Summary: Mrs B says the Council unreasonably refused to pay her son’s personal budget specified in his education, health and care plan despite the fact she provided all the information the Council asked for. The Council did not provide Mrs B with clear information about the evidence required to support any payments and delayed making payments. An apology, payment to Mrs B, drawing up a personal budget agreement and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council unreasonably refused to pay her son’s personal budget specified in his education, health and care plan (EHCP), despite the fact she provided all the information the Council asked for.
2. Mrs B says fault by the Council has placed a financial burden on her as she has had to pay for her son’s lessons without reimbursement for a long time.

Back to top

The Ombudsman’s role and powers

3. 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)
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)

Back to top

How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

What I found

What should have happened

8. The Special Educational Needs Code of Practice (code of practice) says a personal budget is an amount of money identified by the local authority to deliver provision set out in an EHCP where the parent or young person is involved in securing that provision.
9. Details of the proposed personal budget should be included in section J of the draft EHCP. Local authorities must also provide written notice of the conditions for receipt of any direct payment for special educational provision and can do this alongside the draft EHCP. The child's parent or the young person should confirm their decision and agreement of the budget. Where appropriate, this must include their agreement, in writing, of the conditions for receipt of the direct payment.

What happened

10. Mrs B’s son has an EHCP. That EHCP provides for drumming sessions. That was initially one drumming session per week which was increased to two drumming sessions from March 2022. Mrs B has had a personal budget in place since 2021 for those drumming lessons where she arranges for the lessons to take place and seeks reimbursement from the Council.
11. In May 2021 the Council asked Mrs B to provide details of the person providing the drumming lessons, which Mrs B provided. Drumming lessons started later that year and in November 2021 the Council paid the invoices for September and October 2021. Mrs B provided further invoices in December which the Council paid later that month.
12. In March 2022 Mrs B provided the Council with some receipts for drumming lessons and videos showing sessions taking place.
13. Mrs B provided further invoices in May 2022.
14. In July 2022 the Council told Mrs B it needed evidence of payment to the music tutors or invoices from the music tutors. Mrs B provided that information later that month. The Council then asked Mrs B for contact details for the music tutors so it could obtain progress reports. Mrs B told the Council she had provided the contact details earlier in the year and had also provided videos and progress reports. Mrs B asked the Council what more information it needed.
15. The Council told Mrs B it had not been able to access her videos and needed progress reports from each tutor. In response Mrs B pointed out the Council had not provided any conditions for how the drumming lessons would take place and said she had submitted evidence of her son’s progress.
16. Mrs B chased the Council in September 2022 to find out which files it could not open. Mrs B said she had complied with all the requirements. The Council again said it could not access Mrs B’s videos and asked her to send those in a different format, which she did.
17. In October 2022 Mrs B chased the Council for payment of the outstanding invoices. The Council told Mrs B it could not make payment as it had not received evidence of any learning or progression or any reports from each of the tutors as it had asked for. The Council acknowledged it had received one brief report but noted this was not a report which covered all the tutors. The Council again said it could not access the videos Mrs B had provided. The Council told Mrs B it could only approve payment once it had evidence of learning and progression reports from each of the tutors Mrs B was claiming for. The Council asked Mrs B for contact details for the tutors so it could arrange for them to be set up on the Council’s payment portal so they could invoice the Council directly in future. The Council asked Mrs B for progress reports and any other evidence showing her son receiving drumming lessons so the matter could be resolved.
18. Mrs B provided the Council with updated reports later in October. Mrs B also noted the videos she had sent were showing as having been watched. Mrs B said she wanted to maintain control of her son’s personal budget as she wanted to choose the specific support at the time needed.
19. In November the Council paid the invoices for January 2022-April 2022.
20. The Council intends to produce a personal budget agreement for Mrs B which outlines the terms of reimbursement for drumming lessons. The Council says it also intends to pay Mrs B for the drumming lessons she has provided invoices for up to November 2022.

Analysis

21. Mrs B says the Council unreasonably withheld her son’s personal budget when she had provided all the information the Council had asked for. Mrs B says despite providing the Council with invoices and evidence of work completed with her son the Council has not made any payments since November 2021. In contrast the Council says although it has asked Mrs B for invoices and information from her son’s drumming tutors she has not provided the information in a format that could be accessed by the Council.
22. The Council says it intends to produce a personal budget agreement to outline the terms of reimbursement for the drumming lessons for Mrs B’s son. That was planned for January 2023. However, Mrs B’s son has been receiving drumming lessons since 2021. I would have expected the Council to draw up a personal budget agreement at the time the drumming lessons were agreed so Mrs B knew what she needed to provide to the Council to seek reimbursement of costs. Failure to do that is fault and is likely to have contributed to Mrs B’s confusion about the information the Council needed to support payment of the costs for the drumming sessions. I have seen no evidence the Council made clear to Mrs B her need to provide evidence of progression from the tutors until July 2022. That is despite the fact Mrs B had submitted invoices in March and May 2022. That again is fault.
23. There has also been considerable delay by the Council in considering the information Mrs B provided in support of the costs for the drumming sessions and in refunding Mrs B for the amounts paid. The evidence I have seen satisfies me the Council did not make any payments to Mrs B between December 2021 and November 2022, which is after Mrs B complained to the Ombudsman. That is despite the fact Mrs B had provided the Council with invoices in March and May 2022 and invoices and reports in July, September and October 2022. Delay considering the information provided by Mrs B and in making payment for the period January-April 2022 is fault.
24. I am also concerned that despite the Council making a payment in November 2022 for the period January-April 2022 it did not explain to Mrs B why it had only made a partial payment and why it had not paid for the period from May 2022 onwards. I note the Council has now agreed to make that payment, although it is not clear why the payment was not made previously. Delay making the payment is fault.
25. I am satisfied fault by the Council led to Mrs B having to spend her own money to pay for her son’s drumming sessions, which she has funded through an overdraft. I also consider Mrs B has had to go to time and trouble to pursue her complaint. To remedy that I recommended the Council apologise to Mrs B and pay her £300 to reflect both her time and trouble and the impact having to fund the sessions and not receiving a refund promptly had on her. The Council has agreed to my recommendations.
26. I welcome the Council’s decision to arrange for a personal budget agreement to set out its expectations. I hope this will enable Mrs B to understand the information she needs to provide to the Council to obtain a refund for any costs she has paid and that should ensure those refunds can take place promptly once the evidence is provided. I recommended though if the Council identifies issues with the information submitted by Mrs B it ensure she is informed of the missing information promptly so it can be rectified. I also recommended the Council remind officers dealing with personal budgets of the need to ensure the person receiving the personal budget is aware of what is required to enable funds to be released. The Council has agreed to my recommendations.

Back to top

Agreed action

27. Within one month of my decision the Council should:
• apologise to Mrs B;
• pay Mrs B £300;
• provide the Ombudsman with evidence it has completed a personal budget agreement with Mrs B; and
• remind officers dealing with personal budgets of the need to ensure the person receiving the personal budget is aware of what is required to enable funds to be released.

Back to top

Final decision

28. I have completed my investigation and uphold the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman