Summary: Mr X complains the Council did not set a suitable personal budget to deliver special educational provision in his son’s (Y’s) Education, Health, and Care plan, failed to confirm his agreement to the personal budget and delayed reviewing the amount. We find fault which caused Mr X avoidable uncertainty, distress, and inconvenience. The Council should apologise, make a symbolic payment to Mr X, and provide staff reminders.

The complaint

1. Mr X complains the Council:

a) Failed to provide a suitable personal budget to deliver special educational provision in his son’s (Y’s) Education, Health, and Care (EHC) plan dated February 2022.

b) Failed to confirm his agreement to the personal budget amount in Y’s EHC plan.

c) Delayed reviewing Y’s personal budget despite his repeated requests.

2. Mr X says the Council’s actions caused him uncertainty and distress about the additional costs of arranging Y’s special educational provision. He says he also went to time and trouble trying to resolve his complaint.

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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. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I considered information provided by Mr X and discussed the complaint with him. I also made enquiries with the Council and considered its response and evidence provided.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before reaching a final decision.

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What I found

Law and guidance

8. A child with special educational needs may have an Education, Health and Care Plan (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. Section F includes the special educational provision required by the child or young person. Section J should provide detailed information about any Personal Budget to be used to secure the provision. It should also set out the arrangements in relation to Direct Payments.
9. 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 2014).
10. A personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC plan where the parent is involved in securing the provision. (Para 9.95 SEND Code of Practice 2015)
11. A direct payment is a is an actual amount of money that a parent or young person would receive to arrange and pay for the special educational provision in the EHC plan. The local authority must ensure that the amount of direct payment is sufficient to secure the agreed provision. If a direct payment is not set at a suitable level, it must be reviewed and adjusted. (Section 10 (1) SEN (Personal Budget) Regulations 2014) and (Para 9.119 SEND Code of Practice 2015)
12. The Child’s parent or young person should confirm their agreement to the personal budget amount. Where appropriate this must include their agreement in writing, of the conditions of the receipt of the direct payment. (Section 9.103 SEND (Personal Budget) Regulations 2014)
13. Councils must consider a request for a review of the personal budget for special educational provision during an assessment or review of the child’s EHC Plan. (Section 44, Children and Families Act 2014)
14. A recipient of a personal budget:
• May also make a request for the local authority to review the making and use of direct payments and the local authority must then consider whether to carry out a review. (Sections 4 (a) and (b) SEN (Personal Budget) Regulations 2014)
• Following the review the local authority may increase, maintain, or reduce the amount of the direct payments. (Section 5 (b) SEN (Personal Budget) Regulations 2014)

Summary of key events

15. Mr X’s son (Y) has special educational needs (SEN) and has had an Education, Health, and Care (EHC) plan for many years.
16. The records show Y had provision in his EHC plan for Applied Behaviour Analysis (ABA) since September 2021. Mr X subsequently appealed the hours at the SEND tribunal, and it was increased in January 2022.
17. The Council then issued Y’s final EHC plan in February 2022. This did not include details of the personal budget for Y’s ABA provision. The records also do not show any further Council correspondence to Mr X with a breakdown explaining the personal budget or confirming his agreement with the amount.
18. In July 2022, the Council completed Y’s annual review. The annual review record mentions a change in Y’s ABA tutor and the continued need for the ABA provision to achieve Y’s learning outcomes.
19. The annual review record does not mention any request by Mr X to review the personal budget. Mr X said this was because he did not know there was an issue at the time.
20. Mr X said in September 2022, following a subject access request to the Council he discovered the direct payments did not include the ‘on-costs’ of employing Y’s ABA tutors. These are additional costs incurred in directly employing the tutors including national insurance, liability insurance, holiday pay and payroll fees.
21. The records show the Council set Y’s personal budget for the ABA provision at £33,250 per year. However, Mr X calculated the amount should have been approximately £41,000 per year to include the on-costs.
22. Mr X said he believed the Council was aware of the on-costs because it had access to Y’s direct payment account, he had uploaded invoices which mentioned the costs and it was also aware of the change of tutors from the July annual review.
23. Mr X said he had to pay the on-costs shortfall from his personal savings from September 2022 to ensure Y continued to receive the provision while he resolved the issue with the Council.

Mr X’s complaint and the Council’s responses

24. In mid-February 2023, Mr X wrote to the Council to complain about the issues set out at paragraphs 20 and 21 (above).
25. In early March 2023, Mr X complained again that:
• The personal budget should be increased to cover the on-costs.
• The Council should make a backdated payment to cover the shortfall in on-costs since September 2022.
26. In its stage one response, the Council:
• Acknowledged Mr X had incurred significant on-costs as part of Y’s ABA provision. However, this was because he had entered a direct employment relationship with Y’s ABA tutors.
• Said Mr X had agreed the personal budget amount which was set at a suitable level to secure the ABA provision and was in line with similar cases. It was therefore unwilling to make any adjustment or award backdated payments.
• It would consider any representations about the personal budget at Y’s next annual review in Summer 2023.
27. In its stage two response, the Council reiterated its earlier position. It also said Mr X had not made a formal request for the personal budget to be increased at Y’s annual review in July 2022. But it would consider it at the next annual review in Summer as mentioned previously.
28. Unhappy with the Council’s response, Mr X approached the Ombudsman in July 2023.

Council’s response to our enquiries

29. The Council:
• Accepts it failed to include details of Y’s personal budget in his final EHC plan. It acknowledges this was an oversight on its part.
• Does not believe it delayed reviewing Y’s personal budget as it considered the issue at Y’s annual review in Summer 2023.
• Said it was not aware its initial personal budget calculation did not include on-costs until the annual review decision in August 2023.
• Agreed to pay all on-costs incurred between September 2022 until the annual review decision in August 2023.
• Confirmed it has sent Mr X the full refund and increased the weekly direct payments to reflect the on-costs moving forward.
30. Mr X has also confirmed the Council’s refund and correction of the future direct payment amount.

Was there fault and did it cause injustice?

i) Mr X says the Council failed to provide a suitable personal budget to meet a special provision in his son’s (Y’s) Education, Health, and Care (EHC) plan in February 2022.

31. The Council had a legal duty to provide the special educational provision specified in Y’s final EHC plan as required by section 42 Children’s and Families Act 2014, (paragraph 9). The law as set out at paragraph 11 (above) also required the Council to ensure the personal budget amount was sufficient to secure Y’s special educational provision. The evidence shows there was a shortfall in the personal budget due to the additional on-costs (paragraph 21) which the Council now accepts and has corrected. The Council’s failure to ensure the personal budget met the full costs of Y’s ABA provision is fault. This caused Mr X avoidable uncertainty, and distress when he later discovered the shortfall. This is injustice.
32. The evidence also shows the Council did not set out the ABA personal budget amount in Y’s final EHC plan. The Council also accepts this was an oversight. The Council’s failure to include the personal budget information in Y’s final EHC plan is fault and inconsistent with the guidance at paragraph 8 (above), which says this information should be included in a child’s EHC plan. It meant Mr X also would not have been aware of the on-costs issue during the July 2022 annual review and he therefore missed an opportunity to request a review at an earlier point. This also caused Mr X avoidable time and trouble in complaining to the Council to try and resolve the issue. This is further injustice.

ii) Mr X says the Council failed to confirm his agreement to the personal budget amount in Y’s EHC plan.

33. The Council told Mr X he agreed Y’s personal budget in 2022. But this cannot be correct as the final EHC plan did not mention it and there is no further record of the Council confirming the amount with Mr X after the final EHC plan was issued. This is fault and inconsistent with the law as set out at paragraph 12 (above), which requires the Council obtain agreement for the personal budget with the Child’s parent. This caused Mr X avoidable time and trouble in pursuing his complaint with the Council. This is injustice.

iii) Mr X says the Council delayed reviewing Y’s personal budget amount despite his repeated requests.

34. The Council told us Mr X did not request a review in July 2022 and it was unaware of the on-costs issue until the annual review outcome in August 2023.However, the evidence shows Mr X advised the Council about the on-costs situation from February 2023 onwards (paragraphs 25-28). In my view the Council would have been aware from this point and was then under a legal duty to review and adjust the direct payments as set out in law at paragraph 11 (above). The records show the Council did not complete the personal budget review until August 2023. The Council’s failure to identify its error and subsequent delay in review (between February and August 2023) is fault. Mr X therefore incurred personal expenses to ensure there was no interruption to Y’s ABA provision. He also experienced avoidable uncertainty and distress about the possible outcome and whether he would be reimbursed for a significant amount of money. This is injustice.

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Agreed action

35. The Council has already refunded Mr X for the personal expenses incurred during the period of personal budget shortfall identified in this statement. It has also adjusted the amount of Y’s future direct payments to reflect the on-costs. This is a partial remedy. I will make further recommendations to reflect the full injustice.
36. Within one month of my final decision, the Council should also:
• Write to Mr X and apologise for failing to include Y’s personal budget amount in his final EHC plan, failing to identify the shortfall in Y’s direct payments and delay in reviewing Y’s personal budget and for Mr X’s avoidable uncertainty, distress, and inconvenience.
• Make a symbolic payment to Mr X of £200 to reflect his avoidable uncertainty, distress and inconvenience complaining.
• Remind staff dealing with EHC plans about the need to include personal budget information (where applicable) in line with statutory guidance and to check personal budget amounts are sufficient to secure special educational provisions in EHC plans.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I find fault which caused Mr X injustice. I have made recommendations, which the Council has agreed to address the injustice caused.
39. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman