Summary: Mrs X complained about the Council’s handling of the funding and personal budget for the provision outlined in her son, F’s Education, Health and Care (EHC) plan. The Council was at fault. It delayed putting funding in place for F’s provision during 2021 and then delayed setting up the personal budget in 2022. This caused Mrs X frustration, uncertainty and time and trouble, however there was no injustice caused to F as he continued to receive provision during this time. The Council agreed to apologise and make a payment to Mrs X to acknowledge the injustice caused to her.

The complaint

1. Mrs X complains about how the Council has administered and handled the funding and personal budget for her son, F’s Education, Health and Care (EHC) plan since January 2021. She complains the Council:
• Delayed agreeing and paying the direct payments since 2021.
• Failed to agree a notional amount for the personal budget following the final plans in 2021 and 2022 which meant she had to reapply on a termly basis.
• Has refused to backdate direct payments for Provider B after a delay in agreeing them at the annual review in January 2022.
2. Mrs X says the Council’s handling of F’s personal budget has caused her distress, uncertainty and time and trouble.

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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. 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)
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. I considered the Special Educational Needs and Disability (SEND) code of practice (the Code).
10. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Education, Health and Care (EHC) plans

11. Children with complex needs may require an Education, Health and Care (EHC) plan. This is a legal document which sets out a description of a child's needs (what they can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
12. The Council has a legal duty to ensure the educational and social care support set out in a final EHC plan is delivered. This duty is non-delegable.
13. Councils should review an EHC plan at least every 12 months.

Education Other than at School (EOTAS)

14. Councils have a duty to provide educational provision which meets the needs of children and young people who, for whatever reason, are unable to attend a mainstream or special school.
15. For children and young people with an EHC plan, the EOTAS provision must be included in section F of an EHC plan which should detail the package of education being provided.

Personal Budgets

16. Once a child or young person has an EHC plan the Council must ensure the support set out in the plan is made for the child or young person. Normally, the Council will do this by providing the necessary funding to the school or college attended by the child or young person or the education provider, in order for them to deliver the educational support needed. The personal budget is the notional amount of money needed to cover the cost of making the special educational provision outlined in the EHC plan.
17. The Code sets out how councils should administer personal budgets with EHC plans. It says Section J should provide detailed information on any personal budget which will be used to secure provision set out in the EHC plan. It must specify the special education needs and outcomes that are to be met by any payments. The Code says the final allocation of funding budget must be sufficient to secure the agreed provision specified in the EHC plan.

The Council’s policy

18. Prior to September 2022 the Council’s policy was for its Governing Board panel to agree personal budgets for up to a maximum of one year, but this could be for shorter periods. It said applicants would then need to reapply for the personal budget which would go back to the panel to decide whether the provision should continue being delivered through a personal budget.
19. The Council said from September 2022 a new policy came into effect where personal budgets are reviewed annually as part of the annual review.

What happened

20. The following chronology will provide a summary of the key events relevant to this complaint. It will not include every detail of what happened.
21. Mr and Mrs X have a son, F who has special educational needs (SEN). In January 2021 the Council issued an EHC plan for F which specified EOTAS in section I. The plan outlined the provision F required which included 10 hours a week specialist teaching from a qualified teacher and 10 hours learning support from a teaching assistant.
22. F started attending Provider 1 in January 2021. Mr and Mrs X paid the fees for this month.
23. In February 2021 Mrs X requested a personal budget to fund F’s SEN provision though Provider 1. The Council agreed to fund Provider 1 but said it would pay the Provider 1 directly. The Council’s governing panel however wanted further information around the tutoring which would take place at Provider 1 and whether F was actually accessing all of his hours. In the meantime, F continued attending Provider 1.
24. In April 2021 Mrs X contacted the Council. Mrs X requested a personal budget. Mrs X said she and her husband had not been refunded for fees they had paid in January. Records show Provider 1 had also raised various invoices with the Council which had not been paid. Later in April the Council sent a request to Provider 1 to obtain information about the fees.
25. Records show the Council refunded Mr and Mrs X for the January fees they had paid at the end of July. However, the Council said funding had only been agreed for the spring term, not the summer term. Mrs X says she had to resubmit requests for funding and the Council eventually agreed funding for the summer term by the end of August 2021.
26. F’s annual review took place in January 2022. Minutes of review meeting show the Council agreed EOTAS should continue. The minutes show Mrs X raised the issues she had with funding and her requests for a personal budget during the previous year. Mrs X said Provider 1 had not been paid since October 2021 and questioned why a notional amount to cover the whole year was not agreed. Mrs X requested a personal budget to cover the whole year plus a further one hour per week at Provider 2. The Council said it would take Mrs X’s request for Provider 2 to its governing board panel.
27. The Council issued F’s draft EHC plan in March which remained broadly the same as the previous one. The governing board panel approved the one hour at Provider 2 during April 2022. The Council issued F’s final EHC plan in May 2022 which included the details of Provider 2. The Council agreed for a continuation of F’s funding at Provider 2 until December 2022.
28. In July 2022 Mrs X asked the Council to backdate the payments she had made to Provider 2 to January 2022. The Council agreed to backdate the payments to April 2022 which is when panel agreed to the funding.
29. Records show the Council did not authorise the personal budget for Provider 2 until the end of November 2022.
30. The Council held F’s annual review early in November 2022. The Council said its governing board panel met in January 2023 and agreed a continuation of F’s funding at Provider 2 until 2024 which is when F is due to transition to secondary education.

Mrs X’s complaint to the Council

31. Mrs X first complained to the Council in February 2022. This was about the Council’s handling of F’s funding since it issued the EHC plan in January 2021. Mrs X was unhappy about delays in agreeing F’s funding, the need to keep reapplying for funding and the delay in paying Provider 1. Mrs X says the Council should have agreed a notional amount to cover the provision outlined in section F of the EHC plan for the year. Mrs X instructed a solicitor to write to the Council about the matter which caused the Council to put the complaints process on hold.
32. Mrs X further complained in September 2022. She complained further about the delay in putting the funding in place for Provider 2 which did not happen until 7 months after panel approval. Mrs X said she had to cover the funds from her own account.
33. The Council issued a final response to Mrs X in December 2022. It said back payment for provider 2 would only be paid to April 2022 which is when panel approved the funding. The Council said it pays Provider 1 directly therefore it is not part of any personal budget arrangement. The Council apologised for the delay in putting the personal budget in place for Provider 2 which it said was due to administrative error by its finance team.
34. Mrs X remained unhappy and complained to us.

My findings

35. Following F’s final EHC plan in January 2021 the Council agreed Mrs X could use Provider 1 to provide F’s provision as outlined in Section F of the plan. The Council said it would pay Provider 1 directly. Therefore, although Mrs X requested personal budget there is no fault in the Council choosing to pay a provider directly.
36. However, it administered the funding poorly. The Council’s decision to approve funding on a term-by-term basis during 2021 contributed to the delays in funding being in place. The funding is for F’s provision which he is legally entitled to as outlined in his EHC plan. This provision can only change following an annual review and an amended EHC plan. Therefore, it was not appropriate for Mrs X to keep justifying to the Council on a termly basis why funds were needed, to pay for provision which F was legally entitled to. The Council should have had funding arrangements in place at the time it issued the final EHC plan. The delays in both approving funding at Provider 1 and repaying Mrs X for funds she had initially paid was fault.
37. The Council’s handling of F’s funding during 2021 caused Mrs X distress, uncertainty and time and trouble. However, there was no injustice to F as although funding was regularly delayed, there was no loss of provision or disruption to his education.
38. The Council carried out F’s annual review at the start of 2022 at the appropriate time. Mrs X asked for the inclusion in the EHC plan of further provision at Provider 2 by way of personal budget. The panel approved this in April and the provision was included in the final plan issued in May 2022. There was no fault in how the Council approved and considered Provider 2. Provider 2 was not in F’s EHC plan prior to panel agreement and therefore it is not at fault for only back paying Mrs X to the date of agreement.
39. However, it significantly delayed putting the personal budget for Provider 2 in place. Panel agreed the funding in April, but it was not in place until the end of November. That was fault. It meant Mrs X had to pay for the funding herself which caused her inconvenience and time and trouble.
40. The Council has now agreed a continuation of F’s funding at Provider 1 and 2 until 2024. It also now has a policy in place where in similar cases it will carry out the annual review early to ensure smooth continuation of funding in children with EOTAS. This should ensure the Council agrees sufficient funding to pay for a child or young person’s provision in an EHC plan until at least the next annual review and should prevent recurrence of the faults outlined in this statement. I have therefore not recommended any further service improvements.

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Agreed action

41. Within one month of the final decision the Council agreed to apologise to Mrs X and pay her £600 to recognise the distress, frustration, inconvenience and time and trouble caused by the Council’s poor handling and administration of F’s EOTAS funding between 2021 and 2022.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. 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