Summary: We will not investigate Ms X’s complaint about the Council's decision to refuse her request for direct payments to secure some of the provision listed in her child’s Education, Health and Care Plan. There is insufficient injustice and we cannot achieve the outcome Ms X wants.

The complaint

1. Ms X complains the Council has refused her request for a personal budget and direct payment to secure provision in her child’s Education, Health and Care Plan. She also complains the Council gave her misleading information about who would consider her request. She wants the Council to agree to her request for direct payments.

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The Ombudsman’s role and powers

2. 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
• we cannot achieve the outcome someone wants.

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

3. 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.

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. 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 (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 or part of the provision in the EHC Plan themselves.
7. Ms X’s child, Y has an EHC Plan. During an annual review, Ms X requested a personal budget and direct payment to enable her to commission the therapy provision herself. The Council refused her request. Ms X has since gone on to appeal to the SEND tribunal about the provision in the plan.
8. Ms X says the Council is currently commissioning her preferred therapy provider and her child is receiving the provision. However, she is concerned the Council may change the provider in future. She says the Council has not followed its process for considering personal budget requests or responded to her request for a review of the decision. She wants the direct payment to commission the provision herself, to ensure the current provider continues to deliver her child’s provision.
9. We will not investigate this complaint. Ms X’s child is currently receiving the therapy provision in their EHC Plan. Any fault in how it responded to her personal budget/ direct payment request has not caused her child an injustice. We cannot consider a complaint about what may or may not happen in the future.
10. Her child is receiving the provision, and the Council has told her it will review its personal budget decision during the appeals process. Councils have discretion whether to agree to personal budget requests and so we could not require the Council to agree to Ms X’s request. An investigation cannot achieve the outcome Ms X wants.

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Final decision

11. We will not investigate Ms X’s complaint because any fault in how the Council responded to her personal budget request has not caused a significant injustice and we cannot achieve what she wants.

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Investigator's decision on behalf of the Ombudsman