Inter-authority recoupment

March 13th, 2013

Following on from Paul‘s post about hot education topics in February, the Inter-authority Recoupment (England) Regulations 2013 have now been made and will come into force on 1 April 2013.

These regulations are about whether one local authority should contribute towards the costs of a SEN statement for which another local authority has responsibility. It is worth noting that they do not affect which local authority is responsible for the statement, which continues to depend on which area the child is in (see section 323 of the Education Act 1996 and the Guidance on Looked After Children with Special Educational Needs placed out-of-authority). Where a local authority is responsible for a statement, that responsibility can only transfer to another local authority if the child has moved from the area of the original local authority to the area of the new local authority (see paragraph 7 of Schedule 27 to the 1996 Act and regulation 23 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001).

Recoupment is a separate issue. Until the new regulations come into force, the current position is that the Education (Inter-authority Recoupment) Regulations 1994 provide for a local authority which is responsible for a SEN statement to recoup the costs of that statement from another local authority to which the child belongs. The Education (Areas to which Pupils and Students Belong) Regulations 1996 set out the test for deciding to which local authority a child belongs.

That scheme will change from 1 April 2013 in England. The new regulations will amend the Education (Inter-authority Recoupment) Regulations 1994 so that those Regulations only apply to recoupment where the home authority is in Wales (with one exception). As the covering letter for the consultation on the draft regulations explained:

In future schools that provide for pupils with a statement of SEN and certain other high cost needs will get base funding from their maintaining local authority, or if they are not a maintained school from the Education Funding Agency (EFA), while funding above the base funding level (“top-up funding”) will pass directly between the local authority where the pupil is resident and the school.  We have made adjustments between the baselines of authorities in England in order to make this new system cost neutral for authorities. …

The proposed regulations will continue to require recoupment between English local authorities in the case of looked after children …

We are also proposing that the recoupment arrangements should remain in place for authorities in England in so far as they relate to pupils from England educated in Wales, and pupils from Wales educated in England. …”

Hopefully the changes will simplify the current system, which relies on local authorities agreeing between themselves on the sum to be recouped and with disputes resolved by the Secretary of State. However, no doubt there will be other  issues arising from the new funding regime to keep the lawyers busy.

Rachel Kamm

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