Liverpool City Council (20 012 558)
Category : Children's care services > Disabled children
Decision : Upheld
Decision date : 14 Dec 2021
The Ombudsman's final decision:
Summary: Mrs X complains that the Council failed to make provision set down in her son’s Education, Health & Care Plan (EHCP). She says the Council wrongly refused to make direct payments so she could commission it herself and that the Council’s policy on direct payments is unlawful. She also says the Council wrongly refused to consider her complaint under the statutory process for complaints about children’s services. The Council is at fault and has caused injustice. It has agreed a financial remedy, service improvement and a review of the decision on direct payments.
The complaint
- The complainant, who I refer to here as Mrs X, complains that the Council:
- Failed to make the provision set down in her son’s EHCP;
- Wrongly refused to make direct payments which would allow her to commission provision herself;
- Operates an unlawful policy on direct payments which discriminates against children with certain conditions and those who are not severely disabled; and
- Failed to consider her son under the statutory children’s complaints process.
- She asks that the cost of provision she arranged for her son be reimbursed.
What I have investigated
- I have investigated the Council’s decision-making on the EHCP and direct payments, its policy on direct payments and its handling of Mrs X’s complaints.
The Ombudsman’s role and powers
- 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)
- 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)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I spoke to Mrs X and considered information provided by Mrs X and the Council. I considered relevant legislation and guidance and advice from lawyers. I have shared this draft decision with Mrs X and the Council and considered their comments before finalising my decision.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
What I found
Education, Health and Care Plans and direct payments
- Councils’ responsibilities towards children with special educational needs (SEN) are set out in the SEN and Disability Code of Practice.
- An Education, Health and Care plan (EHCP) is a legal document which describes a child or young person’s special educational needs, the support they need, and the outcomes they would like to achieve.
- The special educational provision described in an EHCP must be provided by the child or young person’s local authority. The council will usually do this by funding to a school or college to provide the necessary support. A council may also make a payment to a parent or young person so that they can organise the provision themselves. This is called a direct payment. In order for the parent or young person to request a direct payment, the council must first identify a personal budget. This is the notional amount of money needed to pay for the provision.
The law on personal budgets and direct payments
- The 2015 SEN and Disability Code of Practice, which is statutory guidance, states that councils are under a duty to offer direct payments for services which the council may provide to children with disabilities under the Children Act 1989.
- Under the Children Act, section 17(A) where a disabled child has needs which are assessed as eligible for support, they are entitled to either a service or a direct payment that is sufficient to meet their needs.
- The Children and Families Act 2014 also says a council that maintains an EHCP must prepare a personal budget for the child concerned if asked to do so by the child’s parent. A personal budget is an amount of money identified by the local authority to deliver provision where the parent or young person is involved in securing that provision. It can include funding from education, health and social care.
- Section 17(11) of the Children Act states that a child is disabled if he suffers from “mental disorder of any kind”.
The Council’s position on direct payments
- The Council told us it will only provide direct payments to children who satisfy eligibility criteria and have been assessed as having a “qualifying social care need over and above what universal and targeted services can provide”.
- It said it has a graduated approach to services as follows:
- Level 1 (universal help)
- Level 2/3 (early help)
- Level 4 – statutory intervention is required either there is a child in need or a child in need of protection as defined in the Children Act 1989 or a child has complex care needs and disabilities which require specialist services.
- It stated that only children at Level 4 are eligible for direct payments;
- It further states that statutory intervention means that there are safeguarding concerns, a child is assessed as a “child in need” or a child warrants a single assessment by the disabled children’s team, meaning they have:
- “a permanent and substantial impairment resulting in a functional disability, which affects their daily living including a severe learning need; but
- “a child will not be eligible if they are diagnosed with Attention Deficit Hyperactivity Disorder, HIV or a psychiatric illness unless they have other disabilities which meet the eligibility criteria.
- The Council also has a Guide to Direct Payments. The Guide makes reference to the Council agreeing to make payments in respect of provision specified in an EHCP. The factors listed at page 3 of the Guide reflect the statutory provisions – eg around use of resources. No reference is made in the Guide to the four levels of need referred to above in the Council’s statement to the Ombudsman.
The Statutory Children’s Complaints Procedure
- For complaints about many areas of children’s services, there is a statutory, three-stage complaints procedure local authorities must follow. Complaints about direct payments can be considered under the procedure if the complaint is about information the Council has given about direct payments, or the Council’s needs assessment.
What happened
- Mrs X’s son, B, has special educational needs and an EHCP. The Council accepts that B has a disability for the purposes of the Equality Act 2010.
- Section D of his ECHP states that he requires “short break” sessions for social and leisure activities. The EHCP specifies that a service, referred to here as Service Y, will provide the short break sessions. It says B also has an early help social worker.
- Failure to make provision
- Mrs X complains that Service Y is unsuitable for her son and that as the Council has offered no alternative, it has effectively failed to make this provision. She says her son has had to be dragged from the car to get him into the Service Y centre, which is distressing for him and his family. When the COVID-19 pandemic began Mrs X decided to stop sending B to the centre, although it continued to operate sessions for children.
- The Council’s position is that B struggled with the transition from home to the Service Y centre but settled well once inside. It has provided evidence to support that position.
- Based on the evidence provided, I do not find the Council is at fault. Although B was unwilling to enter the centre, there is no evidence that once inside the educational provision was unsuitable for him.
- and c) Failure to make direct payments and operation of an unlawful policy
- We cannot decide whether a council’s policy is unlawful, but can consider whether it takes account of relevant legislation and whether the decision it took in this case complied with the legislation and its own policy.
- Mrs X asked the Council to make direct payments so that she could commission an alternative provider herself. The Council told her B did not meet the criteria, as while it accepted he was disabled, he was not sufficiently disabled to warrant an assessment by the disabled children’s team.
- These factors are not referred to in either the Council’s Guide to Direct Payments (2015) or the Children’s Direct Payments Information Pack (2016). Neither does the Council’s position reflect the statutory regimes or considerations set out under the 2014 Act and 1989 Act. For example, there is no evidence that the Council has properly grappled with the statutory considerations which may form a legitimate basis for refusal of a request for direct payments. For example, there is no evidence it has considered whether any budget set aside for B to attend Service Y may be disaggregated so that they can form the basis of a direct payment.
- B is entitled to direct payments under the 1989 Act regime because he is disabled according to the Act’s definition.
- The Council is at fault. It should have freshly considered the request for direct payments when it amended the plan. Its decision to refuse direct payments is out of line with its own guidance documents and the statutory requirements and caused injustice to Mrs X, whose request was not properly considered. I recommend the Council reconsiders its position and reviews its decision to refuse Mrs X direct payments.
- In addition its Guide specifically relates to SEND and appears only to relate to the 2014 Act rather than to the 1989 Act – for example, reference is made in the Guide to the council agreeing to make payments in respect of provision in an EHCP. It appears that the Guide does not properly take into account the 1989 Act.
- The Council has agreed to carry out an assessment of Mrs X’s son and as part of this process will review the decision on her request for a direct payment. It also agreed to pay Mrs X £300 to remedy the injustice caused by the delay to the decision on direct payments. Mrs X asked that her expenses on alternative provision including the cost of visits to Legoland and swimming trips, be reimbursed in full. The Council declined to pay these expenses on the basis that her son had a service available to him that could meet his needs. In my view the injustice caused was mitigated by the availability of Service Y, which was suitable, and £300 is therefore an appropriate remedy.
- The Council also told me: “We agree to reconsider our position on direct payments to disabled children and review the eligibility criteria we are applying for direct payments to disabled children to ensure these are in line with the relevant legislation and our own policies on direct payments. As part of this we will review our Guide to Direct Payments to ensure we take into account the relevant provisions of the 1989 Act. We have contacted the Council for Disabled Children to seek their support in developing a best practice model of direct payments.”
d) Failure to use the statutory complaints process
- The Council decided not to handle Mrs X’s complaint under the statutory complaints process and instead applied its own two-stage process. It has accepted that it should have been handled under the statutory procedure. This is fault by the Council, which caused injustice to Mrs X. Had the three-stage process been employed it may be that Mrs X’s complaints would have been resolved earlier. The Council has agreed to pay Mrs X £200 to remedy this injustice and for her time and trouble in bringing the complaint to us.
Agreed action
- The Council has agreed that within one month of my final decision it will:
- Review its decision to refuse Mrs X direct payments;
- Pay Mrs X £300 to compensate for a delay in the decision on direct payments; and
- Pay Mrs X £200 for her time and trouble in bringing the complaint.
- Within six months of my final decision the Council will review its positions on direct payments for disabled children and review its eligibility criteria to ensure these are in line with the relevant legislation and its own policies on direct payments. It will also review its Guide to Direct Payments to ensure this takes into account the relevant provisions of the 1989 Act.
Final decision
- I have completed my investigation with a finding of fault by the Council which has caused injustice. The Council has agreed financial remedies, service improvements and a review of its decision.
Investigator's decision on behalf of the Ombudsman