Summary: Mr X complained about the Council’s handling of his educational personal budget request for his daughter. We found the Council was at fault for not telling him the reasons for rejecting his request and not informing him of his right to a review. This caused Mr X avoidable distress. The Council agreed to apologise, pay him £150 and issue reminders to staff.

The complaint

1. Mr X complains about the Council’s handling of his request for an educational personal budget for his daughter, S, which he made in late August 2024. He says the Council:
• did not follow the correct statutory process when considering his personal budget request;
• wrongly told him it considered the request at Panel three days before Mr X made the request; and
• at the time it did not tell him the reasons for the Panel’s decision to refuse a personal budget.
2. Mr X said this meant that he had to make a complaint to the Council to find this information out, which he should not have had to do. It also caused him and his wife avoidable distress and uncertainty.
3. Additionally, Mr X said that the Council’s decisions negatively impacted S. Her attendance declined and she struggled in a mainstream school that could not support her needs.
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. Mr X would like the Council to apologise for the poor communication and provide training to its staff about the process they should follow when considering and communicating personal budget decisions. He would also like the Council to pay him for the avoidable time he spent chasing the Council for the information it should have provided in the first place. Lastly, he would like the Council to pay a remedy to S for the delay its actions caused her in accessing the support she needed.

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The Ombudsman’s role and powers

6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. 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)
9. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
10. 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.
11. 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.
12. 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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What I have and have not investigated

13. As part of his complaint to us Mr X complained about the actions of the NHS Integrated Care Board (ICB). I did not investigate this aspect of his complaint because we cannot consider the actions of ICBs.

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How I considered this complaint

14. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
15. Mr X and the Council have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Personal Budgets

16. 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 in the EHC Plan themselves.
17. 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.
18. 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.
19. If the Council and the parents’ disagreement about a personal budget relates to the special educational provision to be secured through a Personal Budget the child’s parent can appeal to the SEND Tribunal, as with any other disagreement about provision to be specified on an EHC Plan.

What happened

20. During S’s 2024 EHC Plan annual review the Council removed S’s direct Speech and Language (SALT) provision that had previously been a part of the Plan. Mr X questioned this.
21. Mr X disagreed with this and was aware of his right of appeal to the SEND Tribunal. He did not use this right.
22. In July 2024 Mr X asked the Council to tell him how to apply for an educational Personal Budget for S. The Council responded on the same day and told him that to consider a Personal Budget request the Council would need exact costings of what parents are asking for, the duration and evidence as to why this support would be necessary. It also said that requests for personal budgets usually came in the form of a letter, with exact monthly costings and quotations and would need to be approved by the Council’s SEND Panel.
23. In August 2024 Ms X sent the Council the information it required. Within two weeks the Panel made a decision to refuse Mr X’s personal budget request for the SALT to be delivered to S by an independent provider. This was partially because S’s EHC Plan did not include SALT provision.
24. Three days later the Council emailed Mr X and told him the outcome of the Panel and referred him to the Local Offer. The Council did not explain its reasons for refusal and did not tell Mr X about his right to ask for a review.
25. Mr X sent the Council further supporting evidence in mid-October. He asked the officer to add the evidence to the bundle that would be presented to the Council’s Panel for consideration.
26. In October 2024 the Council agreed to a mediation meeting with Mr X to go over the contents of S’s EHC Plan.
27. Mr X was unhappy about the Council’s decision and he complained about the delay in getting a response to his Personal Budget request.
28. In early November 2024 the Council responded to Mr X’s complaint. It did not uphold his complaint and explained that the Council is not required to provide direct SALT input when a young person has functional language skills. Instead, the Council decided to support S throughout the day by those who lived and worked with her.
29. Mr X remained unhappy and asked the Council to consider his complaint further. He said that the Council had not explained to him why it considered the SALT outlined in the independent report Mr X had commissioned did not meet the criteria for SEN and the officer who made the initial report did not inform him of his review rights and the right to complain to the Ombudsman.
30. In December 2024 the Council sent Mr X its final response. The Council said that it disagreed with the independent report as it considered that S’s needs did not require direct intervention of a qualified speech and language therapist.
31. Mr X was unhappy with the outcome of his complaint, and he asked the Ombudsman to investigate.

Analysis

32. Mr X made a request for a personal budget to fund provision for S that was not included in her recently updated EHC Plan. He said the Council delayed giving him a response about its decision with regard to the Personal Budget request.
33. The Council’s records show it emailed him a response on the 19 August 2024, a few days after the Panel made the decision. We are not sure what day Mr X sent the Council detailed information about his Personal Budget request however, on balance, the details he had shared with the Council are unlikely to have changed its decision.
34. The Council’s email did not include information about why the Panel did not agree the Personal Budget and that he could ask for a review of this decision. This is fault. The Council should have carefully explained its reasons for why it refused Mr X’s Personal Budget request, rather than simply referring him to the Local Offer website. This caused Mr X avoidable distress.
35. However, we cannot say the Council was at fault for not agreeing to the Personal Budget in the first place. This is because at the time SALT provision was not part of S’s EHC Plan. If Mr X disagreed with the contents of the EHC Plan he could have appealed it to the SEND Tribunal.

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Action

36. Within one month of the date of the final decision statement, the Council should:
• apologise to Mr X and S for its failure to explain the reasons for the rejection of the Personal Budget request and the avoidable distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• pay Mr X £150 to remedy the distress and frustration the lack of explanation caused him; and
• issue a reminder to staff about the importance of following good administrative practice when making and communicating Personal Budget decisions by providing reasons for the decisions and information on the right to ask for a review.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. We found the Council was at fault for not telling him the reasons for rejecting his request and not informing him of his right to a review. This caused Mr X avoidable distress. The Council agreed to apologise, pay him £150 and issue reminders to staff.

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Investigator's decision on behalf of the Ombudsman