Fair and sustainable financial settlements involving SEND children
Navigating separation or divorce with a SEND child? LGFL Director Rita Gupta discusses how to ensure a fair and lasting financial settlement that provides for their future care and needs.
Fair and sustainable financial settlements involving SEND children
In this second article in the series, LGFL Director Rita Gupta looks at the financial and family lifestyle implications of separation and divorce involving SEND children. She explores how these must be factored into a fair and long- lasting financial settlement that works for all the family.
Caring for a SEND child in England and Wales is rarely straightforward, especially with the additional financial, emotional and bureaucratic hoops their parents have to jump through to get the support they need. When parents get divorced or separate, these challenges don’t change or magically disappear. Neither do they end when the child reaches the age of 18. So divorce financial settlements involving SEND children must take major financial challenges into account for the child’s future care and provision.
It’s complicated
Any comprehensive divorce financial settlement would aim to cover provision for any children. These provisions are more complex, more involved and more challenging for parents of SEND children. In my experience as a family lawyer advising clients nationally, I have found that almost every aspect of SEND childcare is more expensive, more complicated and (usually) grossly underestimated by many lawyers and solicitors when drawing up draft agreements.
Key cost areas for settlements
As part of LGFL’s national specialism in cases involving SEND children, we are able to ensure key areas are covered and properly costed. These include:
Location of the family home/s
Care provision for SEND children, including the initial diagnosis and subsequent Education, Health and Care Plan (EHCP), is arranged through their local council. That provision may include a place at a nearby specialist school, access to specialist health care services, carer support and much more. Should the divorce settlement involve changes to the location of the family home where a SEND child lives, this can affect these arrangements. This is particularly pertinent in our area, where the three counties of Berkshire, Hampshire and Surrey meet.
Family home adaptations and suitability
When a family includes a SEND child, their family home is more than just a major financial asset. The house is often adapted to meet specific care needs, and may have specialist equipment installed.
Most importantly, it is a safe and secure place for SEND children who often find change and lifestyle inconsistency difficult to cope with. Divorce financial settlements therefore need to take into consideration the specialist nature and emotional value of a family home, alongside its resale value. Equally, if one parent moves out and has shared child living arrangements, they may not be able to replicate the same level of accommodation and/or specialist provision at their new home due to limited assets available.
Reduced earning capacity
In SEND households, one parent often takes on the role of the child’s primary carer, significantly impacting their ability to work. They may need to leave their job or reduce their hours to manage appointments, school runs, therapy sessions, etc. They can often also be ‘on call’ during the school day for children with complex needs. Again, any settlement needs to recognise the imbalance between parents’ current and future income and earnings potential. Many SEND children cannot use wrap around care, as it is simply too distressing for them with heightened sensory issues. Equally, schools may not be able to offer appropriate staffing.
Increased household costs
Parents of SEND children inevitably have significantly higher everyday expenses to cover. Their child may require specialised diets, medical equipment (not always fully funded), and important therapies not covered by statutory services. The household will often have significantly above average utility bills for additional heating and/or electricity use.
Education and private school fees
Many parents we represent want to ensure their children, SEND or otherwise, will continue to be educated at their private school after a divorce. In the case of SEND children, the costs of independent specialist school placements can be extremely high. While local authorities will usually contribute, there will still be ongoing financial implications for parents such as a shortfall in funding, especially if parents seek provision outside of what the local authority initially offers. They may have to fund additional support too.
Out of hours and school holidays
EHCPs only cover school hours activities, and not out-of-hours or holiday activities that are so important for a SEND child’s social life and development. Specialist workshops and care often come with a higher price tag and/or are limited in availability. Parents may need to adjust their working hours to meet the gap during holidays, further increasing the overall costs.
Balancing caregiving with family life
The demands of caring for a child with SEND can be all-consuming, making it difficult for parents to give other children their full love and attention, maintain their own well-being, and pursue personal interests. Financial settlements should include provision for both parents and other children to live their own lives too!
Disability benefits
With the government making it very clear that they wish to reduce their spending on disability budgets, this is another factor for clients to consider carefully when they reach their financial settlements. Being overly reliant on benefits is generally not a sound plan.
Education and the SEND child: EHCPs
Key to the care of school age SEND children is getting a diagnosis and then securing an Education, Health and Care Plan (EHCP) from the local authority.
As Wokingham Council explains:
“An Education, Health and Care Plan (EHCP) is a legal document that setsout a child or young person's special educational, health and social care needs and how those needs should be met. It focuses on what is important to the child or young person and sets outcomes they want to achieve.” (3)
In my previous article I highlighted the delays in getting a diagnosis, but all too often there are also delays in securing that all-important EHCP from the local council.
In their report “Fighting for your SEND child: the hidden costs” (1) the charity Support SEND Kids surveyed parents with the aim of uncovering the impact that lack of support from employers, schools, local authorities (LAs) have on the working patterns of SEND parents.
Their findings unearthed many more hidden costs, and was summarised in one single response from a parent listing the hurdles they had faced:
“Time, energy, access to information to equip ourselves to take on the LA. The emotional and mental cost of having to fight on behalf of our children for everything. Impact on all our other relationships, missed career progression opportunities, increased costs when we have to bridge the gap left in LA provision for our children out of school or in school part time. Paying for private reports, private professional support, funding provision that should be delivered through the EHCP but isn’t.” (1)
Frustrated by either the lack of progress, or the unsatisfactory result of EHCP assessments, some parents have resorted to commissioning private assessments, at considerable cost. Should they take their local authority to a tribunal, the mental and financial costs can be considerable.
According to one parent quoted in the Support SEND Kids report:
“As parents of children with SEND, EVERYTHING is a battle. We already have a harder parenting job, and we are exhausted and don't have the time, energy or expertise to take on local authorities to advocate for our children and fight to get what they are entitled to by law. But if we don't, nothing happens, and our children suffer.”
Inevitably, these costs, whether incurred or approaching, need to be considered in any financial settlement.
Divorce financial settlements that work for everyone
LGFL have a formidable reputation for helping clients with fair, balanced and sustainable financial settlements after divorce or separation. Our experience in divorce and separation involving SEND children gives us the expertise to ensure these financial settlements are tailored to the needs and financial capabilities of those involved, in order to provide the best for all children, SEND or not, into the future.
If you’d like to discuss your situation in complete confidence, please contact us. If you are on the spectrum yourself, our awareness of SEN and autism ensures we can help you access the legal advice and strategies you need. Your reduced fee initial consultation with LGFL gives you a full 60 minutes with me or fellow Director Anne Leiper Director, for expert advice and an empathetic, pragmatic approach.
About the author
Rita Gupta is Co-founder and Managing Director of family law firm LGFL Ltd, serving family law for clients in the Reading and Thames Valley area, across the UK and for international clients involved in UK divorce cases. She has featured as a family law expert on national TV and radio, including BBC Radio 5 Live with Nicky Campbell, LBC, GB News with Darren McCaffrey and local TV and radio.