Summary: We will not investigate Ms M’s complaint about the Council’s decision to recover unspent direct payments because there is insufficient evidence of fault to justify investigating.

The complaint

1. Ms M complains about the Council’s decision to reclaim unspent funds from her son B’s direct payments for his education, health and care (EHC) plan. She says she did not spend all the money because of the COVID pandemic and the times when B was ill. She believes B should retain the money to fund the provision he missed.

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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:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome.

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

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How I considered this complaint

3. I considered information provided by Ms M and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. B received payments from the Council so Ms M could arrange the special educational provision in his EHC Plan herself.
6. Ms M moved house and left the Council’s area in May 2024. The Council’s responsibility for B’s education and his EHC Plan ended and transferred to the area where Ms M now lives.
7. At the time Ms M left the Council’s area, there was a substantial balance in B’s direct payment account.
8. In line with the direct payment agreement, the Council reclaimed the balance.
9. Ms M objected. In her complaint to us, she explained that she had not spent all the money because of restrictions during the COVID pandemic, and because B had experienced periods of illness. She believes the Council’s absolute duty to secure the provision in B’s education, health and care plan means she should keep the money to fund the provision B missed so he can ‘catch up’. She thinks it is unfair for the Council to recover the money because it was not her fault she could not spend it.
10. It is, of course, unfortunate that B missed provision because of the COVID pandemic and because he was ill. He may need extra provision to catch up.
11. Any extra provision should be planned – and funded – through the regular reviews of his EHC Plan to ensure that it is delivered in a way that meets his needs.
12. Plans must be reviewed at least once a year. Because of this, seems unlikely that funding – and provision – should simply ‘roll over’ from one year to the next as suggested by Ms M’s complaint. It makes more sense for the Council to recover funds which have not been spent (for whatever reason) and plan accordingly for the next year at each annual review.
13. With this in mind, it is unlikely we would find fault if we were to investigate Ms M’s complaint about the Council’s decision to recover the money. Investigation would not lead to a different outcome.
14. Ms M may be right that B needs extra provision to make up for periods of illness and catch up on the provision he missed. However, this is something Ms M could raise in his annual review.

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Final decision

15. We will not investigate Ms M’s complaint because there is not enough evidence of fault to justify investigating.

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Investigator's decision on behalf of the Ombudsman