Summary: There was fault by the Council because it failed to tell Mr X of his right to request a review of the decision not to give his son Y a personal budget/direct payment and took too long to complete the review. The Council should also have arranged speech and language therapy for Y in the Autumn term of 2020 and was at fault by not doing so. It has since agreed to reimburse Mr X for the therapy he has paid for, which is a partial remedy when completed. The Council will apologise, make the refund and also make Mr X a symbolic payment to reflect his time and trouble and inconvenience and distress.

The complaint

1. Mr X complains the Royal Borough of Greenwich (the Council) refused to provide a personal budget/direct payment for his son Y’s speech and language therapy (SLT). He says this caused avoidable inconvenience and time and trouble and a financial loss because he has been paying for Y’s SLT himself.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I considered Mr X’s complaint, the Council’s responses and documents described later in this statement. I discussed the complaint with Mr X.
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

6. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to ensure special educational provision in an EHC plan is made available. (Section 42, Children and Families Act 214)
7. A special educational needs (SEN) personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC Plan. The council can identify provision which can be made via a direct payment (a monetary payment).
8. The Special Educational Needs (Personal Budget) Regulations 2014 say:
• A child’s parents may ask for a personal budget (including a direct payment) when an EHC plan is being reviewed and the council must consider that request (Regulation 4)
• Where a council refuses a request for a direct payment, it must tell the parent in writing, give reasons for the refusal and setting out the right to request a review of the decision (Regulation 7)
• A council may only make a direct payment if it is satisfied that the direct payment will not have an adverse impact on other services which the council provides or arranges for children with an EHC plan which the council maintains (Regulation 6)
9. The SEN Code of Practice is statutory guidance councils must have regard to. It says details of the proposed personal budget should be included in section J of the EHC plan. (Paragraph 9.103)

What happened

10. Y has an EHC plan. Mr X asked for a personal budget for SLT at the review of Y’s EHC plan in July 2019. The Council refused his request in September 2019 saying Y’s school received funding from the NHS for SLT and so was responsible for providing the SLT set out in Y’s EHC plan. The school arranged some hours of SLT for Y during 2020.
11. Since the review in 2019, Mr X appealed Y’s EHC plan to the SEND tribunal which ordered additional hours of SLT in July 2020.
12. Mr X complained to the Council about its refusal to provide a personal budget. The Council’s final response in September 2020 said:
• Since the original request for a personal budget, the tribunal had ordered additional SLT provision, significantly greater than the provision in place at the time of the request.
• In light of the increase, there was now a need to commission SLT separately.
• It considered his request for a personal budget and explained why it was refusing it, but accepted it should have advised Mr X of his right to ask for a review of the decision.
• It would review the decision about a personal budget for Y within 10 days.
13. Mr X complained to us, having not had a response from the Council about Y’s personal budget.
14. The Council emailed Mr X in December 2020 to say it had agreed a personal budget for Y. It also agreed to reimburse Mr Y for the private SLT he had already set up and paid for.
15. The Council told me:
• It sought to commission SLT for Y from an NHS Trust in July 2020, but there was a delay and the local NHS team did not have capacity to take on Y’s case
• The Council was told Y’s school would be expected to meet his needs
• It accepted there was a drift between September and December 2020 with no provision secured
• It has agreed a personal budget and direct payment for Y’s SLT of £4800. It was sorry for the delay
• It would make Mr Y payments of £150 for his time and trouble and £150 for the avoidable distress.

Was there fault and if so, did this cause injustice requiring a remedy?

16. The Council failed to advise Mr X of his right to request a review of the decision not to grant Y a personal budget/direct payment in 2019. This was not in line with Regulation 7 of the Special Educational Needs (Personal Budget) Regulations 2014 and was fault. And there was a further delay of about two months once the Council had told Mr X it would take 10 days complete the review. The delay was not in line with our expected administrative standards and was a further fault.
17. The Council had a statutory duty to arrange the provision in Y’s EHC plan which included SLT. As there was no personal budget or direct payment for Y’s SLT in place, the Council should have commissioned SLT for Y during the Autumn term of 2020. The failure to do so was fault. Mr X made private arrangements for Y instead and so he suffered a financial loss.
18. The Council has agreed to reimburse Mr X for the SLT he has already paid for, which is a partial remedy which should have been completed by now – the delay in reimbursing Y is an additional fault. The Council has now agreed a personal budget for Y’s SLT and this is also a partial remedy.

Agreed action

19. The Council will within one month, apologise and pay Mr X £300 for his time and trouble complaining and for the avoidable distress and inconvenience. The Council should also reimburse Mr X for the cost of provision already purchased and delivered and include details of the agreed personal budget for Y in section J of his EHC plan. I will require evidence of compliance.

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Final decision

20. There was fault by the Council because it failed to tell Mr X of his right to request a review of the decision not to give his son Y a personal budget/direct payment and took too long to complete the review having said it would do so. The Council should also have arranged SLT for Y in the Autumn term of 2020 and was at fault by not doing so. It has since agreed to reimburse Mr X for the SLT he has paid for from his own pocket, which is a partial remedy. The Council needs to apologise, process the reimbursement and make Mr X a symbolic payment to reflect his time and trouble and inconvenience and distress.
21. I have completed the investigation and shared a copy of this statement with the Office for Standards in Education, Children’s Services and Skills (OFSTED) under our information sharing agreement.

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Investigator's decision on behalf of the Ombudsman