Summary: Mrs X complains the Council has failed to provide outreach support for her son Y, as specified in his EHCP. We have concluded our investigation having made a finding of fault by the Council. Although the Council did allocate direct payments when there was no agency support in place, we have not been able to substantiate that sufficient support was in place all the time. Further, the Council has not kept clear and accurate records which has contributed to confusion and uncertainty in this complaint. The Council has agreed to our recommendations.

The complaint

1. Mrs X complains that since September 2020 her son, Y, has failed to provide outreach support as specified in his EHCP. Mrs X also says the Council has failed to update Y’s EHCP to reflect an increase in support. Mrs X would like the Council to apologise and make a financial award in recognition of the impact this has had on Y and her family.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended)
3. 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)
4. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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)

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How I considered this complaint

7. I spoke with Mrs X and considered information she provided. I also considered information provided by the Council in response to enquiries I raised. Mrs X and the Council had an opportunity to comment on my draft decision and I considered any comments submitted.

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What I found

Relevant legislation and guidance

EHC Plans

8. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014
9. The procedure for reviewing and amending EHC plans is set out in legislation and the Code. The plan should be reviewed by the council and the school with the parents and/or the child at least once a year. Sometimes an early review may be requested if there is a need to amend a plan more urgently. For example, if a school placement has broken down.
10. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
11. The Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
12. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Personal budgets and direct payments

14. A personal budget is an amount of money identified by the council 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”.
15. A child or young person’s parents have a right to request a personal budget, when the council 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.
16. 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 section 7 of the Special Educational Needs (Personal Budgets) Regulations 2014 (“the 2014 Regulations”).
17. Councils must agree the provision to be made in the EHCP with the parent/young person and help them decide if they want a personal budget. The funds allocated must be sufficient to deliver the agreed provision and the parent or young person must agree to a personal budget/direct payment.
18. Carers, under the Council’s guidance and policy are required to provide monitoring sheets to substantiate how the direct payments have been spent.

Outreach support/short breaks

19. Outreach support and short breaks are activities for children and young people with a disability. a disabled child or young person to have an enjoyable break away from their main carer and give their carer a break from their caring responsibilities.

Discretion to investigate

20. Events in this complaint date back further than 12 months and have been ongoing for several years. Given the arrangements that were in place at the time, it would have been difficult for Mrs X to isolate issues complained about from that of the support, Z, her other son was receiving. Further, there is much uncertainty in this complaint that would have contributed to any delay in Mrs X bringing her complaint to our service and we have therefore exercised the Ombudsman’s discretion to investigate.

Background:

21. Mrs X’s son, Y, has an EHCP. Specified within Y’s was for the provision of outreach support of 2 hours per week.
22. Mrs X also has another son, Z. Prior to October 2019, Z was receiving 2 hours a week of direct payments. Following a meeting with the Council toward the end of October 2019, it was agreed that direct payments should end, and agency support would be provided and used flexibly to meet the needs of Y and Z.

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What happened

23. I have included a summary of some of the key events below. This is not intended to be a comprehensive account of everything that took place.
24. In 2018, direct payments of £1,000 were allocated for Z to cover approximately 2 hours per week. This was to be used to employ a direct payment worker to spend time with Z.
25. The Council says that Mrs X later informed it that the arrangement was not suitable due to difficulties finding a suitable worker. And so, in January 2019, the Council sought the services of Agency A.
26. The Council says the direct payments should have been stopped when support from Agency A began but it did not.
27. From January 2019 to June 2019, support was provided to Y and Z from Agency A. The Council says its contract with Agency A remained until support was ended at the request of Mrs X in September 2019.
28. In September 2019, direct payments were increased to 6 hours per week. The Council says it continued to allocate direct payments for Y and Z.
29. In October 2019, Y’s outreach support entitlement was formally increased to 4 hours per week. The Council says it informed Mrs X that direct payments would stop but this was disputed and so it kept the direct payments in place.
30. Toward the end of October 2019, the Council said it would increase outreach support to 8 hours per week and stop direct payments once the support was formally in place.
31. The Council says it identified Agency B at the end of October 2019, but due to the time taken to identify suitable staff for Y and Z, support was not formally put into place until January 2020.
32. From January 2020, support was provided to Y and Z from Agency B. Toward the end of March 2020, following England entering its first lockdown due to the COVID-19 Pandemic, Mrs X requested the outreach support stop due to social distancing rules.
33. From February 2020 to June 2020, The Council says Y was also receiving support from Agency C. Mrs X disputes this.
34. The Council wrote to Mrs X in August 2020, regarding an overpayment originating from the direct payments it had allocated. The Council says that Mrs X failed to provide monitoring information for how the payments had been spent.
35. In August 2020, Mrs X requested that support from Agency B be restarted. In September 2020 Agency B informed the Council that it was waiting to receive a start date from Mrs X.
36. The Council says from October 2020 it allocated 4 hours of direct payments for Y and Z.
37. In early 2021, the Council says it wrote the overpayment off that it sought from August 2020 as bad debt.
38. In May 2021, Mrs X made a further request to the Council for support to be reinstated. The Council recommended a buddy scheme for Y. The Council says there was a delay in setting up this service as information it required had not been returned.
39. In July 2021, the buddy scheme had been formalised, but a buddy had not yet been allocated to Y.
40. In October 2021, Z was receiving support from Agency B. The Council says this continued during the term time until July 2022.
41. The Council says it ended allocation of direct payments in March 2022.
42. In March 2022, Agency B resumed support which was formally put in place for Y and Z from May 2022.

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Analysis

Was there sufficient support in place all the time?

43. As part of my enquiries to the Council, I asked it to provide a breakdown of any outreach support and direct payments that had been provided for Y. The Council says it is not able to separate out support provided to Y and Z because the support was to be used flexibly by Mrs X and the family.
44. The Council says this was at the request of Mrs X, who raised concerns in October 2019 about the subsequent impact Z’s circumstances were having on Y. It was then agreed in a meeting in October 2019 that support would be extended to support Y also.
45. The lack of clear and accurate records from the Council makes it difficult to substantiate the extent to which it made direct payments, and for whom. I therefore have to decide based on the evidence available to me whether the direct payments made by the Council, when agency support was not in place was intended and sufficient for Y.
46. Given the flexible arrangements in place at the time, I have concluded there was sufficient outreach support or direct payments in place for Y between October 2019 and September 2020, but not from October 2020 to October 2021. Whilst I can see that direct payments remained in place after October 2020, they were decreased below the allocation required to support both Y and Z at 6 hours per week. This is because Z was to receive 2 hours of support, and Y 4 hours of support.
47. To reach this view, I can see that direct payments were in place for Z between January 2018 and January 2019 and from January 2019 to June 2019, Agency A were providing support to Y and Z.
48. Support from Agency A ended in September 2019, and direct payments were then increased to 6 hours per week; this was to reflect an increase in support to be extended to Y also. Direct payments continued and were not stopped. From January 2020 to March 2020, Agency B were providing support to Y and Z. Direct payments continued to be allocated sufficiently until October 2020.
49. The Council says it began allocating direct payments of only 4 hours per week from October 2020. I cannot see that any agency support was in place to provide outreach support until October 2021, when support was provided to Z, and so I cannot see why the Council reduced the direct payments it was allocating.
50. Between September 2019 and October 2020, the Council were allocating direct payments at a rate of 6 hours per week. The direct payments allocated for Y and Z from October 2020 to October 2021 were allocated at a rate of 4 hours per week and were insufficient in meeting the needs of both Y and Z. Here I have made a finding of fault which has caused an injustice to Mrs X and her family, as the direct payments were not enough to provide the support specified for Y and Z.
51. Although Mrs X made a request for agency support to be reinstated in May 2021, I have not made a finding of fault for it not being in place. This is because, as per correspondence between Mrs X and the Council, it was awaiting information that had yet to be returned to it. Further, events surrounding Mrs X and her family in October 2021 are likely to have made it more difficult for any formal arrangement to be put in place.
52. The direct payments were ended in March 2022 when Agency B began providing support again.
53. Mrs X says she did not have knowledge to the holding account with which the direct payments were paid in to. On balance, I am satisfied that Mrs X did have knowledge of the account. This is because I have seen Mrs X’s signed declaration, demonstrating she understood the terms of the account. Further, I have seen correspondence between Mrs X and the service facilitator further demonstrating knowledge of the account.

Record keeping

54. Poor recording keeping has contributed to the uncertainty and confusion that surrounds this complaint. If the Council has not kept clear and accurate records of the direct payments it made for Y and Z individually, it cannot confidently determine that it has fulfilled its duty, and here I have made a further finding of fault. This has led to confusion and uncertainty for Mrs X and her family.
55. Although the Council says it has been unable to separate out support because support was to be used flexibly by Mrs X, this does not absolve the Council of its responsibility to keep accurate records. The Council should have kept accurate records of any arrangement or support that was in place at the time, and accurate records of any direct payments it allocated for Y and Z.

Outreach support and direct payments being used together

56. The Council says it was providing direct payments when outreach support was in place. The Council informed Mrs X of its intention to seek recovery of an overpayment in August 2020 but subsequently wrote this amount off in early 2021. It is not clear why the Council did not stop direct payments when agency support was in place.
57. The Council should not have been providing direct payments and outreach support at the same time. Given the Council’s lack of records and accurate record keeping, I am unable to substantiate why it did this. In any event, the Council decided to write off the alleged overpayment in early 2021, and I therefore do not consider the existence of an alleged overpayment pertinent to Mrs X complaint and what happened before or after.

Amendment of Y’s EHCP

58. The Council has said that amendments have not been made to Y’s EHCP to reflect an increase in support as the EHCP is going through the tribunal process. The Council has confirmed the EHCP will be amended by both parties as the appeal proceeds.

Putting things right

59. As set out in paragraph 46, the lack of record keeping has made it difficult to substantiate exactly when and if direct payments were made exclusively for Y or Z. It is not possible to put a value on any exposure to social situations that Y could have benefitted from, nor for any time Mr and Mrs X could have spent away from their caring responsibilities. It should be noted that we don’t base our remedies on the actual cost of the service, rather, we look at the impact of the fault on the family, and recommend symbolic payments based on our guidance.

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Agreed action

60. To put things right and prevent similar occurrences, the Council has agreed to:
1. Apologise to Mrs X for causing confusion and uncertainty, and failing to provide sufficient support for Y.
2. Pay Mrs X and her family an amount of £1,000. This includes an amount of £500 in recognition of insufficient support being in place for the period of October 2020 to October 2021 which resulted in the missed opportunity of social exposure for Y. Further, this also includes an amount of £500 for the missed opportunity of time away from their caring responsibilities that sufficient support would have provided Mr and Mrs X.
3. Explain what it will do, where flexible support is provided, to ensure that appropriate record keeping of any arrangements and direct payments is documented. Records should set out how any flexible arrangement is meeting the needs of all children as per the provisions specified in their EHCP.
61. The Council has agreed to completed action a and b within one month, and action c within two months of the Ombudsman’s final decision.

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Final decision

62. I have concluded my investigation having made a finding of fault by the Council. Although the Council did allocate direct payments when there was no agency support in place, we have not been able to substantiate that sufficient support was in place all the time. Further, the Council has not kept clear and accurate records which has contributed to confusion and uncertainty in this complaint. The Council has accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman