Purpose

Proposed decision: 
 
To approve additional funding
of £16m to enable the extension of the SEND External Tuition
Modified Dynamic Purchasing System contract to 31 August
2028.
 
Reason for the
decision
 
The SEND External Tuition - Modified Dynamic
Purchasing System (MDPS), jointly commissioned with Medway Council,
was established on 1 September 2023 to secure Tuition for children
and young people unable to attend school, including those with
Education, Health and Care Plans (EHCPs). The contract was awarded
for three years, with two optional one-year extensions to 31 August
2028.
 
The contract has performed well; however, due
to significant increases in both demand and cost, expenditure is
now forecast to reach its authorised projected spend of £15m
by the end of the initial term in August 2026, rather than August
2028 as originally anticipated. Extending the MDPS will ensure
continuity of provision, avoid unnecessary procurement costs, and
allow a new commissioning approach to be aligned with Local
Government Reorganisation (LGR). This approach will also enable the
SEND  Service to take full effect by
embedding Tuition commissioning within the Quality Assurance teams,
providing greater oversight, consistency, and safeguarding
standards. In addition, a thematic review of children and young
people not in school will help identify pathways for reintegration
into education and preparation for adulthood. To support these
service improvements, a realignment of Tuition oversight has been
proposed within the Quality Assurance teams, which will facilitate
more consistent quality assurance and governance across all Tuition
arrangements. As the extension relates to a contract of significant
value and strategic importance, a Key Decision is required.
 
It is recommended that the contract be
extended for its full term to August 2028, and that a new
procurement is undertaken.
 
Background
 
The MDPS provides a compliant and flexible
mechanism for commissioning and purchasing Tuition provision for
eligible children. It does not guarantee any work or spend to
providers and has multiple providers for the Council to source
services from, which allows KCC to secure provision in line with
its statutory duties.
 
The original Key Decision, taken in October
2022, assumed spend to remain constant and authorisation was
granted at £9m for the initial contract term and
£15m  across the full five-year
period. Spend has reached £8m in the first two years and is
forecast to reach the full £15m by August 2026. Annual spend
during the contract term reflects increase in demand and provider
costs.
 
The Children, Young People and Education
Directorate Management Team reviewed the proposal on 30 July 2025
and recommended enacting the full extensions, recognising strong
performance, effective contract management, and positive outcomes
for children.
 
Options (other
options considered but discarded)
 
Option 2 –
Re-procure immediately
Re-procurement would test the market, however
as there have been no significant new entrants to the market since
2023, and providers are able to join the framework at regular
intervals, the benefits would be limited. A new procurement would
require considerable resource, duplicate costs, and risk disruption
to provision. Any new contract would have to be revisited following
LGR, creating instability. This was discounted as the work required
to understand the changes in demand of Tuition services needs a
stable provider market to fully ascertain patterns and trends.
 
With the emerging Strategic Statement,
Reforming Kent 2025 to 2028, this meets draft Aim 3: Supporting
Residents that need help, Point 6:
 
Improve processes and outcomes for our SEND
services while tackling the unsustainable growth in demand: We will
continue to improve our SEND service, ensuring that those families
and young people who are eligible for SEND support receive it in a
timely, efficient, and professional manner. At the same time we
must also reduce the demands placed on the SEND budget given the
existential pressure it places on the wider KCC budget, including
increasingly the adult social care budget, as children with SEND
need transition to adulthood. This demand is driven by a national
crisis in SEND demand, which must be urgently addressed by the
government, given the systemic challenges it is placing not just on
children's services budgets, but on those of the NHS, schools and
home to school transport as well.
 
Financial
Implications
 
•          
Original Projected contracted spend: £15m across five years
(initial term plus extensions).
•          
Spend to date: £8m  in two years,
with full utilisation of £15m forecast by August  2026. Annual spend reflects the increase in demand
and costs.
•          
Spend for extension period September 2026 to August 2028, estimated
£16m  based on current spend with
no mitigating action or further rises in demand.
•          
Funding source: External Tuition is funded from the High Needs
Block of the Dedicated Schools Grant(DSG), a ring-fenced grant
provided by Department of Education. Whilst this is not a direct
cost to the General Fund. The Council is currently overspending on
its High Needs Block by approximately £55m-£60m per
year. The Council is part of Safety Valve Programme, a DfE
initiative to support Local Authorities with the highest deficits,
of which the council has agreed to contribute a total of £82m
between 2022-23 and 2027-28 to help reduce the accumulated deficit,
alongside an extra £140m from the DfE. The DfE funding is
contingent on the development of a plan to achieve value for money
with the existing SEN regulatory framework and to aim to reach an
in-year breakeven position. Where the continued use of external
tuition is required, it is imperative his is commissioned on a cost
effective basis. The use of the MDPS is expected to support this
aim.
•          
Risks: Continued growth in demand could place pressure on the High
Needs Block and the DSG recovery plan. Spot-purchasing outside of
the MDPS would increase costs and reduce oversight.
•          
The extension falls within the procurement regulations, as the
option was clearly advertised at the outset.
 
Legal
Implications  
 
Kent County Council has statutory duties
under:
 
•          
Education Act 1996 (Section 19)  –
to provide suitable education for children unable to attend
school.
 
•          
Children and Families Act 2014 (Sections 42 and 61)  – to secure the provision in EHCPs up to age
25 and to arrange provision outside school where attendance is
inappropriate.
 
•          
SEND Regulations 2014 – specifically The Special Educational
Needs and Disability Regulations 2014 (Regulation 51) .
 
•          
SEND Code of Practice (2015)  –
statutory guidance under Section 77
 
•          
Equality Act 2010 (Section 20)  –
to make reasonable adjustments for disabled pupils.
 
The MDPS provides a lawful route to meet these
duties. As the extensions were included in the original
procurement, they are compliant with procurement law and
KCC’s Spending the Council’s Money rules.

Decision

As Cabinet Member for Education and Skills, I
agree to:
a)   
Approve an additional £16 million funding allocation,
increasing the total contract value to £31million, to enable
the extension of the SEND External Tuition Modified Dynamic
Purchasing System (MDPS) contract to 31 August 2028
b)   
DELEGATE authority to the Corporate Director for Children, Young
People and Education to take other relevant actions, including but
not limited to finalising the terms of and entering into required
contracts or other legal agreements, as necessary to implement the
decision to extend.