The Ombudsman's final decision:
Summary: Mrs R complains the Council wrongly ended her son’s (Child A) personal budget which was used to support his special educational needs. She also complains the Council has delayed in amending Child A’s Education and Health Care Plan (EHCP). We have identified numerous and serious failings by the Council which amount to poor administrative practice in some areas. The Council repeatedly made flawed decisions about Child A’s personal budget based on no clear rationale or criteria. It also failed to provide Mrs R her legal right to challenge the decisions through a clear review process. The Council also failed to adhere to statutory guidance relating to the timeframe for amending an EHCP. Mrs R has suffered serious loss, harm and distress by reason of the Council’s failings. The Council has agreed to our recommendations to remedy the serious injustice identified.
- The complainant, who I refer to a Mrs R, is making a complaint on behalf of her son (Child A) who has special educational needs (SEN). Surrey County Council (the Council) maintains an Education and Health Care Plan (EHCP) for Child A. Further, the Council provided Child A with a personal budget to access provision in order to support his SEN. In summary, Mrs R alleges the following:
- The Council ended the personal budget without notice.
- The Council rejected a new personal budget when Child A's EHCPs was formally reviewed.
- The Council has delayed in carrying an annual review for Child A.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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 a serious 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).
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended).
How I considered this complaint
- I have read Mrs R's complaint to the Council and Ombudsman. I have also had regard to the Council's responses to my formal enquiries in relation to matters raised and held a meeting with its officers to obtain additional information. Further, I have considered supporting documents and applicable legislation and statutory guidance. I invited both Mrs R and the Council to comment on my draft decision statement. Each of their comments were fully considered before a final decision is made.
Background and legislative framework
Council’s duty to provide alternative education
- The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise than at school, as specified by Section 19 of the Education Act 1996. This states:
"Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them."
- The provision should generally be full time unless it is not in the child's best interests because of their physical or mental health.
Education and health care plan (EHCP)
- An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
- Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
- When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
- Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
- The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child's educational, health and care needs and create an EHCP.
EHCP annual review
- The Annual Review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan.
- The 'Special Educational Needs and Disability Code of Practice: 0 to 25 years' (the Code) is statutory guidance. This means local authorities must follow the Code when making decisions about children with EHCPs. The Code says: "9.169 The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the local authority's decision following the review meeting must be notified to the child's parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or previous review".
- In practice the review covers not just the annual review meeting, but the Council's decision (to maintain, cease or amend the Plan) following the meeting. Each of these three decisions carries a right of appeal to the SEND Tribunal.
Personal budgets and direct payments
- A personal budget is an amount of money identified by the local authority to deliver provision set out in an EHCP. The Council can identify elements of the provision which can be made via a direct payment. Councils must ensure that children and young people with an EHCP receive a level of support which will help them "achieve the best possible educational and other outcomes".
- Local authorities must provide information on personal budgets as part of the Local Offer. This should include a policy on personal budgets that sets out a description of the services across education, health and social care that currently lend themselves to the use of personal budgets, how that funding will be made available, and clear and simple statements of eligibility criteria and the decision-making processes (paragraph 9.96 of the Code).
- A child or young person's parents have a right to request a personal budget, when the local authority has completed an EHCP needs assessment and confirmed that it will prepare an EHCP. They may also request a personal budget during a statutory review of an existing EHCP.
- Where the SEND Tribunal can consider the special educational provision set out in the EHCP, there is no appeal against a decision not to provide a personal budget or direct payment. However, if a local authority refuses a direct payment it must give reasons in writing and tell the parent of the child or young person they have a right of review in accordance with s7 of the Special Educational Needs (Personal Budgets) Regulations 2014 ("the 2014 Regulations").
- As set out under s14 of the 2014 Regulations, a local authority must stop making direct payments if, following a review, this:
- is having an adverse impact on other services which the local authority provides or arranges for children and young people with an EHCP which the authority maintains; or
- is no longer compatible with the authority's efficient use of its resources.
Chronology of events
- Since March 2018, the Council has maintained an EHCP (version 1) for Child A.
- In February 2019, the Council issued an amended EHCP (version 2) for Child A following an annual review of his needs and educational provision.
- In April 2020, the Council held an annual review of Child A's EHCP (version 2).
- In June 2020, the Council started to provide Child A with a personal budget. This meant that Mrs R received direct payments of £400 per month to provide private tuition to Child A in maths and literacy.
- In January 2021, the Council decided it would cease Child A's personal budget.
- In February 2021, the Council notified Mrs R of this decision and also provided her with a copy of Child A's draft amended EHCP. Mrs R immediately challenged the decision made.
- In March 2021, the Council stopped making direct payments. Later that month, Council officers attended a meeting with Mrs R to discuss its decision to end the personal budget.
- In April 2021, the Council issued an amended EHCP (version 3) for Child A. Moreover, it held a further annual review meeting for the latest EHCP (version 3).
- In June 2021, the Council considered a request from Mrs R to provide a personal budget for Child A. The Council declined to do so.
- In August 2021, the Council issued an amendment notice to Mrs R to amend Child A's EHCP (version 3). This meant the Council had eight weeks from this point to issue the EHCP so Child A could access his provision.
- In January 2022, the Council considered a request from Mrs to provide a personal budget for Child A. The Council declined to do so.
- In May 2022, the Council issued an amended EHCP (version 4) for Child B. This carries a right of appeal to the SEND Tribunal should Mrs R dispute the contents of the EHCP (e.g. identified needs and/or provision).
- The Council must provide information on personal budgets as part of the Local Offer. This should include a written policy on personal budgets that contains clear and simple statements of eligibility criteria and the decision-making processes. Though the Council does maintain a Local Offer, I do consider this to be adequate with respect to personal budgets and direct payments. In brief, the Local Offer is limited to explaining what a personal budget and direct payment is. This does not conform to the requirements of the Code. Consequently, when assessing whether a child or young person should be in receipt of a personal budget, the Council does not assess the application against any established criteria. This demonstrates poor administrative practice and is a primary factor which has contributed to poor decision-making within the Council (discussed below).
Ending the personal budget
- If the Council decides to end a personal budget, it must first give notice to the parents of the child or young person, setting out clear written reasons for the decision. The Council decided to end Child A's personal budget in January 2021 and it stopped making direct payments in March 2021. I have reviewed the Council's written record of that decision. In my view, the record is entirely inadequate and fails to set out even basic information. Specifically, the record maintained fails to outline any rationale for the decision taken. Further, it does not stipulate which condition, under s14 of the 2014 Regulations, the Council relied upon to end the personal budget. The decision is limited to the budget ending.
- In addition, there is no evidence the Council notified Mrs R of her right to request a review of the decision to cease the personal budget under the 2014 Regulations. The evidence provided shows the Council told Mrs R it would be ending the personal budget without reasoning or recourse. In response to my enquiries, the Council told me it gave reasons for the decision in its formal complaint response to Mrs R. To be clear, responding to a formal complaint does not satisfy legal notice requirements. This only serves to retrospectively give reasons for the decision to end the personal budget which is inadequate.
- In early February 2021, Mrs R notified the Council she was dissatisfied with the decision to end Child A's personal budget. The Council later held a meeting to discuss the decision, but the personal budget ended in March 2021. The Council's record of that meeting also failed to specify the reasoning it decided to end Child A's personal budget. Moreover, notwithstanding that Mrs R put on the record she contested the decision, I have seen no evidence the Council reconsidered its decision it pursuant to the 2014 Regulations. Rather, the Council took Mrs R's reasoning and treated it as a request for a personal budget at the time it was undertaking the April 2021 EHCP annual review. Mrs R was therefore denied a right of review by the Council.
- In summary, I consider the Council made a procedurally and substantively flawed decision to end Child A's personal budget, without providing a clear rationale for this. There was no notice provided by the Council to allow Mrs R to make an informed request for a review. However, when Mrs R did contest the decision, the Council should reasonably have undertaken a reconsideration of it and maintained a full audit trail to support its decision-making. In my view, the Council's actions were irresponsible and failed to act in accordance with the 2014 Regulations. I therefore find fault by the Council as Child A's personal budget was ended in a flawed way which reduced the scope of available support for him.
Decision not to reinstate personal budget
- In June 2021, the Council considered whether it should provide a personal budget for Child A. As said, Mrs R's expressed dissatisfaction with the original decision should have been treated as a request for a review, not a new request for a personal budget. In any event, the Council declined to provide a personal budget. I have reviewed the written record maintained by the Council which details the decision made. This is limited to the following:
Personal budget not reinstated. The school is offering a package of support that should meet needs therefore a personal budget is not required.
- I do not accept this is a clear, well considered and robust decision. There is no consideration of Child A's needs or what specific examples of support is (not should) being provided by the school setting to meet provision needs. To demonstrate good administrative practice, I would expect the Council to assess a personal budget request against the provisions to be secured, the outcomes it will deliver and how it will meet health, education and social care needs. It is not sufficient to briefly outline that a school should (in theory) be able to meet the needs of Child A. Mrs R is entitled under the 2014 Regulations to request a personal budget and for this to be considered in a professional and responsible way. I do not consider this has happened and so I find fault by the Council.
- Separately, I have read the Council's email to Mrs R informing her about the outcome of its decision to not offer a personal budget. This fails to notify Mrs R of her right to request a review of the decision. I therefore find fault by the Council.
- In January 2022, the Council considered a further request from Mrs R to provide a personal budget for Child A. The Council declined to provide a personal budget. I have reviewed the written record maintained by the Council which details the decision made. This outlines the following rationale:
"The priority should be given to educational support being offered through the school provision. There is sufficient resource within the school to support his additional needs and this should be the first point of contact regarding any provision. The role of the [anonymised] within the school is to ensure that Child A receives pre-learning and also confirms that he has processed the learning he has undertaken in class. Therefore, this should provide the support required to engage him in education generalisation."
- In my view, this is a lengthier version of the Council's inadequate decision taken in June 2021 (see above). Though there is evidence to suggest the Council considered Child A's needs or maintained EHCP provision at the time, the recorded decision provides no assessment of this. Moreover, I have not seen a well-considered assessment of what Child A's school is providing by way of teaching and provision. The Council's decision-making is limited to that a school is the first point of call relating to provision and the school in question appears to have adequate resources. This is not a robust decision and it fails to properly capture that it is the Council's legal duty to provide EHCP provision. I therefore find further fault by the Council. This means I am not satisfied the Council has ever properly considered whether Child A should receive a personal budget since the date it decided to implement one. Again, Mrs R was not informed of her right to request a review of the decision.
Annual review delays
- The Code says an EHCP should be reviewed within 12 months of it first being issued, and every 12 moths subsequently. The Council must also confirm whether it intends to amend an EHCP within 8 weeks of an annual review meeting. In this case, Child A's final EHCP (version 1) was issued in March 2018. It was subsequently reviewed and an amended EHCP (version 2) was issued by the Council in February 2019. Thereafter, the Council held an annual review of Child A's EHCP (version 2) in April 2020 and it issued an amended EHCP (version 3) in April 2021. I find fault by the Council that it did not hold an annual review within 12 months of Child A's EHCP (version 2) being issued. This meant Child A's EHCP (version 3) was unfairly delayed.
- Moreover, there was a period of one year between the annual review held in April 2020 and the Council issuing the amended EHCP (version 3) in April 2021. I consider this also amounts to an unreasonable delay by the Council and so I find fault. That said, I do not consider Child A suffered a significant injustice (serious loss, harm or distress) by reason of the fault identified.
- The Council held an annual review meeting of Child B's EHCP (version 3) in April 2021. It issued an amendment notice to Mrs R in August 2021. As said, the Code says that following an amendment notice being issued, the Council should issue an amended EHCP within 8 weeks. This means the Council should have issued an amended EHCP by no later than October 2021. However, the Council failed to issue an amended EHCP (version 4) until May 2022. I find fault by the Council in this respect as it seriously delayed in issuing Child A's EHCP (version 4).
Injustice to the complainant
- The Council has fallen far below the standards of good practice. It has also not complied with legislation and statutory guidance. I must therefore consider whether the fault has caused Child A and/or Mrs R to suffer serious loss, harm or distress. This must be considered in the context of both the personal budget and annual review areas of fault identified.
- The Council identified that Child A needed a personal budget to meet his identified SEN. It entered an agreement with Mrs R in May 2020 to make a direct payment of £400 per calendar month, commencing from June 2020. The Council was at fault for ending Child A's personal budget and the direct payment in March 2021. The Council has not provided any evidence to justify why the personal budget ended and each of its decisions in this respect have been flawed. I therefore consider Child A's needs were at risk of not being met since the date the personal budget ended. Specifically, the personal budget was designed so that Child A could receive private tuition in numeracy and literacy each week. At no point did the Council say how exactly, and through what specific provision, his needs would be met following the termination of the personal budget.
- I have spoken to Mrs R in relation to what happened when the Council ended the personal budget and direct payments for Child A. She told me Child A was unable to engage properly in schoolwork due to his SEN and that she took over the funding of his weekly private tuition to ensure his needs were met. Mrs R has retained copies of invoices and the payments she made for numeracy and literacy tuition. In short, Mrs R has protected Child A as much as possible from suffering an injustice due to the Council's consistent failings. However, by doing so, she has suffered serious financial loss and distress. I am recommending a full back payment of £400 per month since the date the Council wrongly ended Child A's personal budget. The Council has never accurately assessed whether Child A should be in receipt of a personal budget since it ended this. I am therefore recommending the payments be reinstated until it does.
- In relation to the annual reviews of Child A's EHCPs, there were delays by the Council. However, I have seen no evidence that Child A lost educational provision, or suffered any other harm, by reason of this failing. I am however satisfied the fault in this area caused serious distress and uncertainty to Mrs R who felt decisions were not being made in the best interests of her son. The distress and uncertainty to Mrs R was seriously exacerbated by the Council for not adhering to the 2014 Regulations with respect to rights of reviews. The Council made flawed decisions and had poor systems in place to ensure Mrs R could properly seek redress against these. This caused her serious distress.
- To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions.
- By no later than 1 July 2022:
- The Council will provide Child A and Mrs R individual written apologies which acknowledge the faults and injustice identified in this statement. I consider these apologies should come from the Council's Director of Education and Lifelong Learning.
- The Council will provide a full back payment of Child A's personal budget since the date it ended this in March 2021. This means the Council will pay Mrs R £5,600 which has been calculated at £400 a month for 14 months.
- The Council will continue to pay Child A's personal budget each month going forward until such a time it makes a procedurally and legally compliant decision whether Child A's personal budget should end. The Council has said this will be either at the next annual review or following a change in personal circumstances, whichever arises sooner.
- The Council will pay Mrs R £1,000 to acknowledge the serious distress, upset and uncertainty she has suffered by reason of the Council's failings. The Council will also pay Mrs R £250 for her time and trouble complaining to achieve an outcome.
- The Council will establish a clear policy relating to personal budgets and direct payments. This will include clear and simple statements of eligibility criteria and the decision-making processes. The policy will be published as part of the Local Offer and made accessible to the public in accordance with the Code.
- The Council will provide formal training to all officers who are (i) responsible for making personal budget decisions and; (ii) responsible for recording written decisions relating to personal budgets. The training will focus on the new policy referred to above and how decisions are to be properly made and recorded to demonstrate good administrative practice in the future.
- At a senior level, the Council will review its systems and practices with respect to conducting reviews of personal budget decisions. Specifically, the Council will produce a template document informing parents of a personal budget outcome. This will contain information relating to a right of review. Further, the Council will develop a robust review process. This will include the timetable for completing a review and how the decision will be reviewed. The Council will implement a practice of sending parents an outcome letter of the review exercise which fully explains how the decision was reached. The Council will adopt further measures it considers appropriate following a full review.
- I am upholding the complaint. The Council has consistently made flawed decisions relating to Child A's personal budget by reason of not having robust systems and policies in place to support decision-making in this area. Moreover, it has denied Mrs R the opportunity to properly challenge these decisions by way of a formal right of review. The Council failed to adhere to the Code in amending Child A's EHCP. There has been a serious injustice caused to Mrs R in this case and the Council has agreed to my recommendations to remedy this.
Investigator's decision on behalf of the Ombudsman