Summary: Ms D complained the Council failed to resolve her son’s direct payments package by the agreed deadline following a previous complaint she made to us. The Council was at fault for failing to act on our recommendation by the agreed deadline. The Council has agreed to our recommendations to address the further injustice caused to Ms D and her son.

The complaint

1. Ms D complained the Council failed to resolve her son’s, Mr E, direct payments package by the agreed deadline following a previous complaint she made to us. She says Mr E is still without the provision he is entitled to. She adds the Council’s continual delay is causing distress and upset.

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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 may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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How I considered this complaint

6. I considered information from Ms D. I made written enquiries of the Council and considered information it sent in response.
7. Ms D 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

Special educational needs

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 SEND Tribunal or the council can do this. 
9. 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). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
10. 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.

What happened

11. Ms D previously complained to us about the Council’s failure to provide Mr E with the education and special educational provision in his EHC Plan. We found the Council was at fault for failing to put this in place. This included speech and language therapy, a mentoring package from a trained mentor, occupational therapy and online access to an animation course for 10 hours per week. One of the recommendations we made was for the Council to resolve the issues with Mr E’s direct payments package by 30 April 2024 so he could start accessing his Education, Otherwise Than in College (EOTIC) package. The Council agreed to this recommendation.
12. Ms D contacted us on 30 April and said the Council had failed to resolve Mr E’s direct payments package as agreed. We contacted the Council and asked for updates. It told us in June it had sent a referral to the direct payments provider (Charity X) for urgent action.
13. Ms D contacted us in July and August and said the matter was still not resolved.
14. The Council sent consultation paperwork to an online college for Mr E’s animation course in early August. It decided to deal with the college course separately from the direct payments package. This means it pays for the college fees directly.
15. The Council sent a referral to Charity X at the end of August for Mr E’s direct payments package. Charity X responded and said it could not accept the referral until it had a signed agreement.
16. Ms D emailed the Council in early September and said the college had not received the consultation paperwork. The Council contacted the college and explained it had sent the paperwork in early August. The college apologised and confirmed it had received the paperwork, but it had not actioned it.
17. The Council sent Ms D a direct payments form on 20 September. Ms D returned a signed copy a few days later. Charity X and Ms D have confirmed the Council resolved the issues with direct payments package in mid-October. Ms D has arranged for Mr E to start accessing speech and language therapy, occupational therapy and his mentoring package.
18. The college sent its invoice to the Council at the beginning of October. When the Council responded to my enquiries in late October, it said it received the invoice from the college and it would pay this around 1 November. Once it has paid this, Mr E can access his animation course.

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Analysis

19. The Council is at fault for failing to resolve the issues with Mr E’s direct payments package by 30 April 2024. This has caused Ms D further upset and she has been put to the inconvenience of sending further chasers to resolve this matter. Mr E has been deprived of further educational and specialist provision. The Council has paid Ms D £28,428.56 to cover Mr E’s missed provision to July 2024. I welcome this. However, Mr E also missed the beginning of the autumn term (from September 2024) and so I recommend further payments to cover this period.
20. While the Council has stated it will pay the invoice for Mr E’s college, I have not received evidence it has paid it. This is preventing Mr E from accessing his animation course, which is the only matter outstanding. The Council should take swift action to resolve this matter.
21. The Council said the delays in resolving this matter were due to staffing issues and heavy caseloads. While I note the Council’s comments, it should have made it clear to us in response to our previous investigation the deadline of 30 April 2024 was unachievable. We could have then altered our recommendations accordingly. It was also not open and transparent when responding to our enquiries on this matter. This is concerning. It told us in June 2024 it had sent a referral to Charity X for its urgent attention. However, it did not send its referral until late August 2024.

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Agreed action

22. By 4 December 2024 the Council has agreed to pay the college’s invoice so Mr E can access his animation course.
23. By 18 December 2024 the Council has agreed to:

• Apologise to Ms D and Mr E for the injustice caused by the faults identified.
• Pay Ms D £150 for the upset and inconvenience caused by the Council’s failure to resolve the issues with Mr E’s direct payments package by the agreed deadline.
• Backdate Mr E’s direct payments package to September 2024 to make up for his missed provision.
• Pay Ms D £600 to reflect Mr E’s missed college course provision from September to November 2024. We would suggest Ms D uses this payment for Mr E’s educational benefit.

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

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Final decision

25. There was fault by the Council, which caused Ms D and Mr E an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman