Summary: Ms P complained the Council unfairly made changes to a short breaks plan which had been working well for her son. We found the Council at fault for a delay in carrying out its short breaks plan review, and in failing to follow the statutory complaints process. The Council has agreed to make a symbolic payment to Ms P in acknowledgement of the injustice caused.

The complaint

1. Ms P is complaining the Council has not followed its policy when it reviewed the short breaks direct payment package her son (Q) received. Ms P says the Council carried out a short breaks review in May 2023, and agreed with her that the existing plan was working well. Ms P complains the Council then decided Q’s education budget should cover some items in the plan. Ms P also complains that the Council did not tell he this at the review meeting.
2. Ms P also questions whether the Council should have carried out the short breaks plan annual review with its EHC plan annual review.
3. Ms P is seeking an acknowledgement the Council has not dealt with her matter as it should have.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
8. If we are satisfied with an organisation’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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

10. I have considered information provided by the Council and Ms P, alongside the relevant law and guidance.
11. Ms P and the Council commented on a draft decision before this final decision was made.

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What I found

Law, guidance and the Council’s policy

The Children Act 1989 and The Children Act 1989 Representations Procedure (England) Regulations 2006

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 

13. The 1989 Act imposes a duty on councils to safeguard and promote the welfare of children within its area, who are in need, and promote their upbringing by their families, by providing a range and level of services appropriate to those children’s needs.
14. The Children Act 1989 (Schedule 2 paragraph 96)(1)(c)) and Breaks for Carers of Disabled Children Regulations 2011 requires councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. These services must include a range of daytime care, overnight care and leisure activities. This range of services must be set out in a ‘short breaks statement’ and include details of any eligibility criteria.
15. The 1989 Act established the requirement for councils to have a formal procedure to deal with complaints about specified local authority functions. We call this the ‘statutory complaints procedure’. The Act states that If the Council provides its services to a relevant child or young person in the discharge of its functions under Part 3 of the Act, any complaints should be considered in line with the children’s statutory complaint procedure, unless they are excluded under the guidance.

The Council’s Policy and guidance for Special Educational Needs Personal Budgets – Children and Families

16. Children in receipt of Continuing Care have a right to have a Personal Health Budget. Children’s Continuing Care applies when a child under the age of 18 has health needs that cannot be met by universal or specialist services alone.
17. Where an individual with an EHC plan is under 18 years old and is eligible for children’s continuing care, the health component of the EHC personal budget will be calculated upon the children’s continuing care, clinical knowledge and the use of an approved Resource Allocation System (RAS).

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What happened

18. Q is a child under the age of 18, who has an EHC plan and is educated at home (EOTAS).
19. In October 2021, the Council set up a short breaks package which was funded by direct payments to cover activities for Q. The total package amounted to almost £5,000. No direct payment agreement has been provided.
20. The annual review of the package took place in May 2023. The Council’s social worker who met with Ms P agreed with her that the package was working well for Q. However, the assessment also records that Q’s resource allocation system (RAS) score was 113 which amounts to £1500 of funding.
21. The Social Worker’s manager considered the review notes and took the view the Council’s panel may reduce the provision. Ms P was invited to discuss the review, but she chose not to do this. A month later, at the panel meeting, the Council reduced the funding to £1500, in line with the RAS score. The Council did not however, provide Ms P with a direct payment plan.
22. The Council explained to Ms P that it felt some of the activities which had previously been funded under social care should be considered by the education department when they reviewed Q’s education, health and care (EHC) plan, in the following October.
23. To ensure that Q was not without provision in the meantime, the Council continued its previous higher sum of funding until after the EHC plan review had taken place.
24. The EHC plan does not provide enough funding to cover the reduction in the direct payments the Council is providing.
25. Ms P is unhappy with the Council’s reduced funding as she says her son has been greatly impacted as he can no longer benefit from all the activities which were previously funded. She is also impacted as some funding had allowed her some respite as a carer, which is no longer possible on the smaller budget.
26. Although Ms P complained to the Council about the short breaks plan review.

Analysis and Findings

27. The annual review of the short breaks package should have taken place in or before October 2022, but did not happen until May 2023. This delay amounts to fault. The Council has acknowledged this delay and apologised.
28. The Council is entitled to reduce the direct payments or any other provision if there are reasons for doing so. I have considered the process the Council has followed to reach its view, and there is no fault in that process.
29. Although Ms P has explained that her son’s needs have not decreased since the first short breaks plan was set up, circumstances have changed since the first plan, as it was put in place during Covid.
30. The Council explained its reasoning that some provision could be considered under the education provision, when Q’s EHC plan was reviewed. The Council is entitled to make this decision, regardless of whether the education department went on to match the sums which were reduced.
31. The content of the EHC plan can be appealed, so this office will not consider this.
32. As we can see the RAS form was completed and the subsequent reduction was in line with the assessed need, this is a merits decision which the Council can make.
33. Ms P has made a statutory complaint about a related child in need assessment. That process has run alongside her complaint to this office. Ms P has been put to avoidable time and trouble as a result.

Remedy

34. Ms P has made a complaint through the statutory complaints process about matters which are closely linked to this investigation. As part of that process the Council offered Ms P a new RAS assessment which would include a parent/carer assessment. This would allow Ms P to put forward any arguments for an increase in the RAS score, which could increase the direct payment provision.
35. The Council has made decisions it is entitled to make. However, it delayed in carrying out a review of the short breaks plan. Ms P is also correct in saying the Council should have completed this review alongside its EHC plan review. This could have avoided several months’ during which Ms P did not know whether or not the provision would be reduced or not. Although the Council ensured the reduction did not take place until the EHC plan had also been reviewed, this has caused Ms P avoidable confusion and worry.
36. It also seems the Council did not manage Ms P’s expectations during the May review. Ms P was told the social worker recommended the plan remain unchanged. The social worker did not tell her the plan was generous when compared to the RAS score and may well be reduced. It seems the social worker’s manager was able to pick up on this and tried to communicate this with Ms P before the panel review took place. However, the social worker did not manage her expectations about this during the review meeting.
37. The Council has not provided a copy of any direct payment agreement with Ms P. If there were such an agreement, it would have included details of the terms which affected the agreement. Ms P has voiced worry about what she can spend the direct payments on, especially about what the Council classes as social care rather than education. A clear direct payment agreement would have avoided some of the confusion and worry Ms P has experienced.
38. Ms P also raised a child in need complaint with the Council, which has been considered under its statutory complaints process. Although the issues considered are separate to this complaint, the Council made recommendations for service improvements which will address the faults identified by this investigation. I have not repeated those recommendations here.

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Agreed action

39. The Council has agreed to, within one month:

• Apologise to Ms P in accordance with our guidance on apologies;
• Pay £250 to Ms P in acknowledgement of the injustice caused by the faults identified.

40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. The investigation is concluded on the basis the Council is at fault and has caused Ms P an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman