Summary: We will not investigate this complaint about the withdrawal of a payment for children’s leisure activities done without an assessment. We could not add to the remedy for fault provided by the Council or achieve the remedy Ms X wants. Lawfulness is a matter for a court rather than the Ombudsman.

The complaint

1. Ms X said the Council wrongly stopped a payment for leisure activities for her children that were included in social care assessments and in Section H of the children’s Education Health and Care (EHC) Plans. She said it did not re-assess before doing this, and its actions were unlawful and discriminatory. She said it was operating a blanket policy of only funding activities for looked-after children.
2. She said she wanted compensation for time and trouble, delay, and loss of provision for her children. She wanted the leisure activities re-instated and the payments continued.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.
7. I considered Ms X’s response to a draft of this decision.

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My assessment

8. Councils may withdraw social provision and any payments for that provision if they first re-assess and the assessment finds the provision is no longer needed. Although Ms X takes the view the Council could not withdraw social care provision specified in Section H of an Education Health and Care (EHC) Plan, that provision is subject to re-assessment and can be withdrawn. The complaint correspondence Ms X sent us shows the Council accepted it withdrew the payments for leisure activities for her children without re-assessing their needs. That was fault. It also shows the Council also incorrectly told Ms X that she could use disability living allowance (DLA) payments to fund the leisure activities when DLA payments are not for this purpose. The Council accepted this was fault. It agreed to pay Ms X the sum that would have been due if it is had acted without fault. This would have meant maintaining the payments until it carried out any re-assessment that found they were no longer needed. It also agreed to pay Ms X a sum for her time and trouble in having to pursue the matter. These two payments totalled £540. They are like the recommendations we would have made had we investigated and found the same fault.
9. The complaint correspondence shows the Council confirmed it was not its policy to only make leisure payments to children in its care. It stated that an earlier letter was not worded well and could be misread. Ms X remains of thee view there was such a policy. Given the confirmation by the Council, and the reasons it gave for ending the payments after carrying out a fresh assessment in August 2022, we would be unlikely to find it at fault for fettering its discretion by operating a blanket policy.
10. As stated above, the Council re-assessed the children’s needs in August 2022. While Ms X disagrees with the outcome of the assessment, we can only take a view where the decision was not properly reached. The correspondence shows the Council gave a clear reason for its decision the children no longer needed the separate payment. This was that the payments for leisure activities had been needed because the children were not in school, and that they had since returned to school, cancelling the need for the payments. It is not for me to judge the efficacy of provision in school to work out if the decision was the best one. That is a matter of professional judgement by a social worker, not fault, even if Ms X does not accept that. Investigation by us would be unlikely to achieve the remainder of the outcome Ms X is seeking, which would be the restoration of the leisure activities and the payments for them. Nor could be make a finding of unlawfulness, which would be a matter for a court.

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Final decision

11. We will not investigate this complaint. This is because:

• This would be unlikely to add to the Council’s investigation;
• We could not achieve the outcome Ms X is seeking; and
• Lawfulness is a matter where Ms X has a right to go to court it would be reasonable to use because only a court can decide if an action is lawful.

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Investigator's decision on behalf of the Ombudsman