Summary: Mrs X complained the Council wrongly refused her request for direct payments and delayed responding to her review request. Mrs X says this caused her child to miss out on provision and caused emotional distress which impacted their physical health. The Ombudsman finds no fault with the Council’s decision making. The Ombudsman finds fault with the Council’s delay responding to Mrs X’s review request. The Council will apologise to Mrs X and her child.

The complaint

1. Mrs X complains the Council:

1. wrongly decided she could no longer use direct payments to manage her child, B’s, personal budget; and
2. delayed processing her request for a review of its decision.

2. Mrs X says B has missed out on provision which has not been provided by the Council. She says this has caused stress to B which has impacted their physical health. She also says it has caused distress to the wider family.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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 considered the information and documents provided by Mrs X and the Council. Mrs X and the Council had an opportunity to comment on a draft of this decision. I considered all comments received before making this final decision.
6. I also considered the relevant statutory guidance, and Council’s policy, as set out below.
7. 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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What I found

What should have happened

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. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

What happened

13. B has an EHC Plan. In March 2024, the Council agreed to fund a personal budget for B to be educated at home. The Council and Mrs X did not agree on the amount of personal budget for each provision and communications were ongoing until July. Until an agreement was reached, the Council commissioned and paid for B’s tutors directly.
14. In April, B had planned surgery. The Council arranged carers to support B when B was discharged home. The Council arranged and paid for these carers directly, not via a direct payment.
15. In May, B’s carers logged they were completing household chores during visits. The chores included cleaning bathrooms, changing bedding for another family member, putting out washing and putting away shopping.
16. In June, Mrs X contacted the Council and raised concerns it had not paid the invoices for B’s tutors. She told the Council she had leftover money in a previous social care direct payment account, and she would use this money to pay the tutors if the Council did not respond. The Council responded after Mrs X made the payment.
17. In July, the Council wrote to Mrs X and told her it refused her request for direct payments. It explained this was because it had sight of the carers records and decided B’s support was not being used correctly. It decided to arrange and fund B’s provision directly with providers instead.
18. In early August, Mrs X asked the Council to review its decision. She said the records the Council relied upon were inaccurate and told the Council it had commissioned the carers directly so did not reflect her use of a personal budget. The Council acknowledged her review and said it would respond in 15 days.
19. In mid-October, the Council responded to Mrs X’s review request. It upheld its decision to fund B’s provision directly rather than providing direct payments to Mrs X. It told her this was because she had wrongly used carers commissioned by the Council to complete household chores and she had misused a social care direct payment account to pay the invoices for B’s tutor.

Analysis

20. Mrs X considers the Council should not have considered her incorrect use of B’s carers in its decision about her suitability to manage direct payments. She said this was because the carers were not managed by direct payments. She also said she did not receive proper guidance from the Council about the role of the carers, indicating she did not know asking carers to complete household chores was an incorrect use of Council resources. Mrs X told me she did not know the carers were completing logs. On balance, I am satisfied it is likely Mrs X knew the role of the carers was to offer direct support to B, and if she was unhappy with the carers she could have asked them to leave, rather than ask them to carry out household chores. I am also satisfied the Council are entitled to use this information in its consideration of Mrs X’s suitability to manage B’s future direct payments.
21. In its response to her review request, the Council also told Mrs X she had incorrectly used money from a social care direct payment account to pay for B’s tutor. Mrs X says she did this because the Council were responsible for paying outstanding invoices and she was concerned the tutors would leave if they were not paid. The day before making the payment, she contacted the Council again seeking guidance. I understand Mrs X felt under pressure, however, her correspondence to the Council indicates she knew paying the tutor’s invoice using money from the social care direct payment account she had access to was not the correct process. I am satisfied the Council are entitled to use this information in its consideration of Mrs X’s suitability to manage B’s future direct payments.
22. I am satisfied the Council considered all relevant information in its decision-making in its review and therefore I cannot criticise the outcome.
23. The Council told Mrs X it would respond to her review request in 15 days. It responded almost three months later. This is a delay of almost two months. This is fault. During this time, B still had access to their tutor. Mrs X says B missed out on other provision, however the provision Mrs X refers to was not included in B’s finalised EHC Plan which was issued in July. Therefore, this delay did not cause lost provision, however it did cause Mrs X and B avoidable and unnecessary uncertainty.

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Action

24. Within four weeks of my final decision the Council has agreed to provide a written apology to Mrs X and B for avoidable and unnecessary uncertainty caused to them by its delay responding to their review request.
25. 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.
26. The Council should provide us with evidence it has complied with the above actions.

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Decision

27. I find fault causing injustice. The Council will apologise to Mrs X and B.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman