• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• My findings
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs R complains the Council wrongly ended her daughter’s (Child B) personal budget which was used to support her special educational needs. She also complains the Council has delayed in amending Child B’s Education and Health Care Plan (EHCP). We have identified numerous and serious failings by the Council which amount to poor administrative practice in some areas. The Council repeatedly made flawed decisions about Child B’s personal budget based on no clear rationale or criteria. It also failed to provide Mrs R her legal right to challenge the decisions through a clear review process. The Council also failed to adhere to statutory guidance relating to the timeframe for amending an EHCP. Mrs R has suffered serious loss, harm and distress by reason of the Council’s failings. The Council has agreed to our recommendations to remedy the serious injustice identified.

The complaint

1. The complainant, who I refer to a Mrs R, is making a complaint on behalf of her daughter (Child B) who has special educational needs (SEN). Surrey County Council (the Council) maintains an Education and Health Care Plan (EHCP) for Child B. Further, the Council provided Child B with a personal budget to access provision in order to support her SEN. In summary, Mrs R alleges the following:
   • 1. The Council wrongly ended the personal budget and without notice.
     2. The Council rejected a new personal budget when Child B’s EHCP was formally reviewed.
     3. The Council has delayed in carrying an annual review for Child B.
2. In summary, Mrs R says the decision to remove Child B’s personal budget has adversely impacted her educational development and welfare. As a desired outcome, Mrs R wants the Council to reinstate the personal budget.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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 a serious 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).
5. We cannot investigate late complaints, unless we decide there are good reasons to do so. Late complaints are when someone takes more than 12 months to complain to us about something a council has done, or failed to do. (Local Government Act 1974, sections 26B and 34D, as amended).

6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended).

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How I considered this complaint

7. I have read Mrs R’s complaint to the Council and Ombudsman. I have also had regard to the Council’s responses to my formal enquiries in relation to matters raised and held a meeting with its officers to obtain additional information. Further, I have considered supporting documents and applicable legislation and statutory guidance. I invited both Mrs R and the Council to comment on my draft decision statement. Each of their comments were fully considered before a final decision is made.

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My findings

Council’s duty to provide alternative education

8. The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise than at school, as specified by Section 19 of the Education Act 1996. This states:

“Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.”

9. The provision should generally be full time unless it is not in the child’s best interests because of their physical or mental health.

Education and health care plan (EHCP)

10. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
11. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
12. When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
13. Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
14. The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.

EHCP annual review

15. The Annual Review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan.
16. The ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (the Code) is statutory guidance. This means local authorities must follow the Code when making decisions about children with EHCPs. The Code says: “9.169 The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or previous review”.
17. In practice the review covers not just the annual review meeting, but the Council’s decision (to maintain, cease or amend the Plan) following the meeting. Each of these three decisions carries a right of appeal to the SEND Tribunal.

Personal budgets and direct payments

18. A personal budget is an amount of money identified by the local authority to deliver provision set out in an EHCP. The Council can identify elements of the provision which can be made via a direct payment. Councils must ensure that children and young people with an EHCP receive a level of support which will help them “achieve the best possible educational and other outcomes”.
19. Local authorities must provide information on personal budgets as part of the Local Offer. This should include a policy on personal budgets that sets out a description of the services across education, health and social care that currently lend themselves to the use of personal budgets, how that funding will be made available, and clear and simple statements of eligibility criteria and the decision-making processes (paragraph 9.96 of the Code).
20. A child or young person’s parents have a right to request a personal budget, when the local authority has completed an EHCP needs assessment and confirmed that it will prepare an EHCP. They may also request a personal budget during a statutory review of an existing EHCP.
21. Where the SEND Tribunal can consider the special educational provision set out in the EHCP, there is no appeal against a decision not to provide a personal budget or direct payment. However, if a local authority refuses a direct payment it must give reasons in writing and tell the parent of the child or young person they have a right of review in accordance with s7 of the Special Educational Needs (Personal Budgets) Regulations 2014 (“the 2014 Regulations”).
22. As set out under s14 of the 2014 Regulations, a local authority must stop making direct payments if, following a review, this:

1. is having an adverse impact on other services which the local authority provides or arranges for children and young people with an EHCP which the authority maintains; or
2. is no longer compatible with the authority’s efficient use of its resources;

23. Where a local authority decides to stop making direct payments, the local authority must first give notice in writing to the recipient setting out the reasons for its decision. The local authority must reconsider its decision where requested to do so by the recipient of the direct payment.
24. When conducting its reconsideration, the local authority must consider the representations made by the and must then provide written reasons of its decision following the reconsideration to the recipient.

Chronology of events

25. Since July 2016, the Council has maintained an EHCP (version 1) for Child B.
26. Following a review, the Council issued an amended EHCP (version 2) for Child B in February 2017. Child B’s EHCP (version 2).
27. In April 2019, the Council held an annual review of Child B’s EHCP (version 2). There is no record maintained by the Council to suggest Mrs R was informed of the decision not to amend Child B’s EHCP (version 2).
28. In May 2020, the Council held a further annual review of Child B’s EHCP (version 2). There is no record maintained by the Council to suggest Mrs R was informed of the decision not to amend Child B’s EHCP (version 2).
29. The same month, the Council agreed to provide Mrs R with a personal budget in respect of Child B. The Council agreed to pay Mrs R approximately £445 each month to cover private tuition for Child B, commencing from June 2020.
30. In October 2020, the Council decided a personal budget was no longer required for Child B. The Council subsequently emailed Mrs R to inform the personal budget would end with immediate effect. The next month, Mrs R wrote to the Council to disagree with the decision made and request it be halted.
31. In March 2021, Council officers attended a meeting with Mrs R to discuss the decision to end the personal budget. There is no evidence to suggest the Council treated Mrs R’s dissatisfaction as formal request for a review of that decision.
32. In May 2021, the Council carried out a further annual review of Child B’s EHCP (version 2). The Council did not confirm the outcome of the annual review meeting to Mrs R until July 2021. It decided to amend the EHCP (version 2).
33. In July 2021, the Council held a meeting to reconsider its decision to end Child B’s personal budget. It referenced that Mrs R did not agree with the decision taken in October 2020 and had requested a reconsideration at the annual review meeting of the EHCP (version 2) held in May 2021. Mrs R had actually expressed she wanted a review in November 2020. However, the Council declined to reinstate the personal budget for Child B.
34. In October 2021, the Council issued an amended EHCP (version 3) for Child B.
35. In March 2022, the Council held a meeting to consider Mrs R’s request for a personal budget for Child B. It declined to provide a personal budget for Child B.

My assessment

Time limits

36. By law, I cannot investigate any complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion in this respect. Mrs R’s complaint requires investigation of issues since 2017 which would ordinarily be considered late. Specifically with respect to the annual review of Child B’s EHCP. However, I am exercising my discretion to investigate because I consider I can ascertain all relevant evidence and achieve a sound, fair, and meaningful decision. Further, due to the widespread fault identified in this case, I consider there is a wider public interest element which supports exercising discretion.

Local offer

37. The Council must provide information on personal budgets as part of the Local Offer. This should include a written policy on personal budgets that contains clear and simple statements of eligibility criteria and the decision-making processes. Though the Council does maintain a Local Offer, this is inadequate with respect to personal budgets and direct payments. In brief, the Local Offer is limited to explaining what a personal budget and direct payment is. This does not conform to the requirements of the Code. Consequently, when assessing whether a child or young person should be in receipt of a personal budget, the Council does not assess the application against any established criteria. This demonstrates poor administrative practice and is a primary factor which has contributed to poor decision-making within the Council (discussed below).

Decision to end the personal budget

38. If the Council decides to end a personal budget, it must first give notice to the parents of the child or young person, setting out clear written reasons for the decision. The Council decided to end Child B’s personal budget in October 2020 with immediate effect. It did not provide Mrs R notice in order to request a review of the decision. I therefore find fault by the Council in this respect.
39. Further, I have reviewed the written record of the decision made. In my view, the decision made was only applicable to Mrs R’s request for an increase in the personal budget for Child B. It fails to outline any rationale for the decision to end the personal budget. Further, it does not stipulate which condition under s14 of the 2014 Regulations the Council relied upon to bring this to an end. I have seen no evidence the Council informed Mrs R of her right to request a review of the decision in accordance with the 2014 Regulations. I therefore find serious fault by the Council. The decision to end the personal budget was flawed and Mrs R was not provided with any means to formally challenge it.

Formal review of decision made

40. In November 2020, Mrs R expressed she wanted the decision to end the personal budget to be halted. However, the Council did not action the review request until July 2021. A delay of seven months to carry out a review is entirely unsatisfactory. This should have been untaken by the Council on Mrs R’s request back in November and without unreasonable delay. I therefore find fault by the Council for not promptly actioning Mrs R’s request for a review.
41. I have reviewed the Council’s formal reconsideration of its decision to end Child B’s personal budget. The only information provided by the Council in reaching a decision about whether to reinstate Child B’s personal budget is as follows:

“Personal budget not reinstated. The school is offering a package of support that should meet needs therefore a personal budget is not required.”

42. In my view, this is not a satisfactory nor fit for purpose review of the Council’s decision to end Child B’s personal budget in October 2020. Firstly, the text has been inappropriately copied and pasted from another decision the Council made with respect to another of Mrs R’s children. The evidence suggests the decision was not treated with the seriousness or professionalism it deserved. Second, there is no consideration of why Mrs R was contesting the decision made and her reasons for doing so. This was a review and the Council needed to understand and take account of why it was being challenged. The Council failed to do this. Further, it also failed to identify which condition it relies upon under s14 of the 2014 Regulations to bring the personal budget to an end. This was fault.
43. In addition, I do not accept this is a clear, well considered and robust decision. There is no consideration of Child B’s needs or what specific examples of support is (not should) being provided by the school setting to meet provision needs. To demonstrate good administrative practice, I would expect the Council to assess a personal budget request against the provisions to be secured, the outcomes it will deliver and how it will meet health, education and social care needs. It is not sufficient to briefly outline that a school should (in theory) be able to meet the needs of Child B. Mrs R is entitled under the 2014 Regulations to request a personal budget and for this to be considered in a professional and responsible way. I do not consider this has happened and so I find fault by the Council.
44. In addition, the Council acknowledge it failed to notify Mrs R of its decision. The review exercise therefore was largely redundant as it failed to provide Mrs R reasons for its decision, as required under the provisions of 2104 Regulations. I therefore find fault by the Council in this respect.

Decision to not provide a new personal budget

45. In March 2022, the Council again considered whether it should maintain a personal budget for Child B. However, the written record of the decision says the Council was reconsidering its decision to end the personal budget in October 2020. The Council had already reviewed and reconsidered (albeit with serious procedural failing) its original decision and it should only do this once. Therefore, Mrs R request should not have been treated as a review, but a new request. There is an important distinction because consideration of a new request must carry a right of review under the 2014 Regulations, whereas a review does not.
46. I have reviewed the Council’s formal consideration of its decision to end Child B’s personal budget. The only information provided by the Council in reaching a decision in this respect is as follows:

“If private tutors are required to support Child B with her GCSEs, this is not required through her EHCP. Her education provision is suitable to meet her needs within the school offer.”

47. While there is some validity to this decision, it is not sufficient. This is because it does not explain any material change in Child B’s circumstances which justify a personal budget being approved in March 2020 and why one is not necessary today. When the Council approved a personal budget for Child B, her EHCP at the time did not make specific provision for private tuition. The Council nevertheless determined there was a gap in provision which could be best made available through a personal budget. That Child B’s EHCP does not specify private tuition In March 2022 as provision is not a relevant or credible argument.
48. In response to my draft decision statement, the Council provided me with further information. It said the personal budget was agreed in March 2020 to provide additional support to Child B due to the Covid-19 pandemic restrictions and impact on education. It said the requirement for additional support through the personal budget decreased when Child B was able to attend school. This explanation has credibility, but it does not feature in the Council’s maintained record of the decision not to provide a personal budget. I therefore maintain my view the Council has failed to justify with clear reasons why Child B’s needs do not require provision to bet through a personal budget. I am therefore finding fault with respect to this decision also. This means I am not satisfied the Council has ever properly considered whether Child B should receive a personal budget since the date it decided to implement one. Again, Mrs R was not informed of her right to request a review of the decision.

Annual review delays

49. The Code says an EHCP should be reviewed within 12 months of it first being issued, and every 12 moths subsequently. The Council must also confirm whether it intends to amend an EHCP within 8 weeks of an annual review meeting. In this case, Child B’s final EHCP (version 1) was issued in July 2016. The Council issued an amended EHCP (version 2) in February 2017. I have not identified any fault by the Council in this respect. Subsequently, Child B’s EHCP (version 2) was next reviewed in April 2019 and the Council decided it would not amend the EHCP (version 2). There does appear to be a delay by the Council in conducting an annual review between February 2017 and April 2019. The Council has since confirmed its records do not evidence an annual review taking place during this period. I therefore find fault by the Council for failing to hold an annual review.
50. The next annual review of Child B’s EHCP (version 2) took place in May 2020. I have seen no evidence the Council informed Mrs R whether it intended to cease, maintain or amend the EHCP within 8 weeks the review meeting. The Council has confirmed it does not have any record of doing so. I therefore find fault by the Council for not complying with the Code with respect to properly notifying parents its decision not to amend an EHCP. Moreover, this also means Mrs R was, in effect, denied her right to appeal the decision to the SEND Tribunal.
51. In May 2021, the Council carried out a further annual review of Child B’s EHCP (version 2). This means a decision should have been made by the Council whether it wishes to cease, maintain or amend the EHCP by June 2021. However, the Council did not confirm the outcome of the annual review meeting until July 2021. Subsequently, the Council did not issue an amended EHCP (version 3) until October 2021. The Council has accepted fault for the delay in the annual review process. However, I have not seen any evidence this caused a loss of education provision to Child B.

Injustice to the complainant

52. The Council has fallen far below the standards of good practice. It has also not complied with legislation and statutory guidance. I must therefore consider whether the fault has caused Child B and/or Mrs R to suffer serious loss, harm or distress. This must be considered in the context of both the personal budget and annual review areas of fault identified.
53. The Council identified that Child B needed a personal budget to meet his identified SEN. It entered an agreement with Mrs R in May 2020 to make a direct payment of £400 per calendar month, commencing from June 2020. The Council was at fault for ending Child B’s personal budget and the direct payment in October 2020. The Council has not provided any evidence to justify why the personal budget ended and each of its decisions in this respect have been flawed. I therefore consider Child B’s needs were at risk of not being met since the date the personal budget ended. Specifically, the personal budget was designed so that Child B could receive private tuition in numeracy and literacy each week. At no point did the Council say how exactly, and through what specific provision, her needs would be met following the personal budget ending.
54. In response to my draft decision statement, the Council provided me with further information. It provided evidence from Child B’s school highlighting the support it would be able to offer absent a personal budget. However, I have not seen evidence this was considered by the Council when taking the decision to not maintain a personal budget for Child B. It therefore does not alter my view.
55. I have spoken to Mrs R in relation to what happened when the Council ended the personal budget and direct payments for Child B. She told me Child B was unable to engage properly in schoolwork due to his SEN and that she took over the funding of his weekly private tuition to ensure his needs were met. Mrs R has retained copies of invoices and the payments she made for numeracy and literacy tuition. In short, Mrs R has protected Child B as much as possible from suffering an injustice due to the Council’s consistent failings. However, by doing so, she has suffered serious financial loss and distress. I am recommending a full back payment of £445 per month since the date the Council wrongly ended Child B’s personal budget. The Council has never accurately assessed whether Child B should be in receipt of a personal budget since it ended this. I am therefore recommending the payments be reinstated until it does.
56. In relation to the annual reviews of Child B’s EHCPs, there were delays by the Council. However, I have seen no evidence that Child B lost educational provision, or suffered any other harm, by reason of this failing. I am however satisfied the fault in this area caused serious distress and uncertainty to Mrs R who felt decisions were not being made in the best interests of her daughter. The distress and uncertainty to Mrs R was seriously exacerbated by the Council for not adhering to the 2014 Regulations with respect to rights of reviews. The Council made flawed decisions and had poor systems in place to ensure Mrs R could properly seek redress against these. This caused her serious distress.

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Agreed action

57. To remedy the fault and injustice identified in this statement, I recommend the Council perform the following actions.
58. By no later than 1 July 2022:
    • 1. The Council will provide Child B and Mrs R individual written apologies which acknowledge the faults and injustice identified in this statement. I consider these apologies should come from the Council’s Director of Education and Lifelong Learning.
      2. The Council will provide a full back payment of Child B’s personal budget since the date it ended this in October 2020. This means the Council will pay Mrs R £8,455 which has been calculated at £445 a month for 19 months.
      3. The Council will continue to pay Child B’s personal budget each month going forward until such a time it makes a procedurally and legally compliant decision whether her personal budget should end. The Council has said this will be either at the next annual review or following a change in personal circumstances, whichever arises sooner.
      4. The Council will pay Mrs R £1,000 to acknowledge the serious distress, upset and uncertainty she has suffered by reason of the Council’s failings. The Council will also pay Mrs R £250 for her time and trouble complaining to achieve an outcome.
59. By no later than 1 September 2022:
    • 1. The Council will establish a clear policy relating to personal budgets and direct payments. This will include clear and simple statements of eligibility criteria and the decision-making processes. The policy will be published as part of the Local Offer and made accessible to the public in accordance with the Code.
      2. The Council will provide formal training to all officers who are (i) responsible for making personal budget decisions and; (ii) responsible for recording written decisions relating to personal budgets. The training will focus on the new policy referred to above and how decisions are to be properly made and recorded to demonstrate good administrative practice in the future.
      3. At a senior level, the Council will review its systems and practices with respect to conducting reviews of personal budget decisions. Specifically, the Council will produce a template document informing parents of a personal budget outcome. This will contain information relating to a right of review. Further, the Council will develop a robust review process. This will include the timetable for completing a review and how the decision will be reviewed. The Council will implement a practice of sending parents an outcome letter of the review exercise which fully explains how the decision was reached. The Council will adopt further measures it considers appropriate following a full review.

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Final decision

60. I am upholding the complaint. The Council has consistently made flawed decisions relating to Child B’s personal budget by reason of not having robust systems and policies in place to support decision-making in this area. Moreover, it has denied Mrs R the opportunity to properly challenge these decisions by way of a formal right of review. The Council failed to adhere to the Code in amending Child B’s EHCP. There has been a serious injustice caused to Mrs R in this case and the Council has agreed to my recommendations to remedy this.

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Investigator's decision on behalf of the Ombudsman

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