Summary: Mrs X complained the Council refused to increase her son, F’s personal budget to secure funding for a teaching assistant in line with his Education, Health and Care (EHC) plan. F’s personal budget was underfunded which means the Council did not provide all of the teaching assistant hours which F was entitled to in line with his EHC plan. The Council agreed to increase F’s personal budget to cover the extra 13 hours F is entitled to and backdate the missing payments. It also agreed to pay Mrs X £300 to acknowledge the distress, inconvenience and time and trouble the matter caused her and carry out service improvements.

The complaint

1. Mrs X complains the Council has refused to increase her son, F’s personal budget in line with his Education, Health and Care (EHC) plan. Mrs X says F is entitled to 26 hours of funding per week for a teaching assistant at home however the Council is only funding 13 hours.
2. Mrs X says the Council has underfunded F’s personal budget since May 2022 so therefore is not providing him with a full-time education in line with his plan. She says this is causing the family distress, uncertainty, time and trouble and unnecessary financial loss.
3. Mrs X wants to the Council to provide the full personal budget backdated to May 2022.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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.

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How I considered this complaint

7. I spoke to Mrs X about her complaint and considered information she provided.
8. I considered the Council’s response to my enquiry letter.
9. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
11. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
12. A Personal Budget is an amount of money identified by a council to deliver provision set out in an EHC plan where the parent or young person is involved in securing that provision. (SEND Code of Practice, paragraph 9.95)
13. The Code states the final allocation of funding budget must be sufficient to secure the agreed provision specified in the EHC plan and must be set out as part of that provision.

What happened

14. Mrs X has a child, F who is of primary school age. F has special educational needs (SEN) and health issues. He has an EHC plan.
15. Section I of F’s EHC plan shows he spends one day per week attending a mainstream school and the other four days at home on an Education Other Than at School (EOTAS) package which is in place due to his medical needs. F’s social care outcomes show he is entitled to 104 short break hours each year which is paid for through social care provision.
16. F’s EOTAS package is funded via a personal budget which is set out in section J of his EHC plan. F receives a personal budget and the EHC plan breaks down how this allocated in section F of his plan. Section F of the EHC plan states F is entitled to a 1:1 teaching assistant (TA) when he is educated at school and at home for 32.5 hours a week over the five days.
17. F’s EHC plan issued following the annual review in June 2021 outlined the personal budget for the following year. It was deemed at the time that F could only manage two days EOTAS each week. Section J of the EHC plan outlined that F would receive a personal budget of £33,977 for the year of which £9,440 was allocated to pay for the TA for a total of 13 hours (two days) each week. The EHC plan F ‘requires full-time support though he is not always able to access this. Therefore, this element will need to be costed on a sliding scale and will be increased as and when F can access more support’. The remainder of the personal budget was broken down and allocated to sessions with a clinical psychologist, occupational therapist (OT) and various recreational activities such as swimming and yoga.
18. F’s next annual review took place in May 2022. The minutes show that all attendees agreed no changes were needed for F’s EHC plan. However professionals agreed that F could now cope with increasing his EOTAS at home to four days (26 hours). The minutes show the funding allocated for F’s TA in the personal budget would need to be increased to facilitate this.
19. In June 2022 the Council’s SEND panel considered the annual review outcome and the request to increase F’s personal budget. The panel decided not to increase the budget to cover the 26 hours for the TA. The panel said if F wished to increase his TA time at home, then the funds should come from some of the other activities listed in his plan which it said was covered by the 104 hours short break funding.
20. Mrs X complained to the Council via an advocate about the decision not to increase the personal budget to cover the extra TA hours F is entitled to. They pointed out that F was entitled to 32.5 hours a week 1:1 support from the TA as outlined in section F. They said the personal budget was underfunded by £9440 which equates to the extra 13 hours required for the TA. They said Mrs X was currently funding the hours herself.
21. The Council provided a stage 1 response. It said F was already receiving funding for 26 hours of TA support. The complaint response gave no rationale explaining how the Council reached that conclusion.
22. Mrs X escalated the complaint to stage 2. She said the Council’s understanding was wrong and that the current personal budget only covered 13 hours of TA support at home.
23. The Council provide its final complaint response in November 2022. It said Mrs X could use the allocated personal budget how she felt best, which included increasing the TA hours. The Council said it ‘appears’ F already had funding for a total of 32.5 hours of TA support. It declined to increase the personal budget.
24. Mrs X remained unhappy and complained to us. She said F remained without funding to pay for a TA each week. She said the family were currently either paying for that themselves or having to support him.

The Council’s response to us

25. The Council failed to provide a full response to my enquiry letter. Its partial response accepted processes had not been correctly followed. The Council was unable to provide any evidence of discussions about F’s personal budget. It was unable to provide a rationale to support its assertions that F ‘appeared’ to already have funding in place to cover the 32.5 hours.

My findings

26. The Council has a legal duty to ensure the provision outlined in section F of an EHC plan is in place. F’s plan states he is entitled to 32.5 hours 1:1 support from a TA. This equates to 6.5 hours a day, one of which is within a school environment, the other four days at home under an EOTAS package. Prior to the annual review in 2022 the evidence shows F could only manage two days a week at home and therefore the personal budget reflected that. Following the annual review in 2022 professionals agreed F could now cope with the full allocation of TA hours and no changes were made to the EHC plan.
27. The panel’s decision not to increase the personal budget because F can access funding via the short breaks funding is flawed and was fault. This is because F’s short break package is paid for under social care legislation and is not educational provision set out in section F. The Council has not offered any further evidence to support the panel’s rationale.
28. The Council’s rationale that it ‘appears’ F was already receiving funding for 32.5 hours TA support was also flawed and is fault. This is because the EHC plan clearly breaks down how the personal budget is spent and there is no funding left to fund the extra 13 hours. The Council has not offered any further evidence to support its rationale.
29. The Council’s decision not to increase F’s personal budget or provide the funds to pay for the extra 13 hours TA support in a different way meant F has not received the 32.5 hours of TA support in line with section F of this EHC plan. The EHC plan is clear that the TA funding element of the personal budget ‘will be increased when F can access more support’. The failure to either increase the personal budget or deliver the extra 13 hours of TA support in another way is fault. It means there is a shortfall of £9440 in the personal budget to pay for the 13 hours each week. It meant Mrs X has had to either self-fund the 13 hours for a TA or take unnecessary time off work to cover the hours with F herself. This has caused her distress and time and trouble and meant F has at times missed out on education he was entitled to.

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Agreed action

30. Within one month of the final decision the Council agreed to:
• increase F’s personal budget by £9440 and backdate all of the missed payments since June 2022. This remedy is to acknowledge F’s loss of TA support in line with his EHC plan since June 2022. The Council will allow Mrs X to use these back payments to reimburse any personal expenditure used since June 2022 to self-fund F’s provision, and any remaining to help him catch up on missed provision as she sees fit.
• pay Mrs X £300 to acknowledge the distress, uncertainty and time and trouble caused to her by the faults.
31. Within three months of the final decision the Council agreed to:
• review the handling of Mrs X’s complaint taking into account the findings of fault around a lack of rationale for the conclusions at both stage 1 and stage 2 of the process. The Council should discuss the findings with complaint handlers at the next team meeting and outline to us any learning and actions it will take to improve how it responds to complaints going forward.
• carry out staff refresher training around EHC plan provision and personal budgets and consider using this decision as a case study. The training should ensure staff, including those who sit on funding panels are aware of the law and statutory guidance around personal budgets and the need for personal budgets to be sufficient to secure the agreed provision set out in the plan.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman