Summary: Mrs X complains the Council failed to provide direct payments on time to fund the support set out in her son’s Education Health and Care Plan (EHC Plan). We found there was repeated delay by the Council in making Y’s direct payments. We also found the Council attempted to reduce Y’s EHC Plan support without regard for its legal duties under the SEN Code of Practice. We recommended the Council apologised, made a payment to Mrs X and reviewed its processes and procedures with a view to preventing the reoccurrence of the same issues.

The complaint

1. Mrs X’s son, Y, has an Education Health and Care Plan (EHC Plan) which sets out his need for an Education Other than At School (EOTAS) package. Mrs X complains the Council failed to provide Direct Payment funds in time to pay for her son’s education. When the Council belatedly sent the required forms to her the amount of funding was significantly wrong, there was a delay in resolving the situation of around three months and the Council only acted when she complained.
2. Mrs X complained she had similar problems in 2023 and she was forced to complain again in March 2024 when the process for funding her son’s education was delayed again.
3. Mrs X had to borrow a significant sum to pay for her son’s education while awaiting the delayed Direct Payment funds and the repeated issues with funding have caused significant stress and difficulty.

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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. 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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How I considered this complaint

7. I spoke to Mrs X and considered the information she provided and the complaint she had made. I asked the Council for information and I considered its response to the complaint.
8. Mrs X 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

Personal Budgets/Direct Payments

9. 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 Education Health and Care Plan (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.

EHC Plan Provision

10. The Council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).

What Happened

11. Mrs X’s son, Y, has an EHC Plan. Y’s EHC Plan was updated at the end of March 2023. It specifies that he should receive an Education Other than At School (EOTAS) package and various other support. This includes Speech and Language Therapy (SALT) and Occupational Therapy (OT). The funding for Y’s EOTAS package is paid to Mrs X via direct payments.
12. Mrs X explained there is a need for funding to be made available at the start of September when the academic year begins. She complained that the Council did not get funding in place in time for the 2023/2024 academic year.
13. The Council explained its process. It told us, at an annual review of an EHC Plan, the package of care is discussed and the allocated officer will refer it to a funding panel to be agreed. Once a panel has agreed the funding, a direct payment form is completed and signed. It is then sent to the Council’s Direct Payments Team. This team arranges payment to be made.
14. Y’s EHC Plan is reviewed in the Spring Term each year. Although the 2023/2024 term began at the start of September 2023, the Council did not send the direct payment form to Mrs X until 20 October.
15. The Council accepted it was late processing the form. It told us the delay was caused by a shortage of staff. It stated the relevant SEN team had seven vacancies which it could not gain approval to fill. The Council stated increased demand for EHC Plans and the financial position of the Council was impacting service delivery.
16. When Mrs X received the form, it was wrong. She stated the contents bore no resemblance to what needed to be funded from Section F of Y’s EHC Plan. She stated the figures were incorrect, it did not refer to OT support, SALT support was incorrect and there was no activity budget. The form set out funding of approximately £36,000. Mrs X explained this was significantly short of the funds required to pay for Y’s education and support which, for the same period should have been around £71,000.
17. The Council told us why the funding set out on the October form was wrong. It stated Section F of Y’s EHC Plan contains over 33 hours of provision per week. However, the Council only set out funding for 28 hours as it was ‘trying to move [Y] in line with his peers’. It stated that in proposing this reduction to his direct payments, it overlooked the fact that it could not reduce the hours of support it provided to Y, as this was provision set out in an EHC Plan. Councils have a statutory obligation to provide the support that is set out in an EHC Plan.
18. The situation was significant enough to prompt the contractors who provided Y’s education to make their own concerns known to a manager at the Council. They complained that the way the Council had proposed cuts to Y’s EHC Plan did not adhere to statutory process and any changes proposed to an EHC Plan must be dealt with in accordance with the SEN Regulations. Changes must also be based on evidence of a change in needs. They stated Section F provision could not be amended to reflect the budget that the Council wished to give, the funding had to be provided to meet needs set out in Section F. They also stated, when Mrs X had raised the error, the Council initially questioned the content of Section F, rather than addressing its mistake and remedying it. Amongst other things, the contractors expressed concern about the affect on Y’s parents who were already exhausted from caring for a child with special educational needs and they explained how the delay in funding affected them as contractors, as they needed to be paid to meet their own financial commitments.
19. Mrs X told us that she was worried that she would lose the team supporting Y if she could not pay them. So, she had to borrow money from relatives to ensure Y’s education providers were paid in the meantime.
20. It took the Council until 20 December 2023 to reissue the corrected form to Mrs X. The Council says this further delay was again due to staff shortages and capacity within the relevant team. Mrs X signed the revised form and returned it immediately. However, due to the Christmas period, it was not until January 2024 that the Council made the payment. It was only then, when the funds were released, that Mrs X could repay the relatives who had lent her a considerable amount to pay the team who were educating Y.

Mrs X’s Complaint

21. Mrs X complained to the Council about the delay in mid-November. The Council states its aim is to respond within 10 working days.
22. She complained again on 1 December because she had not received a response within the timescales set out in the Council’s complaints process. The Council responded at the end of December.
23. Mrs X asked for the complaint to be escalated on 8 January 2024 when, at that time, the required payment had not been made. The Council sent a further response on 24 January 2024.

Repeated problems with making Direct Payments

24. In response to Mrs X’s complaint the Council acknowledged her concern that problems with funding payments was a recurring issue. It accepted that it upheld a previous complaint from Mrs X in January 2023 about a similar delay in making direct payments for Y’s care and support and that she had to make a complaint in order to get the correct payment made.
25. Furthermore, Mrs X had to make another complaint in March 2024, shortly after this complaint was dealt with. She complained that despite many emails being sent to the officer dealing with Y’s case, they had received no replies and a further funding payment was due in March. The Council upheld this further complaint. The Council stated, unfortunately, when a member of staff left the team, Y’s case was not reallocated to another officer. This meant, Mrs X’s correspondence went unanswered and when a further payment needed to be made in March 2024, this did not happen until Mrs X complained. The Council stated a manager actioned this urgently in this instance to ensure there was no break in provision for Y. It also allocated a new officer to deal with future payments.

Was there fault by the Council

26. There was fault by the Council.
27. The Council significantly delayed sending the required forms to Mrs X to arrange direct payments for Y’s education for 2023/2024. To compound this, when the Council sent the required form, the funding it set out was wrong. It was far less than that needed.
28. The Council’s explanation of the reasons for this are concerning. The Council appears to have proposed significant cuts to the hours of support that Y had based on what it was paying to support his peers. Firstly, it should be recognised that each child is an individual, and their needs are determined via a needs assessment. Secondly, the Council’s approach ignored the fact that Y’s direct payments were to fund support set out in an EHC Plan. Councils have a legal obligation to secure the provision set out in Section F of an EHC Plan. It was completely inappropriate for the Council to ignore the provision set out in the plan and for it to propose cuts outside of the EHC Plan review process. It was particularly poor that the Council ignored its statutory duties when it was already significantly late in making the required payments. To compound the Council’s fault further, it took almost three months to correct the situation.
29. The Council told us that the initial delay, and the delay in correcting the direct payment form were largely due to staffing shortages. However, given Y’s needs were already determined and his EHC Plan had been finalised in March 2023, there was no good reason why the Council proposed a different level of funding. The Council’s legal duty to meet EHC Plan provision should be clearly understood by its staff. The actions taken in Y’s case suggest this was not the case.
30. I am concerned that this was not the first time that the Council had failed to deal with Y’s direct payments on time and that the Council caused a delay in January 2023 and again in March 2024. This suggests the Council’s processes themselves or the management and oversight of them is flawed. I note the Council advised us the team has numerous unfilled vacancies which appears to have contributed to what went wrong in Y’s case.
31. I also note the Council did not respond to Mrs X’s complaint in the required timescales.

Impact to Mrs X

32. As a result of the delays and errors made by the Council Mrs X was without funding for Y’s education for the whole of the first term of 2023/2024. The delays and errors clearly caused significant additional stress and worry for Mrs X and her family and caused them practical financial difficulties. Mrs X was concerned to ensure the team of professional providing Y’s education and support were paid, so that Y’s education and support would continue. The stress and financial pressures placed upon Mrs X and her family were avoidable.

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Agreed action

Within four weeks of our final decision:

33. The Council should send Mrs X, and Y a written apology for the repeated failure to properly make direct payments to fund his Education Health and Care Plan support. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
34. The Council should make a payment to Mrs X of £1000 to recognise the stress and additional time and trouble she was put to as a result of the significant delay in making Y’s direct payments.

Within six weeks of our final decision:

35. The Council should provide a report to a relevant overview and scrutiny committee and the Lead Council Member for Children, Families and Education. The report should consider the delays in making direct payments for children with Education Health and Care Plans and the impact of current staff shortages and vacancies. It should make recommendations aimed at avoiding a reoccurrence of the repeated faults we have identified. The report should also take account of our Focus Report; Parent Power: personal budgets in Education Health and Care Plans.
36. The Council should write and circulate a briefing note to all relevant staff to:
• share a copy of our final decision and discuss and identify learning.
• re-enforce the need to adhere to and not deviate from the processes set out in the SEN Code of Practice.
37. The Council should review whether any staff and/or managers in the relevant SEN teams require training to ensure they understand the Council’s duties under the SEN Code of Practice.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. There was fault and injustice. I have completed my investigation on the basis the Council takes the action agreed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman