Q:
Is there any legal basis for an LA to enforce pre-defined costings onto schools spending of the notional budget?
When providing provision maps to support top-up funding requests Derbyshire County Council is requiring provision to be costed at a pre-determined amount rather than the actual cost even when the school is evidencing the cost of what they are already doing (ie from their notional budget). This means that schools are repeatedly working at a loss in relation to this- can local authorities legally do this/ or is there a legal challenge that can be made against them doing this please?
A: SenseCheck
- 0 Yes
- 0 No
- 1 Other
- 23 Mar 2025
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Other
Other
Can't answer yes or no.:
Ms Kamillo,
I suggest we disregard the reference to Derbyshire; in any case, other SENDCos and Heads have reported encountering similar challenges, so the issue is evidently not confined to the local authority you mention. In any event I feel sure that anyone reading what you have written would appreciate that your reference to this LA is intended as illustrative, rather than suggesting they are unique in this regard.
Without delving into detail, I am aware that some schools facing this situation have indicated to the relevant local authority that they would consider pursuing a judicial review. This approach appears to have prompted a more constructive response in those cases. The essential argument is that deviating from the actual cost of provision—and substituting it with an alternative, lower cost that bears no relation to the real expenses borne by schools—is not defensible.
I am also aware of instances where schools have enlisted the support of relevant parents, who, crucially, have legal standing to act. However, I must stress that this is anecdotal, and I do not claim expertise in this area of public law. I hope others with more specialist knowledge will be able to elaborate further. You may, of course, wish to seek formal advice from a public law expert, but rest assured that the question you raise is entirely legitimate (albeit perhaps not one typically posed on this forum), and I suspect many schools would appreciate a clear answer.
For completeness—and I am sure someone with your experience will be well aware of this—it is worth reiterating that, where special educational provision is specified in Section F of an EHCP, the local authority has a non-delegable duty to secure that provision. This is addressed in the Noddy Guide, specifically:
08.22 Is the duty on the LA to secure the provision in Section F absolute?
And parents can take action as a result of such a breach by the LA. Often in these cases, parents wrongly believe the relevant school is culpable.
Furthermore—and although you did not raise this point directly—if a child requires special educational provision that clearly exceeds the notional (up to) £6,000 budget, this is a strong indicator that an EHC needs assessment (EHCNA) should be initiated, and that the child is likely to require an EHCP. Relevant guidance is provided in the Noddy Guide here:
05.02 Does a child or young person automatically get an EHCP following a statutory assessment?
Finally, I wish you the very best in resolving this issue. While much is said today about local authorities and schools failing children—and no doubt there are cases where this is regrettably true—it is equally important to acknowledge that many professionals across LAs and schools are doing their utmost to support children and young people in exceptionally challenging circumstances. I would not be at all surprised if you were part of the latter group.
Sean Kennedy
Sean Kennedy
Talem Law
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