Summary: Ms X complained the Council failed to agree a personal budget for her daughter, Y’s, Education, Health and Care Plan (EHCP), leaving her to fund Y’s education. We find the Council at fault for delays. We recommend the Council apologise to Ms X and Y, pay £400 and act to prevent recurrence.

The complaint

1. Ms X complains the Council failed to agree a personal budget for Y’s EHCP prior to the start of the 2021/22 school term. Ms X says because of this, she had to use money from her savings until the Council paid the personal budget.

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What I have investigated

2. I have investigated delays in finalising Y’s EHCP and personal budget agreement for the academic year 2021-2022.
3. I have not investigated matters arising before April 2021, or new issues that have occurred since Ms X first contacted us with her complaint. I have explained why at the end of this decision.

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The Ombudsman’s role and powers

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 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
7. 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)
8. 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.

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How I considered this complaint

9. I spoke to Ms X about her complaint and considered information she provided. I also considered information received from the Council.
10. I considered the SEN and Disability Code of Practice 2015 and the Children and Families Act 2014.
11. Ms X and the Council had an opportunity respond to a draft decision, and I considered any comments received before reaching this final decision.

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What I found

Education, Health and Care Plans

12. The Children and Families Act 2014 sets out support for children with special educational needs and disabilities (SEND). The ‘Special educational needs and disability code of practice’ (the Code) gives more details about how councils, schools and others should carry out their duties.
13. A child with special educational needs may have an EHCP. This sets out the child’s needs and how they should be met. The EHCP is set out in sections. We cannot direct changes to the sections about education or the setting named. Only the SEND tribunal can do this.
14. Councils must ensure EHCP provision is met. We can look at complaints about this. We can investigate where a council has not ensured provision, or where there have been delays in the process.
15. The Code says councils must review EHCPs, at least, yearly. The review should focus on a child’s progress towards achieving the plan outcomes and consider whether the outcomes and supporting targets remain appropriate. Councils can consider holding an early review if there is a change in the child’s circumstances.
16. Councils must give notice to all those invited to an EHCP review and seek advice and information from all parties. Following the meeting, councils must share a report with all parties within two weeks setting out any recommendations and amendments.
17. The council has four weeks from the review meeting to decide whether to maintain or amend the EHCP. It must present proposed changes to parents with an opportunity to comment and begin any amendments without delay.
18. Where there is a Personal Budget, the EHCP must include details of how the Personal Budget will support particular outcomes, the provision it will be used for including any flexibility in its usage and the arrangements for any direct payments for education, health and social care. The special educational needs and outcomes that are to be met by any direct payment must be specified.
19. Councils must finalise the EHCP within eight weeks of the amendment notice.

Personal budgets and direct payments

20. A personal budget is an amount of money identified by a council to deliver provision set out in an EHCP where the parent is involved in securing that provision.
21. The child’s parent may request a personal budget during a statutory review of an existing EHCP. Personal budgets should be focused to secure the provision agreed in the EHCP and designed to secure the outcomes specified.
22. If a council refuses a request for a direct payment for special educational provision it must set out reasons in writing and inform the child’s parents of their right to request a formal review of the decision.

The Council’s policy on direct payments

23. Where the Council agrees direct payments, this is for the academic year covered by that EHCP review. If parents want to receive direct payments for the following academic year, they need to make a new request during the subsequent EHCP review.

What happened

24. Y has complex special educational needs and has held an EHCP since 2014. Y struggled to attend mainstream school settings and has had home-based schooling since 2016, set out in her EHCP and funded by a personal budget.
25. The Council reviewed Y’s EHCP in February 2021 and issued an amended draft on 15 April. This draft EHCP did not contain any information about how a personal budget would be used to secure the provision set out in the plan.
26. On 19 July Ms X and the Council attended a meeting, held virtually to discuss Y’s needs in more detail and how she could be supported into adulthood.
27. Ms X emailed the Council on 2 August to chase a decision on Y’s personal budget. She explained it was now two weeks since the meeting and it had agreed nothing, with term starting in just four weeks.
28. Ms X chased this again on 24 August and asked for confirmation she would receive funds by the start of the Autumn term, the following week. The Council responded to Ms X that day to apologise for the delay and said it would get an answer for her as soon as possible.
29. Ms X emailed the Council again on 26 August. Ms X said she wanted clarity on what Y’s EHCP would include in relation to educational provision and asked for confirmation she would receive the personal budget ahead of the start of the academic year.
30. The Council did not finalise Y’s EHCP and the Autumn term started on 1 September. At this time, as there was no personal budget agreement in place, Ms X had to use £5,119.20 from her own savings to fund provision.
31. On 22 September the Council agreed to fund Y’s provision by use of a personal budget for that academic year, subject to review based on the outcome of the annual review.
32. On 23 September, a Council officer emailed Ms X to explain they were Y’s new allocated SEND Case Officer. They apologised for the delays in confirming the personal budget and said this was now in place for the academic year.
33. Ms X spoke to the Case Officer by phone that day and they agreed to work with the finance team to get the funds for the Autumn term sent to Ms X as soon as possible.
34. On 1 November Ms X discussed Y’s situation with the Case Officer and the Council agreed to pay the personal budget to Ms X. They also agreed to work to ensure Y’s EHCP review for the following academic year was completed on time.
35. On 4 November the Council repaid Ms X the £5,119.20 she had removed from her savings to fund Autumn term provision. This was nine weeks late.
36. Ms X complained to the Council on 10 December. She explained:
• She felt the Council’s policy on personal budgets and direct payments did not comply with the Children and Families Act 2014.
• The Council had not paid Y’s personal budget on time, which meant it had failed in its duty to secure the provision set out in her EHCP.
37. On 15 December, the Case Officer emailed Ms X to confirm the Council would pay the personal budgets for the Spring and Summer 2022 terms by 1 January 2022 and 1 April 2022 respectively.
38. The Council responded to Ms X’s complaint on 16 December 2021. The Council said its policies were compliant with the Code. It said it was currently reviewing its policy for personal budgets and direct payments and would replace this on its website by September 2022. It also repeated when Ms X was due to receive payments for the Spring and Summer 2022 terms.
39. Ms X responded to the Council on 21 December. She explained the Council had not addressed the issues raised in her complaint. Ms X also asked for a copy of the Council’s current policy on direct payments for personal budgets.
40. Ms X received the funds for Spring 2022 term correctly, on time, on 30 December.
41. Ms X emailed the Council again on 7 January 2022 asking it to also explain why Y’s personal budget was set up for specific dates rather than treated as ongoing until her EHCP was either amended or ceased.
42. The Council acknowledged this on 7 January 2022 and agreed to escalate the complaint to the next stage of its process.
43. Y’s EHCP was reviewed again on 22 February 2022. At this stage, Y’s EHCP for the 2021/22 school year had not been finalised and was still in draft form.
44. The Council provided its final response to Ms X’s complaint on 1 March. The Council provided a copy of its current policy for direct payments for personal budgets. It also provided a copy of Y’s personal budget agreement and an email from the Case Officer explaining more about the personal budget payment dates. It said it felt this resolved Ms X’s complaint.
45. Ms X received the funds for Summer 2022 term correctly, on time, on 1 April.
46. Ms X referred her complaint to the Ombudsman in April 2022.
47. In response to our enquiries, the Council told us:
• There was a delay in issuing a final EHCP for Y due to staff changes within the service. For this reason, Y’s EHCP has remained in draft format since 2021 and this did not have a detailed personal budget.
• A further draft of Y’s EHCP was issued on 12 October 2022 to include the personal budget and this would be finalised as soon as Ms X gave her agreement.
• The Council was aware that it was at fault and potentially delaying Ms X’s right of appeal to the SEND Tribunal but it had maintained contact with her throughout.
• Since the complaint was raised the Council recognised there was need for improvements to its personal budget process. Because of this, it has updated its Local Offer page to make the process clearer for families and the annual review document now includes a section dedicated to personal budget information. The Council confirmed it would also be rolling out training for anyone in its SEN Service who is involved with personal budgets.
48. In response to a draft decision, Ms X said she felt the Council’s default position should be for personal budgets to run until a new one is agreed, rather than running for a fixed period. Ms X said this would ensure there is no gap in education funding in cases where the Council has not completed an annual review in time.

Analysis

49. The Council did not finalise Y’s EHCP for the academic year 2021/22. This should have been completed by 10 June 2021 at the latest, but the EHCP only existed in draft form until it was due to be reviewed again. This is fault and, while Y’s education still went ahead as planned in the draft EHCPs, it would have caused considerable uncertainty for her and Ms X. This is injustice.
50. The Council has said staff changes contributed to the delays, but it ought to have had a system in place to ensure it was still meeting relevant deadlines.
51. Because the EHCP was not finalised, there was no personal budget agreement in place ahead of term starting in September 2021. This was despite Ms X chasing the Council to avoid this. This is fault and would have caused further uncertainty for Ms X and Y as they would not have known if or when they would receive funding for the provision in Y’s draft EHCP. This is injustice.
52. Although Y’s EHCP remained in draft form, the Council agreed a personal budget from 22 September 2021. The Council did make payment to Ms X for the Autumn 2021 term, but the delay meant she had to use £5,119.20 of her own savings for around nine weeks. While Ms X received the money back, this fault would have added to the uncertainty she experienced. This is injustice.
53. I do not find fault with how the Council made the Spring 2022 and Summer 2022 personal budget payments as these were made in line with its policy. And I have not seen any information to suggest this policy is contrary to the law.

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Agreed action

54. To remedy the injustice set out above, I recommended the Council, within one month of the date of our final decision:
• Apologise to Ms X and Y for the fault identified above;
• Pay Ms X £400 to recognise the distress and uncertainty suffered by her and Y;
• Provide the Ombudsman with evidence of the training it has rolled out for anyone in its SEN Service who is involved with personal budgets, and evidence that its annual review documents now have a dedicated section for personal budgets;
• Issue Y’s Final EHCP.
55. Within three months:
• Develop a process to ensure the Council can complete EHCPs (including details of any personal budget) in time, when faced with changes in staff and provide the Ombudsman with evidence of this.
56. The Council has accepted these recommendations.

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Final decision

57. I find the Council at fault for delays in issuing Y’s EHCP for the academic year 2021/22. I also find the Council at fault for delays in agreeing a personal budget and making the Autumn 2021 payment. To remedy the injustice identified, I make the recommendations set out above. The Council accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

58. Ms X said she had problems with the Council paying the personal budget as far back as September 2019. I have not investigated matters that occurred prior to April 2021 as this is more than 12 months before Ms X referred her complaint to the Ombudsman and I have seen no reason why she could not have brought these issues to us sooner.
59. Since Ms X contacted the Ombudsman, she is unhappy with how the Council changed its policy relating to payment of personal budgets. Ms X also said the Council failed to finalise Y’s 2022/23 EHCP on time and she was still waiting to receive a payment schedule for the current academic year. I have not investigated these as they are new issues and Ms X would first need to give the Council an opportunity to respond.

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Investigator's decision on behalf of the Ombudsman