Summary: Mr X complains about the Council’s decision not to provide funding for home tuition and short breaks for his two children during COVID-19 lockdowns. There was no fault because the Council has continued to offer Mr X’s children short breaks. In addition, the Council was not at fault for deciding to cease its short breaks funding by prepayment card because of Mr X’s repeated misuse of the funds the Council provided for his children.

The complaint

1. Mr X complains about the Council’s decision not to provide funding for home tuition and short breaks for his two children during COVID-19 lockdowns – from March 2020 onwards. Mr X says this has cause financial difficulties for him and his family. He wants the Council to refund the money he has spent to cover these costs and for the Council to agree to pay the money needed for his children going forward.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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, section 34(3), as amended)
3. 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:

• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants (Local Government Act 1974, section 24A(6))

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)

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How I considered this complaint

5. I have considered the information Mr X and the Council have provided in respect of this complaint.
6. 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 guidance

7. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
8. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.
9. Services which can be provided under section 2 of the CSDPA include:

• practical assistance in the home including home based short breaks/respite care;
• recreational/educational facilities including community based short breaks; and
• travel and other assistance.

10. Short breaks are part of a range of services to support children in need and include the provision of day, evening, overnight or weekend activities for a child in the child’s own home or in residential care.
11. Parents/carers of disabled children can ask for a direct payment (DP) to meet the needs of the child. The council must carry out an assessment and DPs must be sufficient to meet the assessed needs. DPs must be used by the parent/carer to meet the child’s needs. DPs do not affect any benefit entitlement.
12. Persons receiving DPs must agree them and to keep and submit evidence to show what the funds have been spent on.
13. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to Covid-19’. This reminds councils that basic record keeping is vital during crisis working, and decision-making should be open and transparent even under emergency conditions. There should always be a clear audit trail of how and why decisions were made.
14. The government issued guidance on the use of direct payments, ‘Guidance for local authorities and clinical commissioning groups in the delivery of direct payments and personal health budgets’. The guidance advised that the government expected councils and other commissioning bodies to be as flexible as possible in using direct payments to manage any issues arising from COVID-19. This includes allowing people to use direct payments to employ family members as personal assistants where necessary. The guidance was updated in November 2020.
15. The Council provides Short Breaks Budgets to parents/carers on pre-payment cards which can be used to purchase support or services of their choice. The Council’s Short Breaks Framework explains that parent/carers must provide receipts or proof of expenditure where it is not clear what service a withdrawal was used for.
16. The framework also provides examples of services the Short Break budget should not be used for, which includes appliances, home repair/maintenance, education/tuition services, food, toys and clothing.
17. During the COVID-19 pandemic and associated lockdowns, the Council offered further flexibility to families receiving Short Breaks budgets which allowed them to purchase equipment that promoted play and creativity where funding could not be used as normal.

What happened

18. Two of Mr X’s children have Education, Health and Care Plans to help meet their needs while at school. In March 2019, the Council issued a prepayment card to Mr X for him to use to purchase services and support for his children under its Short Breaks framework. The prepayment card came loaded with the funds to cover short breaks for the children during the year. The Council provided Mr X with details of its Short Breaks framework, so he was aware of the rules around use of the prepayment card.
19. In March 2020, the Council stopped making funds available to Mr X on the prepayment card. This was because the Council had not received any evidence from Mr X to show what he had used the funds for during the previous quarter.
20. Mr X contacted the Council again in September 2020 via a local law centre to request short breaks payments for March to June 2020. The Council agreed to provide this, subject to Mr X providing receipts for the previous period. Mr X subsequently withdrew further funds from the Short Breaks prepayment card but did not provide the Council with any evidence to show what he had used the funds on.
21. The Council suspended payments to Mr X via prepayment card in April 2021. The Council received a further request for funds from Mr X’s legal adviser in July 2021. He informed the Council he had purchased furniture to the value of £3,300 and wanted to use the Short Breaks funding to cover these costs. Mr X said he was unable to use the funding for services or activities as he risked placing an older family member living with him at risk by allowing his children to attend activities during the COVID-19 pandemic. Mr X said he also wanted to use Short Breaks funds to pay for private English tuition for the two children.
22. The Council advised Mr X that he could not use Short Breaks funds to purchase furniture or private tuition as explained in its framework/procedure. The Council provided Mr X with a list of approved Short Breaks providers his children could use to access activities. The Council also said it did not accept sending his children to Short Breaks activities would place their older relative at more risk because it noted none of Mr X’s family was shielding and that the children were still attending school as normal.
23. Mr X brought his complaint to us in in February 2023 because he remained unhappy with the Council’s handling and responses to his concerns.

Analysis

24. The evidence the Council has provided shows Mr X was given details of how he should use the prepayment card to purchase support and services for his two children. He also appears aware that he needed to provide evidence to show what he was using the funds for.
25. Since March 2020, the Council has repeatedly explained to Mr X how he should properly administer the funds on the Short Break prepayment card. Mr X has failed to follow the Council’s instructions about this and providing receipts/evidence of expenditure on at least three occasions. On one occasion, Mr X has also bypassed the Council’s attempt to prohibit ATM withdrawals from the prepayment card by transferring the funds to another bank account.
26. The Council has sought to help parents/carers by offering increased freedom and flexibility with how they use Short Breaks funding to purchase services for their children. It does however still need to ensure that those funds are used appropriately. The Council cannot be found at fault for seeking to ensure Mr X complies with the terms and conditions he agreed to when it issued the prepayment card to him. It also has a wider responsibility to ensure public funds it has provided are not misused.
27. Despite repeated warnings and attempts by the Council to resolve this situation, Mr X appears to have continued to use the prepayment card the Council issued inappropriately by purchasing items not allowed under the Short Breaks scheme.
28. We are not an appeals body and we cannot question if a council’s decision is right or wrong if there was no fault in the way the decision was reached. Where officers take a decision having considered all the evidence and reached a professional judgement, we cannot intervene if the decision was properly taken. The Council’s decision to provide Short Breaks to Mr X’s children via alternative methods to prepayment card is not fault and does not cause injustice to the children, as they still have access to the Short Breaks they are entitled to.

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Final decision

29. I have completed my investigation and do not uphold Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman