Summary: The Council asked Ms X to pay back several hundred pounds from her daughter’s person budget, as it says Ms X could not evidence how all the money was used. Ms X repaid this money to the Council but complained to the Ombudsman. The Council’s communication with Ms X regarding her daughter’s personal budget and her complaint was poor. In recognition of the frustration caused to Ms X by the Council’s faults, the Council has agreed to apologise, pay Ms X £150 and carry out service improvements.

The complaint

1. Ms X complains the Council:
1. Failed to secure all the provision in her daughter’s EHC Plan between March and December 2021;
2. Wrongly asked her to repay money in 2022 that she used from her daughter’s personal budget to pay for provision in her Education, Health and Care (EHC) Plan; and
3. Failed to investigate her complaints properly.
2. Ms X said the Council’s actions have wrongly caused her financial loss, frustration and uncertainty.

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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. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we do not question whether the decision was right or wrong, regardless of whether the complainant disagrees with the decision the organisation made.
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 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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What I have and have not investigated

7. 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)
8. I have decided not to investigate complaint 1a, as these events happened too long ago and there is no good reason that Ms X did not bring these matters to the Ombudsman sooner.
9. I have investigated complaints 1b and 1c. Parts of complaint 1b extend back to 2021. I have investigated some of these earlier events as it is not possible to assess the 2022 complaint regarding the sum of money the Council is seeking from Ms X without looking at these past events.

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How I considered this complaint

10. I considered the information provided by Ms X and the Council.
11. I considered the relevant law and guidance as set out below.
12. I considered our Guidance on Remedies.
13. I considered comments made by Ms X and the Council on draft decisions before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plans (EHC Plans)

14. A young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them.
15. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

Education Other than at School (EOTAS)

16. Section 61 of the Children and Families Act allows councils to arrange for special educational provision to be made otherwise than in a school. We refer to this as EOTAS in this decision statement.

Personal budgets and direct payments

17. A personal budget is a notional amount of money that would be needed to cover the cost of making the provision specified in someone’s EHC Plan. A council can consider making a direct payment to the parent, or other nominated person, from the personal budget so they can organise the provision or parts of the provision themselves.
18. Councils must provide written notice of the direct payment agreement and should issue this alongside the draft EHC Plan. The child’s parent or the young person should then confirm their agreement of the budget in writing.
19. The Code says the final allocation of funding for the personal budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out in Section J of the EHC Plan.
20. Where there is a disagreement over the special educational provision to be secured through a personal budget, the child’s parent or young person can appeal to the SEND Tribunal. (SEND Code of Practice, Chapter 9, and Special Educational Needs (Personal Budgets) Regulations 2014)

Effective complaint handling

21. The Ombudsman believes there is no difference between a formal and an informal complaint. While one service user may send in a letter headed “formal complaint”, another may tell the Council about something that concerns them. Both are expressions of dissatisfaction that require a response. (Effective complaint handling for local authorities, LGSCO, 2020)

What happened

22. Where needed for context, I refer to some events which happened more than twelve months before Ms X complained to the Ombudsman.

Personal budget – key events

23. Ms X’s daughter, Z, has mental health issues which affect her education. Z has an EHC Plan and has had an EOTAS package in place for several years.
24. Z’s December 2021 EHC Plan set out details of Z’s EOTAS package. It said, in Section F, that she required one-to-one therapy sessions and the frequency of these would be determined by her mental health practitioner. The personal budget section of the EHC Plan was left blank.
25. The Council did not send Ms X a breakdown of how the personal budget and direct payments should be used for the provision in Z’s EOTAS package, until three months later, through several different direct payment agreements and letters.
26. The Council said in one direct payment agreement from April 2022 that the personal budget would cover eighteen 1-hour psychotherapy sessions and fifty-two 30-minute psychotherapy sessions between December 2021 and December 2022.
27. In a direct payment agreement a month later, the Council clarified that nine of the one-to-one sessions should be for therapy with Z and said the other nine should be reserved for meetings with professionals.
28. Ms X signed both direct payment agreements. These retrospectively set out the direct payment plan as starting from December 2021.
29. This agreement was amended slightly over several documents and was signed by Ms X in its final form on 28 May 2022, when that academic year had almost come to an end. By that time Z had already accessed almost a year of therapy that Ms X had paid for through the personal budget.
30. In July 2022, the Council held a direct payment review. It compared invoices it had received with the amount withdrawn from the personal budget account, for all provision agreed as a direct payment. It found that since the personal budget started following the December 2021 EHC Plan, there was a £700 discrepancy between the invoices for all provision and the amount withdrawn from the personal budget by Ms X in that year.
31. Ms X disputed this and said she withdrew the money to pay Z’s psychotherapist, in line with Section F of Z’s EHC Plan. Ms X paid back this money when she was invoiced for it but raised a complaint about it.

Complaint handling – key events

32. Ms X complained to the Council in July 2022 about several matters including concerns regarding Z’s personal budget. The Council responded at stage one of the complaints process and did not uphold her complaints but invited her to discuss the complaint with them over the phone if she would like.
33. Ms X responded the following month to say she did not feel comfortable discussing the matter over the phone. She expressed dissatisfaction with the Council’s stage one response and said it had not addressed her complaint that she had been wrongly asked to repay money from Z’s personal budget.
34. Despite Ms X expressing her unhappiness with the stage one response, the Council decided not to investigate the complaint at stage two as it did not believe she had requested this.
35. Ms X complained again a few weeks later as she said she did not receive a response to her complaint. The Council responded to say Ms X had never requested a stage two investigation of her complaint, so it would not investigate her complaint any further.
36. Ms X was unhappy with this response and complained to the Ombudsman in February 2023.

Personal budget – more recent events

37. Since Ms X complained to the Ombudsman, she has been invoiced again by the Council for what it says are more withdrawals from Z’s personal budget than invoices submitted.
38. By the time of this investigation, Ms X had not raised a complaint regarding this later disputed sum. I advised Ms X she can raise any concerns about this disputed figure as a new complaint to the Council and if not satisfied, can raise this as a new matter with the Ombudsman.

My findings

Complaint 1b) The Council wrongly asked Ms X to repay money that she used from her daughter’s personal budget

39. When a child or young person has an EOTAS package and an agreed personal budget to fund that provision, then the Council must set out the details of the personal budget in the EHC Plan.
40. In this case, the Council left Z’s 2021 EHC Plan blank in the personal budget section. This was fault by the Council and caused uncertainty to Ms X about what the personal budget should be used for.
41. Following the December 2021 EHC Plan, the Council did not send Ms X a direct payment agreement to sign until three months later in March 2022. It did this through several different documents sent between March and May that year, and the information in these documents were not consistent with one another regarding the ways in which the personal budget should be used for Z’s psychotherapy.
42. The Council has accepted fault for its communication with Ms X regarding Z’s direct payment schedules in relation to the therapy in 2021 and 2022. This fault caused Ms X uncertainty about what Z’s personal budget should be used for regarding the therapy. I have recommended a financial remedy in recognition of this.
43. However the Council was not at fault for seeking reimbursement of the £700 in 2022. It did not seek this sum because of an assumed overspend on therapy - which may have been understandable due to the Council’s poor communications around this - it sought reimbursement of £700 because the total amount of all education and SEN provision Z accessed in that year did not match the amount of cash withdrawn by Ms X from the personal budget account.
44. We are satisfied that the council followed the correct processes by checking the invoices received from Ms X against the amount withdrawn from the personal budget account. There is no evidence of fault by the Council in how it considered the amount owed. The organisation followed the appropriate procedures when making this decision and I cannot therefore criticise it.

Complaint 1c) The Council failed to investigate Ms X’s complaints properly

45. Ms X expressed dissatisfaction with the Council’s stage one complaint response in September 2022 and again a few weeks later but the Council refused to investigate the complaint at stage two.
46. Five months later, Ms X complained to the Ombudsman that she still had not received a complaint response but the Council said she had never requested one.
47. As set out in paragraph 21, councils should not insist on a particular form of wording to investigate a complaint that has been made. Ms X clearly expressed dissatisfaction with the Council’s stage one response on multiple occasions but the Council refused to escalate her complaint.
48. The Council can do this if it considers it has answered all the person’s complaints at stage one. However in doing so, it should then refer the complainant to the Ombudsman if they disagree. The Council failed to investigate Ms X’s complaint at stage two and then failed to signpost her to the Ombudsman if she disagreed. The Council was at fault. This fault has caused Ms X frustration.

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Agreed action

49. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X for the injustice caused by the faults in this case;
2. Pay Ms X £150 to reflect the frustration and uncertainty she has been caused by the Council’s faults in this case;
3. Amend Z’s current EHC Plan if it still does not set out what Z’s personal budget should be used for, despite an agreed personal budget being in place; and
4. Remind its SEND staff that where a child or young person has an EOTAS package and an agreed personal budget to fund this, the details of the personal budget and what it will be used for must be included in the EHC Plan in section J.
50. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have completed my investigation. I have found fault leading to injustice and recommended an apology, a financial remedy and service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman