Summary: Mrs Y complained the Council wrongly rejected her claim for sundry expenses under the direct payments agreement regarding the personal budget for her son’s Education Health and Care plan provision. We have found fault by the Council in failing to provide clarity about the type of expenses covered and a timely response, causing injustice. The Council has agreed to remedy this by apologising to Mrs Y, making a payment to reflect the upset caused, and a service improvement.

The complaint

1. The complainant, who I am calling Mrs Y, complains about the way the Council dealt with her claim for sundry expenses relating to her son Z’s Education Otherwise than at School (EOTAS) provision in his Education Health and Care (EHC) plan. Mrs Y says the Council:

• failed to provide her with any guidance on its definition of sundry expenses when it entered into the direct payments agreement with her in September 2021;
• delayed its response to her claim for sundry expenses for the Autumn 2021 term, which she submitted in January 2022; and
• wrongly rejected some items in her claims for sundry expenses for the Autumn 2021 and Spring 2022 terms.

2. Mrs Y says she understood, in the absence of any guidance to the contrary, the term “sundries” used by the Council in the direct payments agreement, had its ordinary meaning of “various items not important enough to be mentioned individually”. She incurred the sundry expenses, which were all connected to the provision of her son’s EOTAS, in good faith.
3. Mrs Y wants the Council to:

• reimburse her for the outstanding sundry expenses;
• apologise for the comment in its complaint response 'it was reasonably self-evident that coffee shop expenses and the price of an adult spectator ticket' could not be said to be incidental to her son’s educational needs. She says this made her feel like the Council thought she was defrauding them, rather than doing everything she could to help her son engage with education;
• pay financial redress for her time and the upset caused by the Council’s responses; and
• provide parents/carers with clear guidance about what items are covered by its term “sundries”.

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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.
5. 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)
6. 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

7. I spoke to Mrs Y, read her complaint and the Council’s response to our enquiries, together with all the other information Mrs Y and the Council provided about the complaint.
8. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What happened

9. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

The direct payments agreement

10. Z has an EHC plan. In August 2021, Mrs Y and the Council entered into a direct payments agreement to enable Mrs Y to buy the goods and services agreed in Z’s plan. The agreement said:

• direct payments were to be used for the express purpose of providing goods and services identified in Z’s EHC plan;
• The Council would ensure Mrs Y had advice and support to help her manage the direct payments; and
• It would deal with her direct payments enquiries, queries or complaints in a timely manner.

11. Appendix A of the agreement set out the agreed goods and services. These included therapy sessions, mileage to a clinic and an amount of £20 a month for “sundries/resources”.

Mrs Y’s claim for sundry expenses: 2022

12. In January Mrs Y submitted her claim for costs incurred in the autumn term, including sundry expenses.
13. In April, the Council asked Mrs Y for her spring term sundry receipts so it could calculate her next payment.
14. Later that month the Council told Mrs Y it had reviewed the receipts and invoices she had submitted for costs and expenses in the autumn and spring terms. It rejected her claim for some of the sundry expenses she had incurred. It said sundry payments were to be used for items such as stationery, printer ink etc which supported Z with his learning and provision in his EHC plan. The particular expenses it had rejected were not sundries.

Mrs Y’s complaint to the Council

15. Mrs Y was unhappy with the way the Council had dealt with her claim for sundry expenses. And that it had rejected her claim, as sundry expenses for the autumn and spring terms, for six items with a cost between £2.50 and £17.50 (a total amount of £80.83). She said these items were all connected to the provision of Z’s EOTAS and incurred in good faith.
16. Mrs Y complained:

• The Council had delayed responding to the claim she submitted in January for expenses incurred in the autumn term. It did not tell her some of these items had been rejected, until after she had incurred, and submitted her claim for, the spring term expenses. If she had received a timely response, she would have known not to spend the sundries budget in the way she had in the spring term;
• The usual definition of “sundries” is various items not important enough to be mentioned individually. Her understanding was the sundries budget was for small incidentals that cropped up in the course of, or to support, Z’s education sessions. All the rejected expenses were for items supporting and facilitating Z’s Special Educational Needs (SEN) provision and education;
• She was unhappy about the amount of time she had to spend communicating with the Council about the expenses claim; and
• The Council should pay for the items it had rejected and provide her with a clearly defined list of what is and isn’t allowed within the sundries budget.

The Council’s response to Mrs Y’s complaint

17. The Council said:

• It accepted there had been a delay in its response to Mrs Y’s contact in January. This was an accidental oversight. It apologised for the delay;
• The direct payments agreement provided for payments to meet Z’s assessed needs for the purposes of his EHC plan. The meaning of sundries and resources needed to be seen in that context. Sundries was not a term customarily used in the SEN environment and was not defined;
• It accepted it could have done more to clarify what it meant by the term sundries/resources in this context. It was intended to cover the sort of resources a school might provide in the classroom. It would suggest to its SEN team they have a non-exhaustive list by way of example of what is and what is not included; and
• It did not consider the absence of a list or the delay in checking her claim for the autumn expenses caused her to suffer financial loss because some of the expenses had been rejected as outside the scope of sundries/resources. If the expenses were reasonably necessarily incurred but simply out of scope, they would still have been incurred in any event.

My analysis – was there fault by the Council causing injustice?

18. It is not our role to decide whether or not the expenses rejected by the Council were sundries. But I have looked at the process the Council followed when deciding which items were or were not considered as sundry expenses.
19. The direct payments agreement included a monthly budget of £20 for sundries/resources. But the agreement does not include any definition or guidance about what this term means. There is no evidence the Council provided Mrs Y with any guidance as to the type of items this term might include or those considered outside the scope of sundries and rejected.
20. The Council agreed to ensure parents had advice and support to help them manage their direct payments and deal with enquiries, queries or complaints in a timely way. It has accepted it could have done more to clarify what it items it intended the term sundries/resources to cover.
21. I consider the Council’s failure to provide Mrs Y with clarity about the sundries part of the personal budget was fault.
22. The Council also accepted there was a delay in responding to Mrs Y’s claim for the autumn expenses submitted in January. My view is its failure to reply in a timely way was fault.
23. Mrs Y also complained about the tone and way the Council expressed part of its response to her concerns. I understand Mrs Y was upset by this, but do not propose finding fault by the Council in the way it explained the reasons for its response to her complaint.

Impact of the Council’s faults

24. The lack of guidance and the delay did not, in my view, cause Mrs Y any financial loss. My understanding is, as she considered the expenses were necessary to facilitate Z’s education, she would have incurred them in any event.
25. But I consider the lack of clarity and delay caused Mrs Y uncertainty regarding her expenses claim. She had to spend time contacting the Council about her claim and why certain expenses were rejected.
26. I appreciate the amount involved in this complaint is relatively small. But it is an issue which may potentially affect other parents/carers, and particularly those on limited incomes for whom every additional expense makes a significant difference. I am pleased to note the Council’s suggestion about issuing guidance on claims for sundries going forward.

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Recommended action

27. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council should:
1. apologise to Ms Y for its failure to provide clarity about the type of items intended to be included in the term sundries/resources and its delay in responding to her claim for the autumn term expenses. The apology should reflect the principles about making an effective apology set out here Guidance on remedies - Local Government and Social Care Ombudsman in in our published Guidance on Remedies; and
2. pay Ms Y £150 to reflect the upset its delay and failures caused her. This is a symbolic amount based on the Ombudsman’s published Guidance on Remedies.
28. And within three months from the date of our final decision, the Council should:
1. consider what guidance it can provide to parents/carers about allowances and claims for expenses for sundries/resources and the items this term is intended to cover; and
2. tell us what changes it has made or proposes to make.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I have found fault by the Council, as set out above, causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman