Summary: We found fault in the way the Council carried out the Personal Budget process for the complainant’s (Miss X) son (Y). This fault, however, did not cause significant injustice to Miss X or Y. The Council has agreed to carry out some service improvements in the way it considers requests for Personal Budgets for children with Education Health and Care Plans.

The complaint

1. Miss X says the Council unreasonably refused when she asked for a Personal Budget for Y. She says the Council’s failure to grant a Personal Budget to Y for the last three years caused her injustice as she had to fund extra provision herself.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

5. I spoke with Miss X and considered the information she provided.
6. I considered the information provided by the Council.
7. I referred to our Focus Report “Parent Power: personal budgets in EHC plans” published in November 2023.
8. Miss 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

Legal and administrative framework

9. The council has a duty to secure special educational provision included in an EHC Plan for the child or young person. (Children and Families Act S.42)
10. Educational provision would normally be delivered during school day. If the educational provision can only be made outside the school hours, that should be clearly set out in Section F of the child’s EHC Plan as special educational provision. This is often called “waking day curriculum”.
11. A personal budget is money identified by a council to deliver provision set out in an EHC Plan where the parent or young person is involved in securing the provision.
12. Councils must provide parents and young children with information on:
• The provision for which a personal budget may be available;
• Details of organisations that provide advice and assistance on personal budgets;
• The conditions which must be met before direct payments may be made;

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 3)

13. A council must consider a request for a direct payment if a child’s parent made it at any time during the period in which the draft EHC Plan is being prepared or reviewed. (Special Educational Needs (Personal Budgets) Regulations 2014 regulation 4)
14. Where a council refuses direct payments it must:
• Tell the child’s parents in writing of its decision, providing the reasons and informing of the right to ask for a review;
• Carry out a review of its decision, if asked to do so, considering any representations made by the child’s parent;
• Tell the child’s parent in writing of the result of the review, giving reasons.

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 7)

15. Councils must consider each request for a personal budget on its individual merits. It can refuse a personal budget if the sum is part of a larger amount and disaggregation of the funds for the personal budget would have an adverse impact on services provided or arranged by the council for other EHC Plan holders, or it would not be an efficient use of the council’s resources.

What happened

16. At the beginning of November 2023 the Council held Annual Review for Y’s EHC Plan. Following this review the Council decided to amend the plan.
17. Miss X asked for a Personal Budget for Y at the end of November. She said it would address the shortfall in Y’s education and Miss X’s loss of earnings.
18. In mid-December 2023 the Council responded to Miss X’s Personal Budget request. The Council said:
• Personal Budgets and direct payments were not an automatic right;
• It would not grant direct payments retrospectively;
• Y’s school had been delivering his special educational provision;
• The Council had already considered and addressed Miss X’s complaint about the lack of education in the autumn term of 2022;
19. In its response to Miss X’s request the Council also provided a link to its Local Offer with the information about Personal Budgets and direct payments. For personalised information the Council told Miss X to contact the special educational needs and disabilities (SEND) case officers.
20. At the beginning of January 2024 the Council issued Y’s final amended EHC Plan. Section F did not include any provision which would need to be delivered out of school hours. Miss X did not appeal Y’s EHC Plan.
21. A few days after issuing Y’s final EHC Plan Miss X told the Council Y needed a Personal Budget to meet his individual and developing needs. She said because Y did not have a Personal Budget, Miss X had to bear costs of the necessary sensory and educational resources, including specialist therapies.
22. A month later Miss X chased the Council’s response to her correspondence.
23. The Council responded at the end of March 2024, apologising for not responding to Miss X’s correspondence from the beginning of January 2024. The Council considered it to be a review request. The Council confirmed its position on Miss X’s Personal Budget request saying:
• The Council secured delivery of Y’s special educational provision through his school placement.
• Provision included in Section F would normally be delivered during school day. Delivery of any provision outside the school hours would need professional recommendation. This was not the case for Y.
• The provisions which Miss X asked the Council to fund through a Personal Budget are not included in Y’s EHC Plan.

Analysis

24. As explained in paragraph three of this decision, when considering complaints we look at the process rather than merits of the councils’ decisions.
25. Having reviewed the Personal Budget process I found the Council failed to:
• Tell Miss X of her right to ask for a review of the Council’s decision refusing a Personal Budget for Y;
• Consider Miss X’s correspondence from the beginning of January 2024, which the Council correctly identified as a review request, within reasonable timescales. We would normally consider four to six weeks as enough to take a Personal Budget decision and respond. The Council’s delay, therefore, amounted to over five weeks.
26. The Council’s failings listed above are fault. This fault did not, however, cause injustice to Miss X and Y for the following reasons:
• Miss X complained about the Council’s refusal to give a Personal Budget to Y and the Council considered her complaint as a review request. Despite not getting advice Miss X exercised her right to ask for a review, so there was no injustice.
• In its response to Miss X’s Personal Budget review request the Council confirmed its previous position refusing a Personal Budget for Y. The Council’s reasons for its decision were legitimate therefore the delay of five weeks in communicating this decision to Miss X did not have a significant impact.
27. As I have identified fault in the way the Council carried out the Personal Budget process for Y, I will recommend some service improvements.

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Agreed action

28. To address the faults identified during this investigation, we recommend the Council complete within three months of the final decision the following:
• Remind all the staff in the Special Educational Needs and Disabilities team about the Council’s duty to tell parents about their right to ask for a review if the Council refuses Personal Budget for their child.
• The Council will consider introducing internal guidance on the timescales to consider Personal Budget requests and to carry out reviews.

The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I uphold this complaint. I found fault in the way the Council carried out the Personal Budget process for Y. This fault, however, did not cause significant injustice to Miss X or Y. The Council has accepted my service improvement recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman