Summary: There is no fault in the Council’s decisions around funding Y’s night care, the direct payment rate or funding for carers’ training. The Education Health and Care Plan did not include details of the personal budget for Y in Section J and this was fault. The Council will amend the Plan to include the personal budget, apologise for the avoidable confusion and uncertainty and make Ms X a symbolic payment of £100.

The complaint

1. Ms X complained about amendments the Council made to her son Y’s Education, Health and Care (EHC) Plan following recommendations by the Special Educational Needs and Disability (SEND) Tribunal. She complained about:
1. A decision to fund a sleep-in carer rather than a waking one;
2. Making her responsible for training carers; and
3. The funding rate for carers which she says is not enough to attract and retain staff.
2. Ms X also complained the Council refused additional funding for a carer to accompany Y on his journey to and from school.
3. Ms X said this caused avoidable distress and a loss of funding to meet Y’s care needs.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. Our service is free, but we use public money carefully. We do not start or continue an investigation if we decide it would be reasonable for the person to ask for a council review or appeal. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. 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)
8. 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

9. I have investigated the complaints in paragraph one, but not the complaint in paragraph two. Ms X provided an exchange of emails with council officers about her application for home to school travel assistance, but these emails are not a formal complaint, appeal or responses to a complaint/appeal. The Council’s decision on transport funding was made in October 2023 and the outcome was Y was eligible for home to school travel assistance and the Council would fund a taxi and provide a (council-arranged) escort. Ms X seeks additional funding for the carers she has already engaged to meet Y’s social care needs, to escort Y in the taxi. The Council declined this request. It is reasonable for Ms X to request an out of time appeal using the two-stage appeal process: Travel Assistance Policy for learners aged 16 to 25 - Surrey County Council (surreycc.gov.uk) Alternatively, she can make a formal complaint to the Council to which the Council has an opportunity to respond.

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How I considered this complaint

10. I considered the complaint to us, the Council’s response to the SEND Tribunal’s recommendations and documents set out below. I discussed the complaint with Ms X.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making this final decision.

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What I found

Relevant law and guidance

12. A child or young person with special educational needs (SEN) 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 including:
• Section D: Social care needs related to the child or young person’s SEN.
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN.
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.
13. 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. Direct payments are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
14. The law says direct payments must be made at a rate the authority estimates to be equivalent to the reasonable cost of securing provision. (Health and Social Care Act 201, section 57(4).
15. Where the Tribunal orders a council to continue and amend an EHC Plan, the council shall continue to maintain the Plan and amend it within five weeks of the order being made (SEND Regulations, Regulation 44(h)

What happened

16. Y has physical and learning disabilities and has an EHC Plan. Ms X appealed the contents of all sections of the Plan. Sections D and H (social care needs and social care provision) are relevant to her complaint to us.
17. The Tribunal made the following recommendations in a decision dated 19 October 2023 in relation to social care:

School days:

Two carers for two hours in the mornings between six and eight am

Two carers for four hours in the evenings

One carer during the night.

Weekends and holidays:

Two carers for 12 hours during the day

One carer during the night.

18. There is no recommendation from the Tribunal in relation to a carer escorting Y on journeys to and from school. Nor is there a recommendation about carers’ training (because these matters were not raised in the hearing)

The Council’s response to the Tribunal’s recommendations

19. The Council wrote to Ms X in November 2023 setting out each of the Tribunal’s recommendations in relation to Section H and its response to those recommendations. I have underlined the parts of the Council’s decision which Ms X says depart from the Tribunal’s recommendations:
• It accepted the recommendation it was essential for Ms X to have additional support at night and in the morning to avoid burn-out.
• It partially accepted the recommendation Y required two carers during the day (between six and eight am and four and eight pm) and one carer at night (between eight pm and six am). The night carer would be a sleep-in carer.
• It partially accepted the recommendation that Y required two carers between eight am and eight pm during weekends and holidays and one carer at night (eight pm to eight am). The night carer would be a sleep-in carer.
• It accepted the recommendation that there should be two carers for term-time mornings between six and eight am.
• The Council said Ms X was responsible for training with input from health professionals.
• The personal budget was:
1. 30 hours a week for 39 weeks (term time Monday to Friday) at two to one carers;
2. 60 hours a week for 13 weeks (school holidays Monday to Friday) with two carers;
3. 24 hours a week for 52 weeks (weekends) with two carers;
4. Seven sleep-in duties a week;
5. £135 employers’ insurance.
20. The Council sent us a personal budget support plan. It is undated, but it appears to have been drawn up after the Tribunal hearing, possibly in November 2023. It gives a breakdown (including figures) of the personal budget and direct payment funding for Y’s social care.

Y’s EHC Plan dated February 2024

21. Ms X sent us a final amended EHC Plan dated 19 February 2024. She said this was the first Plan she had received since the Tribunal’s decision. It sets out Y’s social care needs in Section D and in Section H, social care provision (this is the same as in the Council’s letter of November 2023 summarised in paragraph 19). It says Ms X can instruct the direct payment carers to assist Y to access the community for stimulation and socialisation. Section J (details of the personal budget) is blank.
22. Ms X told us she had not received a copy of the personal budget support plan the Council has sent us (referred to in paragraph 20). She shared with us details of the monthly direct payments the Council has made between October 2023 and the end of January 2024.

Was there fault and if so, did it cause injustice?

The post-tribunal EHC Plan

23. The Council has not shared details of the personal budget support plan with Ms X as she told us she had not received a copy of the document the Council sent us. And Y’s EHC Plan of February 2024 does not contain details of the agreed personal budget and direct payment. This is fault because the EHC Plan should contain full details of the personal budget in Section J and shouldn’t be blank.
24. This has caused Ms X avoidable confusion and uncertainty about the funding available to meet Y’s social care needs following the Tribunal’s recommendations.
25. The Council was supposed to issue a final amended Plan within five weeks of the Tribunal’s order, so no later than 24 November. Although the Council wrote to Ms X with its response to the Tribunal’s recommendations in November 2023, it did not issue a final amended EHC Plan until 19 February 2024. This was a delay of three months, was not in line with Regulation 44 of the SEND Regulations and was fault causing avoidable confusion. Ms X has had direct payment funding though (as evidenced in the payment information she has provided) so there is no financial loss caused by the delay in issuing an amended Plan.

A decision to fund a sleep-in carer rather than a waking one

26. The Tribunal did not record in its decision that it had heard any evidence from Ms X about the need for a waking carer at night. The Tribunal’s recommendation on night care did not specify whether Y required a carer to be awake all through the night or not. If this had been part of the recommendation, I would expect the Tribunal to have started it explicitly. Therefore, it follows, the Council did not have to consider this issue as it was not a recommendation. So there is no fault by the Council in deciding Y could have a sleep-in carer at night.

Making Ms X responsible for training carers

27. Ms X is the carers’ employer. She is therefore responsible for their training. This is the way the direct payment scheme works. There is no fault by the Council.

The direct payment rate

28. The law says the amount needs to be an estimate to meet the reasonable cost of care. The Council gives DP recipients £13 an hour to pay their carers. This is higher than the national living wage and would allow an amount for employer’s costs including any training. The Council has acted in line with the law in paragraph 14 and there is no fault.

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Agreed action

29. The Council will, within one month of my final decision:
1. Amend Section J of Y’s EHC Plan dated 19 February 2024 to include full details of the personal budget and direct payment. Include the breakdown set out in the personal budget support plan disclosed to the LGSCO;
2. Apologise for the avoidable confusion and distress (taking into account our guidance on apologies in section 3.2 of our Guidance on Remedies); and
3. Make Ms X a symbolic payment of £100 to reflect this.
30. The Council will provide us with evidence it has complied with the actions in paragraph 29(a) to (c).

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Final decision

31. There was no fault in the Council’s decisions around funding Y’s night care, the direct payment rate or funding for training. The Education Health and Care Plan did not include details of the personal budget for Y in Section J and this was fault. The Council will amend the Plan, apologise for the avoidable confusion and uncertainty and make Ms X a symbolic payment of £100.
32. I completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman