Summary: Mrs X complained the Council always pays a direct payment, set out in her son, Y’s, Education, Health and Care (EHC) Plan, late. Mrs X said this places additional financial pressure on her, as well as causing her frustration and distress. There was fault in the way the Council delayed making payments and did not clearly explain what the payment was for. This frustrated Mrs X and impacted her financially. The Council should apologise, make a financial payment and provide training for its staff.

The complaint

1. Mrs X complained the Council always pays a direct payment, set out in her son, Y’s, Education, Health and Care (EHC) Plan, late. Mrs X said this places additional financial pressure on her, as well as causing her frustration and distress.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

5. I read Mrs X’s complaint and spoke to her about it on the phone.
6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. 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

Background information

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
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 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.
10. 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.
11. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
12. The council’s duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.

What happened

13. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
14. Y has additional needs. He has an EHC Plan setting out his provision. Mrs X sources the Occupational Therapy (OT) provision in the plan. The Council pays her a direct payment for this provision.
15. The Tribunal awarded Mrs X the direct payment in November 2022. The Council made payments from this date. Both payments were in arrears.
16. The Council took the case to a case decision panel in September 2023. The Council agreed the payment, and paid Mrs X on time.
17. In February 2024, the Council made another payment. This payment was to cover sessions from the end of December 2023 until March 2024.
18. Mrs X complained in April 2024. She said the Council continually paid late and was not for the correct number of weeks in a term. She said the late payments recently left without funding for 10 weeks. Mrs X asked for an annual payment.
19. The Council made another payment to Mrs X in April 2024. This was to cover sessions from mid-March 2024 until July 2024.
20. The Council issued its stage one response in May 2024. The Council explained what dates the payments were for. The Council did not agree to provide an annual payment.
21. Mrs X asked the Council to escalate the complaint in June 2024. She said four weeks in arrears was not a reasonable position. Mrs X said this was placing an unreasonable financial pressure on the family as well as distress. She said only one of the payments was in the four week timescale the Council cited.
22. The Council issued its stage two response in July 2024. The Council said it considered a four-week timescale reasonable to make payment.
23. Mrs X chased the Council for payment in September 2024. She said she had not had any payment for sessions since July. The Council made a payment in the middle of September 2024 to cover sessions from July 2024 until the start of September 2024.
24. The Council made another payment at the end of October 2024 for sessions from the start of September 2024 until December 2024.
25. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to apologise, review its policy and grant her an annual budget.
26. In response to my enquiries the Council stated some delays were due to the case having to go to panel. The Council also detailed what payments it made and when the payments covered.

My findings

27. The Council has said it has a four-week timescale for making direct payments. It has not provided a policy for personal budgets for EHC Plan provision. The only policy available covering direct payments is about social care. This policy states the money would be paid in advance.
28. The Council has not provided any reason or explanation why it considers payments in arrears acceptable. The Council position means Mrs X must pay for the provision out of her own funds and claim it back, or Y miss provision. Neither choice is suitable in this case. The Council has a duty to ensure Y receives the provision in his plan. It agreed to fund Y’s provision through a direct payment. The Council should provide this funding up front and not allow families to incur costs providing provision the Council is responsible for. This delay is fault.
29. The Council has also confirmed the delays in this case were because it considered decisions at a panel. The Council should make payments in a timely manner. If the Council consider payments at a panel meeting, it should do this in time to allow payment before the money is needed. The delays in this case is fault. This frustrated Miss X and impacted her financially.
30. I have seen multiple examples of Mrs X chasing the Council for payment. She has also had to chase the Council for an explanation of what dates the funding covers. It was only in the complaint response the Council explained its position and the timescales payments covered. The Council should clearly detail what a payment is for and not wait until a complaint to do this. The Council was at fault, frustrating Mrs X.

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Agreed action

31. To remedy the outstanding injustice caused to Mrs X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for the fault identified in this case. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £300 to recognise the distress, frustration and uncertainty caused by the Council fault.
• Review arrangements for making direct payments ensuring individuals receive payments in a timely manner. This should include details of what the payment is for.
• Provide guidance to the SEND staff on Personal Budgets referring to our Focus report “Parent power: learning from complaints about personal budgets”. 
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman