Delivery of SEN funding through banded systems

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Recently, the High Court has dismissed an appeal against two policies adopted by the London Borough of Hackney (H) made by the claimants, children with SEN (together, AD). The full case can be found at R (On the Application Of) v London Borough of Hackney [2019] EWHC 943 (Admin) (12 April 2019).

What was the nature of the appeals?

The policies in question allowed H to administer their SEN funding to children who needed Education, Health and Care (EHC) plans, an additional “top-up” element of funding, through banded resource levels from a “high needs” block of funding. AD claimed that these higher-level provisions should be by reference to the individualised cost of the provision specified in the EHC plans. AD’s main argument was that the banded method of funding did not result in the needs in EHC plans being matched by the appropriate provision. They also challenged the decision to reduce the value of the resource levels by 5% for the 2018-19 financial year.

What was the High Court view?

The High Court held that nothing in the Children and Families Act 2014 prevented local authorities from administering their high needs SEN funding through a system of bandings, so long as the funding system secured the child’s overall SEN provision. In addition, H’s format was not inconsistent with the statutory scheme which requires EHC plans to have specified content which were “separately identified”, but the presentation of those sections within the plan was left to the discretion of local authorities.

The High Court added that it would likely be too onerous to require local authorities to undertake individual assessments of the costs of each child or young person’s high-need SEN provision and to allocate funding on that basis, rather than using a more generalised banded approach.

What does this mean for schools?

Local Authorities will likely look on the court’s comments in this case with relief. However, for schools it may be a slightly unnerving aspect that children with SEN do not have to be treated on an individual basis. As teachers know, no two school children are the same. Local authorities may want to take care when adopting banding policies that they do not make a sensitive area of funding too impersonal and systematic. It will be interesting to see whether this case is appealed, particularly if the claimants are able to demonstrate that the authority’s decision did have a negative impact on SEND provision in the area.

For more information on this, or any other education legal issues you’re interested in, please contact a Partner in our Education Team or call 0191 211 7777.