Summary: Mr and Mrs B complained the Council required them to enter into a contract to receive the personal budget that was to meet their daughter’s special educational needs. They considered the contract was ambiguous and could mean that their daughter’s agreed needs would not be met. As they have not signed the document the budget is not in payment so their daughter is not receiving all the specified support. There was fault by the Council. The Council will take the action specified, apologise and make a payment as recommended below.

The complaint

1. I refer to the complainants as Mr and Mrs B. They complained the Council required them to enter into a contract to receive the personal budget that was to meet their daughter’s special educational needs. I refer to their daughter as X. They considered the contract was ambiguous and could mean that their daughter’s agreed needs would not be met. As they have not signed the document the budget has not been paid so X has not received all the specified support.

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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 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)
3. 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

4. I considered the complaint and documents provided by Mr and Mrs B and spoke to Mrs B. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.
5. 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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What I found

Summary of the relevant legal background

6. The law relating to direct payments and personal budgets is set out in the Special Educational Needs (Personal Budgets) Regulations 2014 (the Regulations). These say the local authority must provide written notice to the recipient of various matters including the following :
• the goods or services which are to be secured by direct payments;
• the proposed amount of direct payments;
• any conditions on how direct payments may be spent.
7. The Regulations go on to state that the recipient must notify the local authority in writing that they agree to:
• use the direct payments only to secure the agreed provision;
• comply with any conditions specified in the notice referred to above.
8. The Regulations have a section covering how repayments and recovery of direct payments should be managed. It states that if a local authority decides direct payment should be repaid it must give notice to the recipient. That should set out the reasons for the decision, the amount to be repaid and a reasonable timescale for the repayment. It explains how reconsideration by the local authority should be done.

Summary of events

9. Mr and Mrs B received direct payments for X’s special educational needs for two years. There was no written agreement with the Council relating to the payments.
10. The Council issued a revised Education, Health and Care Plan (EHC plan) in August 2022 and shortly afterwards sent Mr and Mrs B a document headed ‘personal budget by way of direct payment - notice and agreement’.
11. Mr and Mrs B were unhappy with the wording of the document and raised their concerns with the Council. The Council responded but Mr and Mrs B remained dissatisfied so complained to us.

Analysis

12. The Council approved the document setting out the requirements for direct payments of personal budgets in May 2021. The Council did not explain why Mr and Mrs B were not asked to sign the agreement for the payments made for the 2021/22 academic year but I am aware Mr and Mrs B did have a complaint with us. It would seem likely the Council, therefore, did not apply the requirement to sign the agreement. The Council also, mistakenly, made the first payment for 2022/23. This is not significant.
13. I am satisfied the Council introduced the requirement to sign the acceptance form across the board to formalise the arrangements for the payment of personal budgets. That was in-line with the regulations. There is no evidence to suggest Mr and Mrs B were singled out for different treatment.
14. The key concern for Mr and Mrs B was around the section in the document on the repayment of any unused direct payments. They considered that by agreeing to the document they would, in effect, be agreeing to the provision not being made if they were, for some reason outside their control, unable to arrange the provision. In the Council’s responses to Mr and Mrs B it was clear that if the money was returned then the responsibility to make the necessary provision would revert to the Council. This was a correct explanation of the relevant law and regulations.
15. There is no fault in the Council having a standard document and asking recipients of personal budgets to sign it. It satisfies the requirements of the regulations and means the Council has a consistent process. But, once it was clear that Mr and Mrs B did not wish to sign it, then the Council should have considered whether there was another way forward.
16. Mr and Mrs B are particularly concerned as they consider the Council would not work with them to find a way forward. They see this as a pattern in the approach adopted by the Council in its dealings with them.
17. The Council commented that the issue was that Mr and Mrs B did not agree with the terms of the regulations and that was not something that could be changed. That was why it considered there was nothing that could be achieved by taking the complaint to the second stage in the complaint process.
18. It is the case that the regulations must be followed but it is not a requirement that a recipient of a personal budget should sign the document the Council uses. The Council should have recognised, when Mr and Mrs B complained, that there could be an alternative to the document the Council normally used. In responding to our enquiries the Council did recognise this and said that if Mr and Mrs B provided, in writing, the information that is required in the regulations then the payment could be made.
19. It was fault for the Council not to reach this point in response to Mr and Mrs B’s complaint. One way to do that would have been to take the complaint to stage 2 of the complaint process.
20. I cannot comment on the wider point made by Mr and Mrs B about their concerns about the way the Council engages with them as I am only considering the specific issues raised as part of this complaint.
21. The fault I refer to above meant there was delay in obtaining the necessary agreement from Mr and Mrs B which in turn meant the payment was delayed.
22. Mrs B said they have not been able to arrange Speech and Language Therapy for X because the payment was not made. There needs to be a symbolic financial payment to recognise this loss of provision. The financial payment I recommend below is also to recognise the impact on Mr and Mrs B of the delay in making the payment.

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Agreed action

23. If Mr and Mrs B provide the required information as set out in Regulation 8(3) of The Special Educational Needs (Personal Budgets) Regulations 2014 the Council should make the payments for the remaining two terms of 2022/23.
24. The Council should apologise – following our guidance on making an effective apology - for failing to identify this way forward when Mr and Mrs B complained.
25. The Council should pay Mr and Mrs B £500.
26. The Council should pay the personal budget within one month of the provision of the necessary information and make the apology and payment within one month of the final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. There was fault by the Council.

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Investigator's decision on behalf of the Ombudsman