whom.  

·         If you have a Personal Budget, then you do not have the expectation to carry this responsibility 

So let's look back at the how, why and when the LA will look to consider and agree to fund via a Personal Budget and Direct Payment. 

For this, look at DC&DC v Hertfordshire County Council (SEN) [2016] UKUT 0379(AAC) at [15] to [20]. 

"There is no bright line test to determine whether a provision is educational or not… (The starting point is) education is systematic instruction, schooling or training…not confined to the acquisition of knowledge such as the principles of physics.. provision should, of course, be directly related to the pupils' learning difficulty or disability; it should relate to a specified educational, objective and it should be possible to see what the provision is trying to instil, teach or train the pupil to do' For this also think independent living skills and basic life skills – these teach and train and are therefore a Special Educational Provision. Without Speech and Language therapy, would a speech-impaired or non-verbal child or young person be able to fully access their education? Of course not; this is a skill that directly relates to education and training. 

Ensuring that very specific interventions and provisions are made for complex EHCP cases often results in a battle. LA is batting this back and forth, saying that due to the complexity of the child or young person's needs, this isn't the remit of their funding – it must come directly from Health or Social Care. This happens surprisingly often, especially when you are looking for therapeutic interventions and in the provisions of Post 16 onwards. They will be attempting to avoid providing under a Personal Budget and Direct Payment, stating that this provision is not for education and training. To add to the fun that is EHCP enforcement – you must provide evidence that this is for education and training and why, how and when.  

Remember that if the LA are pushing back, always go to the law, and in this case, it is the Children and Families Act 2014 because the SEND Code of Practice is 'statutory guidance'. The LA must have 'regard' to this – See Section 77(4) of said Children and Families Act 'must have regard to the Code when exercising their functions'.  

 The SEND Code of Practice is a kind of 'half way house'- sitting between guidance and the law.   

'The Code is not, however, binding law. Where there is a difference between the law as set out in statutes, regulations and case law, and the Code, the Tribunal must follow the law.' [2016] UKUT 0385 (AAC) at [52] 

*Direct Payments for health and social care can be provided separately via (under age 18) Children Act 1989 /Care Act 2014 for adults

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