Does having an EHCP mean we can avoid paying VAT on school fees?
One of the key changes to education proposed by the new Labour government is the introduction of VAT on independent school fees from January 2025. For some families, this may mean being unable to maintain their child’s school place, where others may be looking for ways to offset or avoid paying the VAT.
The content here is based on the experience of the author as a SENCo in both state and independent schools, and the information available at the time of writing (August 2024). It does not include details relating to Section 41 schools, and funding may differ from authority to authority.
Many of the reports available online at the moment indicate that:
“The Labour administration has previously confirmed that the changes to the VAT treatment of private school fees will not apply to children and young people with an EHCP. Fees paid for educating pupils with an EHCP will therefore remain exempt from VAT.”
From schoolsweek.co.uk
Super! This may leave parents wondering if their child is eligible for an EHCP, or if they will be exempt from VAT on their fees if they have one. It could mean a mad rush of applications for EHCPs in an already struggling SEND system. Unfortunately for parents, this only applies to the funding that comes from the Local Authority (LA) so it will depend on who pays the standard fees for a child’s place. If the standard fees are paid for by the LA, the LA will be able to reclaim the VAT charged by the school. If fees are paid by parents, they remain eligible for VAT to be charged.
From https://assets.publishing.service.gov.uk/media/66a7a1bdce1fd0da7b592eb6/Technical_Note_-_DIGITAL.pdf accessed 08.08.24.
The legal time frame for Local Authorities to provide an EHCP is 20 weeks from the initial application but many councils cannot meet demand and are going over the 20 weeks. Some are way over, and it can take over a year or more in some cases to get to a final plan. One of the big delays is a lack of Educational Psychologists to provide the assessments prior to a plan being issued.
What is an EHCP?
An Education, Health and Care Plan is a legal document that describes a child’s special educational needs and disabilities, and the provision required to meet those needs. It is written by the Local Authority, following assessments by an Educational Psychologist and other professionals involved in a child’s development and care, and is reviewed at least annually by the school with parents and others. Usually, an EHCP carries an element of funding to provide support but sometimes they don’t.
Funding
School funding typically looks like this:
| State sector | Independent sector |
Element 1 | The amount of funding provided for every pupil in the school by the Local Authority. This is called the AWPU. | School fees charged for each pupil’s place. These fees are typically paid for by parents. In very rare cases, fees are paid by the LA if the child attends the only suitable placement. |
Element 2 | ‘Notional’ funding for children on the SEND register and receiving additional support in school in a wide range of ways. This is not allocated per pupil but the school is expected (by the LA) to use £6000 towards support before applying for an EHCP. | Before an EHCP: additional support provided by the school through small groups and some 1:1 support, access to apps or resources to support individual needs. Some independent schools apply an additional charge for support that is above their ordinarily available offer. With an EHCP: some Local Authorities pay the £6000 directly to the school, some may include it in their banding at Element 3, and some may not pay it at all. |
Element 3 | Top-up funding, if granted for those pupils with an EHCP, often based on each Local Authority’s banding allocation system. This typically starts from around £1200. | Top-up funding, if granted for those pupils with an EHCP, often based on each Local Authority’s banding allocation system. This typically starts from around £1200. |
There are occasions where the Element 1 funding is provided by the Local Authority when an independent school is deemed to be the ONLY school that can meet a child’s learning needs. If a child is already attending an independent school when they are granted an EHCP, it is unlikely that the Local Authority will take over the payment of standard fees. This usually continues to be the responsibility of the parents. The Local Authority would usually say that needs could be met in a state setting where parents would not have to pay fees.
Will my child qualify for an EHCP?
In an ideal world, additional support would be provided for all children when they need it. In reality, the funding available is so lacking that this cannot be provided to the extent that is required.
The SEND Code of Practice states that:
9.14 In considering whether an EHC needs assessment is necessary, the local authority should consider whether there is evidence that despite the early years provider, school or post-16 institution having taken relevant and purposeful action to identify, assess and meet the special educational needs of the child or young person, the child or young person has not made expected progress.
SEND Code of Practice 2015, page 145.
The Children and Families Act 2014 sets out a legal test which says:
“…a Local Authority must carry out an assessment where
· your child or young person has or may have special educational needs (SEN); and
· they may need special educational provision to be made through an EHC plan.”
Children and Families Act 2014, section 36(8).
These are the written rules. It’s also worth bearing in mind that each Local Authority will apply its own unwritten rules. A guide seems to be:
· a child Is working at least three years below their peers academically,
· a child is having toileting issues or needs physical support,
· a child has significant behavioural issues (e.g. to the extent of throwing chairs or endangering others),
· the school can prove at least two rounds of assess-plan-do-review (also known as the graduated approach).
It’s worth having a conversation with your school SENCo to see if they feel your child would meet the criteria in your Local Authority and if the evidence to support an application is available. Your child does not necessarily need to have a diagnosis or label but they do need to be in a position where the school is not able to meet their needs using the resources available to them, and this can be evidenced.
If your child’s needs are being met in school, and they are making progress, it is very unlikely that they would be considered for an EHCP. These plans are for children with very significant needs who cannot make progress within the school’s ordinarily available provision.
Also bear in mind that if you live in one area, and your children go to school in another, the application for an EHCP needs to be sent to the LA for where you live. If funding is provided, this can be paid from one LA to another, if the school placement is agreed to be the closest that is suitable. You could be offered a place at your catchment school or a school that is closer to home.
How do we apply for an EHCP?
As mentioned above, the process is long. Once the application is ready to send, the timeframe set out in the Code of Practice is 20 weeks, but most go beyond this. What you will be applying for is a ‘needs assessment,’ also known as ‘assessment of need,’ and sometimes referred to as one of the terms below, amongst others:
EHCAR: Education, Health and Care Plan Assessment Request (e.g. North Yorkshire)
RSA: Request for Statutory Assessment (e.g. York)
EHCNA: Education, Health and Care Needs Assessment
You can apply for an EHCP yourself as a parent or you can work with school and submit a joint application. If you apply without involving school, the LA will write to the school once they process your application, and will give the school two weeks to return all the information they need. Watch out, though - if you do this in a long school holiday or at a particularly busy time of year, the school may not be able to send anything back to the LA in time. If your school has a new SENCo, they may also need more time to gather information and to get to know your child, so allow for this to get the best possible application.
Working with the school to create the application may take longer, and you may need to wait for the SENCo to have the capacity to dedicate time to completing the form. However, it is likely that the SENCo is experienced in doing these, and will be able to include every possible aspect to paint a clearer picture of your child’s needs. Ask to be involved throughout the process, starting with your views, and the views of your child, and taking time to think of additional things to add before submitting the application.
Each LA has their own form for you/school to complete but if you read the information on the IPSEA website, this is not a legal requirement and you can apply for the assessment with a template of a letter. Be careful here: some LAs may kick back and ask for their form to be completed. Even if they don’t, in gathering information towards the assessment, they will need you to provide everything contained in the form.
Here's the timeframe for what comes next:
1 – 6 weeks: the LA will consider the application and decide if they agree to make an assessment. You will receive a ‘yes to assess’ or ‘decision to assess,’ or they will decline the application and give you two weeks to appeal the decision.
6 – 12 weeks: the LA will gather assessments from professionals involved in your child’s care such as a Speech and Language Therapist or Paediatrician, including appointing an Educational Psychologist to make an assessment. (This is often where there is a delay).
13 – 16 weeks: if the LA has decided to issue a plan, they must have the draft ready by week 14 and parents have 15 days to respond and request changes.
17 – 20 weeks: the LA issues a final plan and names the school place that has been agreed.
It’s important to note that schools are consulted to consider if they can meet a child’s needs but even if they say they can’t, the LA may offer the same school as a placement if they feel this is the best available and most efficient option.
There’s definitely a lot of negativity throughout this information but it’s not all doom and gloom. Many children are struggling in their education and will benefit from an EHCP to help them to make the progress they deserve. If you feel that your child needs more support at school, your first point of contact, according to the SEND Code of Practice, should always be your child’s teacher. You may then contact the school SENCo for advice and support.
What do we need to do next?
If you feel that your child may meet the criteria for an EHCP and would like to talk this through with an independent and impartial SENCo, please make contact with Rachel at wilburandflops@gmail.com for a video or telephone consultation.
There’s more information here: https://rachmackay.wixsite.com/wilburandflops .
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