Pathfinder authorities and SEN Direct Payments: Your rights

The Government’s Green Paper for Special Educational Needs and Disabilities (SEND) - Support and aspiration: A new approach to SEN, published in March 2011, proposed changes to the SEN system including a new birth to 25 assessment process and a single plan incorporating education, health and social care assessments. The will include the use of personal budgets and 'direct payments' for special educational needs provision.

Direct payments mean that a parent/carer can apply to fund some of the provision in the statement themselves, perhaps by instructing their own speech and language therapist or occupational therapist.

The Government has appointed and funded 20 local authority pathfinders to test out these ideas. The Pathfinders will continue to be funded through to September 2014.

At the same time, the Government introduced changes to the Education Act by way of the Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012. This allows allowing parents to apply for direct payments if they live in a pathfinder area.came into force on 30 January 2012. The pilot applies to the "pathfinder" local authorities listed in Schedule 2. 

It makes changes to the Education Act. Section 532A of the Education Act 1996 now creates a power for local authorities to make a payment to a person with a SEN statement for the purpose of securing the special educational provision specified in the statement. Currently, LAs are only permitted to make such a payment in accordance with a pilot scheme made under section 532B. Section 532B enables the Secretary of State to make pilot schemes by order. 

The Order places a number of mandatory duties upon pathfinder authorities and the relevant paragraphs are below:

  • The local authority must provide information and advice about direct payments under section 532A(1) of the 1996 Act to parents ……whenever it serves a copy of a SEN statement or amended statement … (Schedule 1, paragraph 3 of the Order ); 
  • The local authority must consider any requests for direct payments for SEN (Schedule 1, paragraph 3 of the Order) in accordance with Schedule 1, paragraphs 10-12 of the Order; 
  • Where a local authority decides not to make direct payments, it must inform the proposed recipient and parent ….. of the decision and its reasons. They have a right to request a review (Schedule 1, paragraph 13 of the Order). 

Before it can agree to an application, under section 11 of the Order, a local authority must be satisfied—

(a) that the way the person who will receive direct payments proposes to use them to secure the agreed provision is an appropriate way to do so;

(b) that where a parent, nominee or representative is to receive direct payments on behalf of a beneficiary, that person will act in the best interests of the beneficiary when securing the agreed provision;

(c) that the making of direct payments in respect of the beneficiary will not have an adverse impact on other services which the local authority provides or arranges for children and young people in its area for whom it maintains a statement of special educational needs under section 324 of the 1996 Act or who are subject to a learning difficulty assessment arranged under section 139A of the 2000 Act; and

(d) that securing the agreed provision by means of direct payments in the case of that beneficiary is compatible with the authority’s efficient use of its resources.

The important paragraph here may well be (d) as local authorities may argue that allowing direct payments where there is already a block contract with a local NHS service for occupational therapy or speech therapy is not an 'efficient use of resources'. HOWEVER, they cannot have a blanket policy ( policy which is applied across the board to everyone irrespective of circumstances) and must consider each individual case on its merits.

The head of the school or college must also give his/her permission.

Is your local authority a 'Pathfinder Authority'? Find out here

Rachel Kamm, a barrister at 11KBW provides a useful summary here

Note that the right to apply for direct payments under the Pilot Order is about to be extended until 31 August 2014.

No comments:

Post a Comment