Summary: Ms F complains the Council did not properly deal with her request for a personal budget to deliver some of her son’s SEN provision in May 2022. We have ended our investigation. This is because Ms F used her right to appeal to the SEND Tribunal, which puts it out of our jurisdiction.

The complaint

1. Ms F complains the Council did not properly deal with her request for vision therapy for her son as part of his SEN provision in May 2022. In particular, that it failed to:
• Advise her that it had agreed to fund the provision.
• Issue a decision about a request for a personal budget.
• Give her information when she agreed to the council paying the provider directly.
• Issue a revised EHC plan which included the provision.
• Offer an alternative solution to her organising the provision herself.
• Discuss the therapy at the following annual review.
2. Ms F says this has caused her travel costs, inconvenience, significant distress affecting her health, and distress to the whole family.
3. Ms F wants the Council to:
• Review its personal budget policy and process.
• Reimburse her for the entire cost of delivering the provision on the Council’s behalf.
• Apologise to her and her children.
• Make a payment to acknowledge the time and trouble she has been put to by having to liaise with the therapy provider, unnecessarily appeal to the Tribunal about the vision therapy which was already being funded, and make a complaint.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. 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.
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)
9. 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

10. I spoke to Ms F about his complaint and considered the information she and the Council sent and:
• The SEND code of practice: 0 to 25 years
• The Special Educational Needs (Personal Budgets) Regulations 2014 (“the Regulations”)
11. Ms F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

12. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
14. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
15. The courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
16. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
17. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

Personal budgets for SEND provision

18. A personal budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC plan. One way that councils can deliver a personal budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC plan themselves.
19. A child’s parent or the young person has the right to request a personal budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC plan. They may also request a personal budget during a statutory review of an existing EHC plan.
20. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

What happened

21. Ms F’s son, M, has special educational needs and an EHC plan. In May 2022 Ms F asked the Council for a personal budget so that she could arrange vision therapy for M out of school.
22. There was an annual review of M’s EHC plan on 6 March 2022. Ms F requested a personal budget for vision therapy. The Council issued a final EHC plan on 30 May 2022. The plan did not specify any vision therapy. The Council’s cover letter to Ms F says: “[the request for vision therapy] and the most recent prescription of 12/5/2022 and the report by [Optometry] has been forwarded to the Sensory Consortium for review. Their review and the reports and personal budget request will be considered at the EHC panel when the response from Sensory Consortium has been received. I will notify you when this request will be submitted to panel.” Ms F asked the Council when it would make a decision. On 30 June an officer replied she would let Ms F know.
23. Ms F chased the Council for a decision over the next few months. She appealed to the SEND Tribunal on 30 August; the grounds of appeal included a request for vision therapy to be included in the plan.
24. The Council replied to Ms F on 6 October that the funding for vision therapy had been agreed by its EHC panel on 6 July. It would make the funding available to the School so the provision could be put in place.
25. Ms F responded that the school could not provide the therapy in school. She had arranged for it to be delivered out of school initially from October 2022 until February 2023. The Council offered to pay the provider directly (rather than as a direct payment to Ms F). Ms F agreed.
26. Ms F then chased the Council over the next few months to pay the provider’s invoice, which it did in February 2023.
27. In December 2023 Ms F came to the Ombudsman. She said she had recently realised there was a problem with the way the Council had set up the personal budget. It was not set out in the EHC plan as it should be and the Council had not given her any information about personal budgets when she agreed to the arrangements. Ms F says that leaving her to make the arrangements with the provider had caused her inconvenience when the invoices were not paid by the Council. In addition, the Council was not funding travel costs to the therapy. She had not complained to the Council as there was a right to ask for a review of a refusal to provide a personal budget.
28. We asked the Council to consider Ms F’s complaint. On 29 February 2024 it declined to investigate as the EHC plan was at Tribunal and matters that were subject to appeal were not covered by its complaint procedure. The Council said that, as personal budgets were determined by the provision agreed in the EHC plan, it was not possible to agree the personal budget until the plan was agreed following the appeal.
29. The Council told us that, as a gesture of good will, it would re-imburse Ms F for the travel at a rate of £0.45p per mile. In response to my draft decision, Ms F said that she would also need to be reimbursed for transporting M to in clinic progress evaluations. This is for the Council and Ms F to discuss.

My findings

30. When Ms F asked for the personal budget the Council should have made a decision whether to agree to this and written to Ms F about this. This would have allowed her to ask for a review of its decision. I have seen no evidence the Council did this. But in any case, the Council could not have agreed to a personal budget for vision therapy as it was not provision set out in M’s EHC plan.
31. Instead, in October 2022 the Council advised Ms F that it had agreed to make the vision therapy provision by funding it directly, but Ms F made all the arrangements.
32. I have ended my investigation. This is because after the EHC plan was issued on 30 May 2022 Ms F appealed to the SEND Tribunal and her appeal included a request for vision therapy to be included in M’s SEN provision. As set out in paragraph 5, this puts the matter out of our jurisdiction as the law says we cannot investigate a matter that has been appealed.
33. Although there is no appeal right against a decision not to provide a personal budget or direct payment, the Tribunal can determine the special educational provision which a personal budget would fund.
34. Ms F says she had to include vision therapy in her grounds of appeal as, although the Council had agreed to provide it, it had not issued an amended EHC plan to reflect this. But this does not bring the matter into our jurisdiction.

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Final decision

35. I have discontinued the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman