Summary: Mrs X complained the Council failed to pay her daughter, Y’s, updated personal budget after it issued her final Education, Health, and Care plan in June 2022. The Council was at fault for delays in arranging Y’s personal budget. The Council agreed to pay Mrs X £300 to remedy the uncertainty the delay caused.

The complaint

1. Mrs X complained the Council failed to pay her daughter, Y’s, updated personal budget after it issued her final Education, Health, and Care (EHC) plan in June 2022.
2. Mrs X also complained the Council failed to complete a review of Y’s Education, Health, and Care (EHC) plan in 2019 and 2020.
3. Mrs X says the matter caused her distress and led to financial difficulties in meeting the cost of Y’s EHC provision.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. 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)
9. 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 have and have not investigated

10. I have investigated Mrs X’s complaint about the Council’s failure to provide Y’s personal budget after the Council issued her final EHC plan in June 2022.
11. I have not investigated Mrs X’s complaint that the Council did not hold an annual review of Y’s EHC plan in 2019 or 2020. This is because the complaint is late as explained at point 6 of this decision. Mrs X complained to the Council in August 2021 and the Council resolved the issue through its complaints process. If Mrs X had been dissatisfied, she could have brought the complaint to us at the time.

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How I considered this complaint

12. I spoke to Mrs X and considered information she provided.
13. I considered information provided by the Council.
14. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

EHC plans

15. 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.
16. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
17. Where the SEND Tribunal orders a council to amend an EHC plan, the council shall amend the EHC plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 
18. 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)

Personal Budgets

19. A child’s parent or young person has a right to request a personal budget to arrange provision set out in an EHC plan. Where a council has agreed to provide a personal budget, it should give an indication of the level of funding that is likely to be required to provide the specialist educational provision specified in the EHC plan. The final allocation of funding must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision. (SEN Code paragraph 9.102)
20. Where there is disagreement relating to the special educational provision to be secured through a personal budget the child’s parent can appeal to the SEND tribunal. (SEN Code paragraph 9.108)

The Council’s complaints process

21. The Council has a two stage complains procedure:
• stage one is completed within 20 working days, or longer if the matter is complex; and
• stage two is completed within 20 working days, or longer in exceptional circumstances.

What happened

22. Mrs X has a daughter, Y, who has special educational needs and an EHC plan. Y is Educated Other than at School (EOTAS), and her EHC plan includes a personal budget paid to Mrs X by the Council to meet the cost of her provision. Y receives tutoring through “Applied Behavioural Approach” (ABA) tutors.
23. In August 2021, the Council issued a final EHC plan for Y. Mrs X disagreed with the level of provision within the plan and appealed the matter to the SEND Tribunal.
24. In March 2022, Mrs X informed the Council that she wished for the personal budget to continue. Mrs X provided an overall cost to deliver the budget to the Council and directed the Council to the tribunal bundle which she said contained the new budget for the ABA provision.
25. In May 2022 the Council conceded and agreed to amend Y’s EHC plan to include the increased ABA provision. The SEND Tribunal issued a consent order instructing the Council to amend the plan in line with the agreement.
26. The Council amended Y’s EHC plan five weeks later in early June 2022. Mrs X immediately commissioned the increased ABA provision in the plan. However, the Council did not pay the increased personal budget to meet the cost of the content of Y’s EHC plan. Mrs X says she used loans and credit cards to cover the cost.
27. Between June 2022 and September 2022 Mrs X wrote to the Council several times requesting information about the budget. The Council informed Mrs X it was completing additional enquiries about the provision but would backdate any provision to the date of the order. It asked her for copies of the tutor’s qualifications to enable it to ensure they were suitably trained. Mrs X provided the information in early September 2022.
28. In late September 2022 Mrs X complained to the Council. She told the Council it had failed to pay her Y’s updated personal budget after it had sent Y’s amended final EHC plan.
29. The Council responded in mid-October 2022. It said it was considering the personal budget to ensure it was appropriate. It said it would contact Mrs X once a decision was made.
30. Mrs X remained dissatisfied and requested a stage two response in late October 2022.
31. In late November 2022 the Council wrote to Mrs X and told her it had agreed the personal budget. It requested invoices from the date the EHC plan was finalised in June 2022 to allow it to reimburse costs.
32. The Council responded to Mrs X’s complaint at stage two of its process 43 working days after the request in December 2022. The Council:
• apologised for failing to organise Y’s personal budget following the SEND tribunal’s order;
• said any funding for services identified in the order would be backdated;
• explained it had been delayed in sending the funding for the personal budget because it had a responsibility to review the commissioning costs for the services Mrs X had found to ensure these were appropriate; and
• it had completed its checks and the Council had informed Mrs X it would make the funding available for the personal budget.
33. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us. Mrs X said the Council paid the full backdated payment in mid-January 2023.
34. In response to our enquiries, the Council said:
• Mrs X provided a summary of the costs, but not a full breakdown. This meant the Council was unable to progress the matter more quickly and led to delay;
• it was in the process of reviewing its personal budgets policy to ensure example acceptable timescales are included; and
• its SEND service had received additional training about requests for personal budgets.

Analysis

Personal budget

35. The Council issued Y’s final EHC plan five weeks after the tribunal’s order. This is within timescales and is not fault.
36. Once the final EHC plan was issued, the Council was obligated to deliver the content of the plan to Y. The Council should have decided when it issued the final EHC plan whether to pay the updated personal budget, or to meet the cost of the provision in a different way. The Council did not agree the personal budget until five months after the final EHC plan was sent. Whilst the Council was undertaking due diligence regarding the provision commissioned by Mrs X, there was still delay in agreeing the budget to meet Y’s provision. The Council accepted fault and apologised to Mrs X for the delay.
37. However, because Mrs X paid the cost of Y’s provision herself, Y received the provision she was entitled to despite the Council’s delay. Therefore, Y did not experience an injustice because of the Council’s actions, but Mrs X did. The fault caused Mrs X distress and uncertainty about whether the Council would pay the personal budget to meet the cost of Y’s provision and whether she could continue to meet the cost of the provision herself until the Council reimbursed her.
38. The Council has now paid Mrs X the backdated payment. The Council explained its SEND officers have undertaken additional training regarding personal budgets and said it will update its policy to reflect typical timescales for agreeing personal budgets. These are appropriate actions; however, they do not go far enough to remedy the injustice caused.

Complaints process

39. The Council responded to Mrs Y’s stage one request in 21 working days. Whilst this is a day longer than the Council’s complaints policy allows, it did not cause Mrs X a significant injustice.
40. The Council sent the stage two response 43 working days after Mrs X’s request. This is against the Council’s policy and is fault. The fault caused Mrs X frustration and uncertainty about whether the Council was acting to address her concerns.

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Agreed action

41. Within one month of the final decision, the Council agreed to:
• pay Mrs X £300 to recognise the frustration and uncertainty it caused her due to the delay in agreeing Y’s personal budget; and
• write to Mrs X and apologise for the frustration and uncertainty it caused her by the delay in sending a stage two complaint response.
42. The Council will provide us with evidence it has complied with the above actions.

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Final decision

43. I ended the investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the faults.

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Investigator's decision on behalf of the Ombudsman