Summary: Mrs X complained the Council failed to provide a personal budget outlined in her daughter’s Education Health and Care plan. We found the Council at fault for failing to make personal budget payments to Mrs X. The Council will apologise, pay for loss of education and distress and take action to prevent reoccurrence.

The complaint

1. Mrs X complained the Council failed to provide the provision outlined in her daughter, C’s, Education, Health and Care (EHC) plan. She says this occurred from the date the EHC plan was transferred following their move in July 2022 until it issued a new EHC plan in May 2023.
2. She says the lack of direct payments has caused the family financial hardship and this has created stress and anxiety for C and her family.

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The Ombudsman’s role and powers

3. 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)
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)
5. 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

6. I have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections.
9. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
10. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC plan to the ‘new’ council. From the date of transfer the EHC plan is to be treated as if it had been made by the new authority and must be maintained by the new authority. (Special Educational Needs and Disability Regulations 2014) 
11. Personal budgets are where an amount of money is identified to allow the parent or young person involvement in arranging provision set out in the EHC plan. Personal budgets are either:
• a fund arranged and managed by the person themselves,
• a fund organised and managed by the council or a school,
• a fund organised and managed by a third party on behalf of the child, or
• a combination of these.
12. Details of a personal budget should be set out in section J of the EHC plan. It should include the special educational need being met by the payments and any conditions for receipt of a direct payment. Funding can commission services from schools or colleges, commissioning of this will vary depending on the local offer. (SEN code of practice: 0 to 25 years)

The Council’s personal budget policy

13. The Council’s personal budget policy says personal budgets may be considered for children receiving ‘Education Otherwise Than at School’ (EOTAS). The Council holds responsibility for directly commissioning, monitoring and reviewing the package to help the family in management of provision.
14. If a direct payment is agreed, the Council will monitor and review the arrangements. It will look to ensure the direct payments are used to buy the services the child has been assessed as needing in the EHC plan. If necessary, it will recover unpaid sums.
15. The Council needs a quarterly return and report of funds. It can stop paying following a review under certain circumstance. Including; if payments are used incorrectly, direct payments can no longer secure the agreed provision, it adversely effects other service users, or for efficiency purposes.

What happened

16. Mrs X’s daughter, C, has an EHC plan due to her autism related needs. A new EHC plan was issued in June 2022. The development objectives included language and communication skills, management of social situations and obtaining a minimum of five GCSEs, as well as developing emotional self-awareness, sensory awareness and physical mobility. This was to be delivered through an EOTAS package and direct payments.
17. Direct payments were to fund eight hours of tutoring, one hour of dance lessons, one hour of speech and language therapy, and 0.5 hours of emotion coaching intervention per week. As well as two counselling sessions per month, transport costs and educational materials.
18. At the time of the review Mrs X was aware they were moving out of the area of the council currently maintaining the EHC plan. A decision was made to consult a school in Surrey. The school advised it had a long waiting list and did not have a place for C. Following this Mrs X instructed an education consultant to identify a school that could meet C’s needs in Surrey.
19. Mrs X and her family moved to Surrey in late July 2022. The Council was informed that C was moving to the area in early August 2022. It received a copy of C’s EHC plan, her most recent annual review documents and therapy reports.
20. In mid-August Mrs X contacted the Council to ask it to confirm when direct payments would be made so she could arrange provision. She chased the Council again for details about direct payments in late-August as she had not received a response. The Council confirmed it would take on C’s EHC plan and make direct payments for EOTAS provision and said it would look into personal budget payments.
21. An email between staff at the Council discussed the personal budget payment process. It noted a form needed to be completed and a prepaid card would be arranged by the Council. The supporting document attached stated that funds would be loaded on to the card in advance to allow payments to be made. This would either be monthly, termly or quarterly. It explained this would then be used to pay for provision and receipts would need to be uploaded to the system or posted to the Council to evidence payment. The Council did not pass this information on to Mrs X.
22. In September 2023 C was due to start year 10.
23. In late September Mrs X raised concerns the lack of information about how to set up direct payments was preventing C from accessing education. She had concerns about the lack of an assigned worker for C’s EHC plan. She also explained that she would like C to have a school place rather than EOTAS and explained the consultant has suggested two possible schools.
24. The Council responded to explain it was recruiting for a case officer and so could not confirm when it could assign C’s case. However, duty officers and a senior case manager were overseeing the case. It explained the senior case manager would be in contact to discuss the personal budget. The Council did not contact Mrs X.
25. In early November Mrs X emailed the Council to say she had enrolled C at an independent school identified by the consultant. She explained she had felt she had to do this because of the delays with the Council. She said she was concerned about the loss of education C was experiencing in a crucial educational year.
26. In mid and late November Mrs X chased the Council for direct payments.
27. In December 2022 the Council paid Mrs X £996.05 for the cost of her dance lessons, acting class, counselling and travel costs up to that point.
28. The Council issued a final EHC plan for C in early May 2023. This agreed a school place for C at the independent school she had been attending. It back dated payment of costs to the February half term on the basis there had been a delay in the review. It has refused to pay the costs of the school between November 2022 and mid-February 2023. It said the school was not named in the EHC plan and did not meet the EOTAS requirements.

Findings

29. The Council became responsible for C’s EHC plan when it was transferred to it in early August. It considered its EHC plan review duties and carried out consultations. However, while these were ongoing the Council had a duty to provide the provision outlined in the EHC plan, I am not satisfied it did so.
30. C’s EHC plan included a personal budget of £26,000, which means she should have received around £17,000 between September 2022 and May 2023. The Council has only paid Mrs X £996. The Council has, therefore, not made payments in line with the agreed EHC plan.
31. According to the Council’s internal communications it should have sent Mrs X a direct payment form to set up a prepaid card to allow her to arrange provision for her daughter. There is no evidence the Council followed this process and set up an account. In fact, there is no evidence the Council sent Mrs X any information on direct payments or its policy. This is fault.
32. During Mrs X’s complaint the Council stated that Mrs X needed to provide evidence of her expenses and then it would seek to refund these. However, the policy states payments will be made in advance and for receipts to be submitted afterwards for the Council to check. Its suggestion it required receipts in advance of payments being made is incorrect.
33. The Council should have paid Mrs X either a monthly, termly or quarterly amount of the personal budget for C. She would then have been able to use this to obtain tuition, dance lessons, speech and language therapy and counselling for C. Without the payment Mrs X had to pay for the dance and counselling herself. The financial cost is an injustice and she has only been compensated for part of these costs.
34. C was also without tuition for two months during the beginning of her GCSEs because of the Council’s failure to provide funds. Having moved to the area this will have impacted her ability to form attachments and friendships in the local area. C only began to receive educational provision when Mrs X was prepared to take on the financial costs herself and placed C at the independent school recommended by the consultant. This loss of education and provision under the EHC plan is an injustice.
35. Mrs X’s actions, in arranging a school place, mitigated some the impact of the Council’s failure to provide the personal budget outlined in the EHC plan. This came at a financial cost to Mrs X and she may not have felt compelled to take such action if the Council had arranged to make direct payments. There is, though, an injustice here in the loss of provision from the Council which should be recognised.
36. The Council would be entitled to recover from Mrs X any monies which have not been spent and any money not spent in line with the provision listed in the EHC plan. The plan detailed that C should receive eight hours a tuition which is not the same as C’s school placement. In view of this it would not be appropriate to ask the Council to pay the remaining personal budget C was entitled to between September and May. The Council should instead remedy the loss of provision during this time because of its failure to make personal budget payments.

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Agreed action

37. Within one month of the decision the Council will:
• Apologise to Mrs X and pay her £200 for the distress caused by its failure to arrange direct payments between September and May.
• Pay Mrs X, on receipt of invoices from December to May, for the costs of the EOTAS provision Mrs X has paid for.
• Pay Mrs X, on behalf of C, £1,200 for the loss of educational provision between September and November.
• Pay Mrs X, on behalf of C, £2,000 for the loss of provision between November 2022 and February 2023.
• Inform all staff within the special educational needs department of the process by which direct payments must be set up and the policy is for payments to be made in advance.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. I have found fault leading to an injustice. The Council will take action to address the injustice and prevent reoccurrence.

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Investigator's decision on behalf of the Ombudsman