Summary: There was fault by the Council in its handling of a request for direct payments, as part of an Education, Health and Care plan. This caused an injustice, because it did not make clear to the complainant what it had agreed. It also did not offer the complainant a right to request a review of its decision, which is required by the statutory guidance. The Council has agreed to offer a financial remedy for the uncertainty and frustration this has caused, and also ensure it has a mechanism to review its decisions.

The complaint

1. The complainant, to whom I will refer as Miss M, says the Council has not properly handled her request for direct payments and a personal budget, as part of her son’s Education, Health and Care plan.
2. Miss M also complains the Council did not implement any of the provision in the Education, Health and Care plan after it had been finalised.

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What I have investigated

3. I have investigated the points raised in paragraph 1. I have not investigated the point raised in paragraph 2, for reasons I will explain in the Analysis section of this statement.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

8. I reviewed Miss M’s correspondence with the Council, and her son’s Education, Health and Care plan.
9. I also shared a draft copy of this decision with each party for their comments.

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What I found

10. The following chronology includes only key events relating to Miss M’s complaint. It is not intended to give a full account of all correspondence between Miss M and the Council, which is extensive.
11. Miss M has a son of primary school age, to whom I will refer as T. T suffers from anxiety and learning difficulties.
12. In January 2018, Miss M asked the Council to assess T for an Education, Health and Care (EHC) plan. At this point, T was attending a mainstream primary school. In February, he began attending a specialist independent school instead.
13. In April, the Council agreed to create an EHC plan for T, but this was not finalised until January 2019. The delay in this process is subject to investigation by the Ombudsman in a separate complaint.
14. In October, T stopped attending the specialist school.
15. In November, Miss M requested the Council provide T with a package of Education Other Than At School (EOTAS). She also requested the Council provide a personal budget (PB) for T’s education.
16. In December, the Council provisionally agreed to provide T with EOTAS, with the aim of his returning to mainstream education in future. The Council also agreed to prepare a PB for this package. There was some discussion between Miss M and the Council whether this would be provided in the form of direct payments (DP), or as a ‘notional’ budget administered by the Council.
17. The Council’s proposed package included teaching by two teaching assistants for four hours per day, oversight by a teacher for four hours per week, some elements of Occupational Therapy and Speech and Language Therapy, and consideration of some other forms of therapy. The estimated cost of this proposed package was £30,000 per year, as detailed in the draft EHC plan which it sent to Miss M.
18. On 3 January 2019, Miss M sent the Council a series of proposed changes on the EHC plan. In a separate document, she submitted her own proposal for T’s PB. This included teaching assistants for 40 hours per week, a teacher for 25 hours per week, a computer and various ancillary costs, additional utilities costs for her home, insurance, and payment for her own hours in administering the package. The total cost of Miss M’s proposal was approximately £71,000.
19. On 11 January, the Council replied to Miss M. It said it had agreed to offer a PB, which would take the form of an account managed by a third party, a local social care charity.
20. Miss M says she made a specific request, on 22 January, for the PB to be provided as a DP via the same charity named in the Council’s email of 11 January (I have not seen this piece of correspondence).
21. On 23 January, the Council issued T’s final EHC plan. It included the Council’s proposed PB, and that this would be a notional budget.
22. Miss M replied that she would accept the EHC plan and PB as proposed, but only in the interim while she appealed to the SEND Tribunal.
23. On 13 February, the Council wrote to Miss M. It said it had reconsidered her request for a PB the previous day. It noted Miss M disagreed with the Council that a proposed location for T’s EOTAS was suitable, and that it had arranged a meeting with her on 7 February where an alternative venue, in a mainstream school but separated from other pupils, was discussed. However, Miss M had also rejected this proposal.
24. The Council said it considered it had made “best endeavours” to arrange a suitable package and PB for T. It said it recognised it had a duty to consider a request for a PB, but it could not agree with Miss M’s proposal, as it was not in accordance with the assessment of T’s needs, and was not an efficient use of the Council’s resources. The Council said a PB was “unattainable”.
25. Miss M submitted a complaint to the Council on 28 February. She complained the Council had not handled her request for DP properly, and separately that it had not handled her request for a notional PB correctly. She also alleged Council staff had “misappropriated” the PB, as equipment had never been delivered, and that “staff” had been paid to attend her home but had not arrived.
26. The Council replied formally to Miss M’s complaint on 14 June. The Council’s response covered both this complaint, and the other submitted separately the Ombudsman. I will refer here only to the elements of the Council’s response which relate to this complaint.
27. The Council set out a brief chronology about Miss M’s request for a PB. It explained the “significant disparity” between Miss M’s proposals and the Council’s own, but said it considered the Council’s proposals would be sufficient to meet T’s assessed needs.
28. The Council said its proposed budget had been set out in T’s EHC plan, but noted a total estimated budget had been omitted. It said some of the cost of some proposed elements could not be determined, although it accepted it could have provided an estimate.
29. The Council highlighted the budget in the EHC plan had been marked as a notional budget. It said, in her email of 3 January, Miss M had not specifically requested a DP, although she had subsequently asked for some elements of the budget to be delivered by a DP managed by a third party (the charity).
30. The Council also said, during its investigation, it “became apparent” its proposal in the EHC plan was also for a third party-managed budget, although it acknowledged this was not what had been written in the plan.
31. The Council accepted there was an inconsistency in the language used by its staff in discussing PBs, and the information set out in the SEND Code of Practice, and this may have caused confusion for Miss M. The Council also acknowledged there was only a limited number of staff with expertise in PBs.
32. However, the Council explained a budget for an individual EHC plan is not held separately from others. Any overspend on the budget would be reviewed and, where reasonable, authorised by the Council. It said there was no evidence T’s PB has been misappropriated.
33. The Council partially upheld Miss M’s complaint, due to the confusion it accepted it had created. The investigator made recommendations for an apology to Miss M, that the Council ensure the language used in the PB section of EHC plans was consistent with that used in the Code of Practice, and that there should be a greater understanding about PBs amongst staff.

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Legislative background

34. The rules around personal budgets are set out in the statutory guidance, the Special Educational Need and Disability (SEND) Code of Practice: 0 to 25 years.
35. A personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC plan where the parent or young person is involved in securing that provision. It may be provided in the form of direct payments to the young person or their parent, for them to commission and manage their own provision, such as a tutor.
36. Alternatively, the Code of Practice says a personal budget can be administered as a direct payment managed by a third party; a notional budget, where the Council retains control of the funds and commissions the provision itself; or a mixture of any of these mechanisms.
37. The personal budget regulations say parents and young people can request direct payments when the draft EHC plan is being prepared, reviewed or re-assessed. Councils must consider the request but may only make direct payments in respect of the special educational provision specified in an EHC plan and if the authority is satisfied that:
• the recipient will use them to secure the agreed provision in an appropriate way;
• the recipient will act in the best interests of the child when securing the proposed agreed provision;
• the direct payments will not have an adverse impact on other services which the local authority provides or arranges for children and young people with an EHC plan which the authority maintains; and
• securing the proposed agreed provision by direct payments is an efficient use of the authority’s resources.
38. Details of a proposed personal budget should be included in section J of the draft EHC plan.
39. Where a local authority decides not to make direct payments it must tell the child’s parent its decision in writing and give the reasons for its decision. Parents have a right to request a review of the decision. Councils must consider any representations made and inform the parent in writing of the outcome of the review, giving reasons.
40. Where the parent or young person disputes the provision proposed, to be paid for from a Personal Budget, they have the right to appeal to the SEND Tribunal.

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Analysis

41. Miss M complains the Council did not properly handle her requests for DPs and a PB, as part of T’s EHC plan.
42. The evidence available to me shows Miss M first requested a PB in November 2018, while T’s draft EHC plan was still being compiled. In December, after some discussion, the Council provisionally agreed to this. It sent Miss M the draft EHC plan, with a proposed PB in the section of the plan equivalent to Section J (using the terminology laid out in the Code of Practice). The Council identified its proposal as a notional budget.
43. However, the following week, the Council emailed Miss M to say it had agreed to provide a PB as an account managed by the charity. Such an arrangement is not a notional budget, but in fact a form of direct payment, as defined in the Code of Practice.
44. When the Council then issued T’s final EHC plan on 23 January, the PB was still showing as a notional budget, with no mention of the charity or a managed account.
45. And, on 13 February, the Council wrote to Miss M now saying her request for a PB was “unattainable”.
46. As highlighted by the Council’s own complaints investigator, it appears clear there was a great deal of confusion amongst staff about what forms a PB could take. In particular, the difference between the budget itself (which is, in effect, simply an amount of money) and direct payment (which is a mechanism by which the money can be used).
47. The confusion is such that it is difficult, even with hindsight, to follow what the Council had actually agreed to. In its response to my enquiries, the Council says it never agreed to DP – but, as I have said, in its email of 11 January, it said it had agreed to a third party-managed account. This is a form of DP. Given the email even specifies the third party which would manage the account, this appears to be a grave misunderstanding.
48. To make matters worse, the Council’s letter of 13 February says Miss M’s request for a PB is ‘unattainable’. But what this appears to mean is that the Council did not agree to her proposed budget of approximately £70,000 per year, not simply that it could not provide a budget at all. This letter does not explain (as it now appears it was intended to) that the Council was in fact refusing Miss M’s request for DP, nor how Miss M could request a formal review of this decision, as required by the Code of Practice.
49. So, taking this together, there is very clear fault here. The confusion this has evidently caused Miss M is an injustice. That the Council did not properly offer Miss M a right of review of her DP request is also an injustice. I will return to these points presently.
50. Despite this, I do not consider there is any evidence of T’s budget being “misappropriated”, the simple reason for this being there was never a separate pot of money created for his EHC plan. As the Council’s investigator explained, with a notional budget, the funds are held centrally by the Council as part of its overall SEND budget, so there is no individual ‘account’ from which money can be taken, legitimately or otherwise. Nor was a DP account ever created, and so, again, there was no means by which money could be taken from such an account.
51. It may be Miss M perceives the Council’s failure to agree her proposed budget is a form of misappropriation. However, this is essentially a dispute about the level of provision for T, rather than about the budget as a distinct matter. The Council was entitled to refuse her request for a £70,000 budget, and the fact it did does not mean the request was mishandled, or that money was misappropriated from T’s budget.
52. It is not for the Ombudsman to adjudicate on what was the appropriate level of provision for T, or whether the proposed budget was enough to provide this. This is, instead, a matter for the Tribunal. And I understand Miss M did successfully appeal the provision set out in the EHC plan, subsequent to the events described here, so I can make no more comment on this.
53. Miss M has also complained the Council did not actually implement the provision contained within T’s EHC plan, even disregarding her dispute with it over the level of provision.
54. I made some enquiries with the Council on this point. From its response, I can see there was a further lengthy disagreement between Miss M and the Council after the publication of T’s EHC plan, including about the proposed venue for his teaching, and the suitability of teaching staff. The Council says it has implemented everything within T’s EHC plan, although it appears there was some delay in this.
55. Either way, upon review, I am now satisfied this is a separate complaint. Miss M’s complaint to the Council in February 2019 did not cover these elements, for the simple reason they had not happened yet; nor did the Council’s response of June 2019 discuss them. I cannot, therefore, include these points in my investigation here, and so I have discontinued my investigation of this element of the complaint.
56. Further to this, subsequent to the events of this complaint, Miss M has successfully appealed some elements of the provision in T’s EHC plan to the Tribunal. This means they are no longer eligible for investigation by the Ombudsman anyway. I understand Miss M is also now seeking to take legal action against the Council for its alleged failure to implement the provision, and if she pursues this, this would also place the matter outside the Ombudsman’s jurisdiction.
57. Although Miss M may choose to pursue another complaint with the Ombudsman about this, having complained to the Council first, we would first need to carefully consider whether any part of it remained in jurisdiction.

Remedy

58. In its response to Miss M’s complaint, the Council made several recommendations for improvements to its service. In my enquiries to the Council, I asked it whether it had implemented them.
59. In response, the Council said it was in the process of implementing a simpler, interactive case management system – an ‘EHC Hub’. It said it had consulted with parents on this and had received their support. As part of this system, the Council said the personal budget section of EHC plans will reflect the language used in the Code of Practice.
60. The Council said it EHC plan co-ordinators are now fully involved in the development of personal budgets, to ensure they have a greater understanding of the process. It also said it had provided a briefing to its entire SEN Team about PBs and the mechanisms by which they can operate.
61. I am satisfied these steps will help prevent a repeat of the confusion which arose in this case. I remain concerned, however, there does not appear to be any recognition in the Council’s response (either to Miss M, or to me) that the Code of Practice requires it to offer a formal route of review when refusing a request for direct payment.
62. As I have said, it appears the Council’s letter of 13 February was intended to serve as its refusal of Miss M’s request for DP, although it does not use this wording. By rights, therefore, it should have informed of her right to request a formal review, and how to do this.
63. The Council should also, therefore, ensure its staff are aware of this review right, and that its refusal letters explain it.
64. This brings me to the matter of personal remedies for Miss M.
65. On the balance of probabilities, I consider it more likely than not the Council did not intend to agree to Miss M’s request for DP. However, Miss M did have the right request a review of this decision, as I have said, but the Council does not seem to have offered this.
66. I cannot say what the outcome of such a review would have been. But it is clear there is a very serious disagreement between Miss M and the Council about T’s EHC plan, how much money it should cost to implement, and whether the provision is adequate. So I cannot say, even on the balance of probabilities, the Council was likely to agree to DP upon review.
67. The injustice to Miss M is therefore not the loss of DP, but the uncertainty and frustration caused by the Council’s fault here.
68. The Ombudsman’s general principle with remedies is to restore the complainant to the position they would have been in, had there been no fault. Unfortunately, in cases such as this, this is not possible, although I would expect the Council to ensure any further request for DP from Miss M is handled properly.
69. Where it is not possible to restore a complainant to the correct position, the Ombudsman will generally instead recommend a small financial remedy. This is not intended as a form of compensation, but simply a way of formally recognising the injustice a complainant has suffered. I make such a recommendation here.

Agreed action

70. Within one month of the date of my final decision, the Council has agreed to offer Miss £300, to recognise the frustration and uncertainty caused by its mishandling of her request for direct payments.
71. And, within three months of the date of my final decision, the Council has agreed to ensure:

• it establishes a mechanism to formally review a refusal to agree direct payments, where requested, in line with the Code of Practice;
• that relevant staff are aware of this review mechanism; and
• that it updates any relevant standard letters, or similar literature, to explain the review mechanism to parents or young people who have applied, or may apply, for direct payments.

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Final decision

72. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman