Summary: Miss B complained about matters connected to the Council’s management of a personal budget she receives to meet some of her child’s special educational needs. We upheld the complaint, mainly because the Council delayed too long in responding to Miss B’s complaints. We consider this caused her an injustice, as distress. The Council has accepted our findings and at the end of this statement, we set out the action it has agreed to remedy this injustice.

The complaint

1. I have called the complainant ‘Miss B’. She makes a series of interlinked complaints about the Council’s administration of a personal budget she receives to meet some of her child’s special educational needs (I will call her child ‘C’). In summary she complains the Council:

• delayed in making payment to cover the costs of physiotherapy;
• did not update C’s personal budget to help meet the costs they have for hydrotherapy; a need identified in their Education, Health and Care (EHC) Plan;
• did not update C’s personal budget to enable payments for speech and language therapy identified in their EHC Plan to meet needs arising from having dysphagia;
• did not update C’s personal budget to cover the cost of physiotherapist’s travel costs when visiting C at school or at home during the school holidays;
• did not include any amount to cover the cost of orthotics in C’s personal budget;
• did not provide enough information to her (either directly or through a third-party organisation that administers payments) about the breakdown of funding for the personal budget in either the 2021/22 or 2022/23 academic years.

2. Miss B says because of the above, there has been no funding of key provisions C needs. This has an impact on their health and wellbeing. These matters have also caused Miss B distress and she has experienced unnecessary time and trouble in making repeated complaints.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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)

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How I considered this complaint

8. Before issuing this decision statement I considered:

• Miss B’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence between Miss B and the Council pre-dating our investigation of her complaint;
• information provided by the Council in response to written enquiries;
• a letter sent to Miss B in December 2023 setting out the updated position of the Council on certain matters covered by this investigation;
• any relevant law, national guidance or Council policy referred to in the text below;
• any relevant guidance published by this office, including that we publish on remedies;
• a report we issued in June 2023. This considered delays in the Council’s handling of complaints made about its special educational needs service 22 003 403 - Local Government and Social Care Ombudsman.

9. I also gave Miss B and the Council a chance to comment on a draft version of this decision statement. I considered their responses before finalising the statement.

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What I found

Key law and guidance

10. A child with special educational needs may have an EHC Plan setting out the child’s needs and arrangements to meet their needs.
11. Parents can appeal to the SEND Tribunal about the content of an EHC plan, once finalised. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
12. The Children and Families Act 2014 introduced personal budgets for children and young people with EHC plans. Separate Regulations then enable personal budgets to be paid as direct payments to parents to cover education, health and /or care needs.
13. The personal budget is an amount the Council identifies as sufficient to deliver the provision set out in the EHC plan. Where a parent receives a direct payment then they receive the cash to contract, buy and manage the services the child receives.
14. The SEN Code of Practice says that parents have the right to request a personal budget which can cover some education, social care and health funding. The Code says that partners including education and health services should set out arrangements for agreeing personal budgets. This should include making clear which services across education, health and social care “lend themselves” to a personal budget. The policy should also cover how organisations control such budgets and provide "clear and simple statements of eligibility criteria and the decision making processes that underpin them”. (SEN Code of Practice para 3.38)
15. The Council publishes online arrangements for how a parent can request a personal budget and direct payments. It explains in general terms how parents can use such payments. It provides a link to Government guidance on personal health budgets.
16. In response to our enquiries the Council has explained its administrative process as follows:

• that when it agrees a personal budget it shares details with the parent / carer;
• that it calculates the amounts used in a budget on the hours and frequency of education provision set out in Section F of a child’s EHC plan;
• that it uses the “average costs for similar services” to do this. However, it will sometimes base the personal budget on specific quotes for services. This is for children who need bespoke services;
• that it will review personal budgets as part of an annual review procedure for all children with EHC plans;
• that it will also review the personal budget if there are amendments to an EHC plan arising from a parental appeal to a SEND Tribunal.

The key facts

17. C is a disabled child of school age. They have an EHC Plan that sets out what additional needs they have in the areas of education, health and care.
18. Section F of C’s EHC Plan – in versions dated December 2021 and October 2022 – says they need therapeutic support. This includes from occupational therapy, physiotherapy and speech and language therapy. Section F details some of this support includes hydrotherapy which a physiotherapist will either provide or direct.
19. Section G of C’s EHC Plan – again, in versions dated December 2021 and October 2022 – identifies that they also have health needs, including therapeutic needs. This section of the report includes reference to C receiving speech and language therapy to help with dysphagia and that they need orthotic assessments and provision. There is also reference to C having physiotherapy support other than during term times.
20. Between December 2021 and October 2022 C’s EHC Plan was subject to an appeal, which concluded in September 2022. One outcome of the appeal was that those needs identified in Section G of the Plan, summarised in paragraph 19 above, would be moved to Section F. The Council and Miss B agreed a working document during the appeal process which contained this change. The SEND Tribunal decision cross-referenced this working document.
21. The Council has said it was a mistake therefore that when it issued the EHC plan in October 2022, that this still had the provision summarised in paragraph 19 in Section G of the Plan.
22. The versions of C’s EHC Plan say they receive a personal budget to meet their education needs only, which has remained constant throughout. I understand C has a direct payment account managed by a Court appointed Deputy on their behalf. The Deputy authorises payment from that account to those providing services to C.
23. Payments into the account come from a third-party organisation acting on behalf of the Council (the Council’s contractor). It receives notice from the Council of the amounts agreed for different services, which then form C’s personal budget.
24. In June 2022 Miss B made three separate complaints to the Council. In the first of these she complained at a delay in payments to C’s direct payment account for physiotherapy. The Council replied saying the delay was because C’s Deputy had not sent over invoices confirming payment due for the therapy. Once it received those, its contractor transferred payment.
25. In her second complaint, Miss B complained the Council had not paid invoices for speech and language therapy C needs because of their dysphagia. In October 2022 the Council replied, saying that it understood its contractor had paid invoices for this therapy in May 2022. Miss B responded the same day saying this was wrong. The next day she provided an email from the contractor confirming a payment it made in May was for the “adjusted cost of pre-existing allocated provisions”. These did not include the specialist therapy for dysphagia.
26. The Council registered Miss B’s ongoing dissatisfaction with its response at stage two of its complaint procedure. But it did not provide its further response on this matter until December 2023. The Council apologised for its delay and offered a symbolic payment to Miss B of £250 for the injustice resulting from this. It said C’s dysphagia was a health need. It offered “support in progressing this matter with colleagues in health” if Miss B consented to it sharing information with the health service.
27. In her third complaint, Miss B said:

• the Council had not paid for C’s hydrotherapy during the 2021/22 academic year. Also, that she was paying £20 pool hire for their sessions and had care costs to help C prepare for the sessions;
• that payments it made to cover physiotherapy were not enough to cover the travel costs charged by the physiotherapist when they visited her home;
• that a breakdown of costs that its contractor sent in May 2022 was late;
• the personal budget did not cover the cost of C’s orthotics.

28. The Council replied to this complaint in late September 2022. It said the personal budget included an amount for physiotherapy which encompassed C’s hydrotherapy. It said that it could only meet the cost of physiotherapy during term times. It set out a history of contacts between Miss B and the contractor where she had received a breakdown of the personal budget from August 2021 onward.
29. Miss B responded, dissatisfied with the Council’s reply. The Council registered this at stage two of its complaint procedure. But again, it did not give its further response to Miss B’s complaint until December 2023. This reiterated that it considered C’s hydrotherapy part of their physiotherapy needs funded through his personal budget. However, it accepted this did not include the pool hire costs. So, it agreed to add £760 to C’s personal budget, subject to Miss B providing satisfactory proof of the cost. It also offered a payment of £600 to Miss B in recognition of the distress caused by the delay in replying to her complaint.
30. In July 2022 Miss B made a fourth complaint. This repeated the Council had not provided C with hydrotherapy during the 2021/22 academic year. The Council replied in March 2023 saying that neither Miss B or C’s school had told it that C could not access hydrotherapy then. It noted C was now receiving hydrotherapy. It said there was no scope to increase the sessions C received to make up for those they had missed. It suggested if Miss B was unhappy with how much hydrotherapy C received, she could raise this as part of an ongoing appeal against the content of the EHC Plan issued in October 2022. The Council also said in its letter of December 2023 that it considered any complaint about the extent of therapy C should receive as being something Miss B could raise at appeal. Miss B says she cannot appeal about the Council’s failure to ensure C’s provision in the past.
31. While waiting for an answer to her complaints at stage two of the complaint procedure Miss B received some updates from the Council on its progress in answering these (as well as other complaints not included within the scope of this investigation). These have included:

• an email sent in early February 2023 recognising replies to the complaints above were now overdue;
• an email sent in mid-March 2023 recognising replies to the complaints remained overdue;
• an email sent in late June 2023 confirming the Council was chasing a reply to the outstanding complaints from the special educational needs service;
• a letter sent in July 2023, following the report we issued in June 2023 (see paragraph 8). This came from a senior officer and apologised for the delays in answering her complaints. It explained action the Council would take to address to backlog of outstanding complaints.

32. During this investigation we have checked that Miss B’s appeal against the October 2022 EHC Plan included that the provision summarised in paragraph 19 was in Section G of the Plan and not Section F. In acknowledging her appeal, the Council sent Miss B a revised working document which again showed the provision in Section F.
33. The Council has told me that it has therefore agreed in principle that the provision summarised in paragraph 19 can form part of C’s personal budget for education needs. However, it will not amend the personal budget to include these costs until the outstanding appeal to the SEND Tribunal concludes.

My findings

The Ombudsman’s jurisdiction

34. The term jurisdiction refers to our legal powers to investigate a complaint.
35. I am unable to investigate Miss B’s complaint that C’s personal budget does not encompass the cost of the speech and language therapy they receive for their dysphagia or for the orthotics they need (see paragraphs 25 and 27).
36. The Council says the version of the EHC Plan Miss B received in October 2022, which put these needs in Section G, was sent in error. It was not a deliberate act to move these provisions back to Section G having previously agreed they belonged in Section F. So, the October 2022 EHC Plan should have recorded those needs in Section F.
37. However, the remedy for parents if they want changes to an EHC Plan, whether as a result of the Council putting something in the plan by accident or design, is the same. Which is for them to use their right to appeal to the SEND Tribunal.
38. Miss B did this as soon as she received the October 2022 EHC Plan. Part of her appeal included the Council naming provision in Section G, which following the September 2022 appeal Miss B understood should be in Section F.
39. Because Miss B has used that alternative remedy, we are unable to investigate this part of the complaint or recommend a remedy for it. I recognise this will be frustrating for Miss B as C’s personal budget will not update until the current outstanding appeal concludes. But the Courts have held that the Ombudsman cannot provide an additional remedy to that set out in law, which is the appeal to the SEND Tribunal, where that remedy has been used. This is even if the appeal cannot provide the remedy Miss B wants – which is the backdating of a personal budget to encompass provision agreed during the appeal process.

The Council’s delay in answering complaints

40. I note first the Council has clearly delayed unacceptably in answering Miss B’s complaints. I have not enquired to explore the reasons for this given our recently issued report I referred to in paragraph 8. This found an extensive backlog of unanswered complaints about the Council’s special educational needs service. We made a series of recommendations designed to encourage the Council to tackle this issue. This included the apology letter it sent to Miss B in July 2023. We will continue to monitor those steps separate to this investigation.
41. However, I must still record the delay in answering Miss B’s complaints as a fault. The delays have caused Miss B uncertainty in not knowing the Council’s position on matters she has raised. We consider this an injustice, as distress.
42. I welcome that in its most recent correspondence to Miss B the Council has recognised this. It has made an apology and offered a combined payment of £850 in recognition of the injustice caused. I consider this in line with the Ombudsman’s guidance on remedies, given the amount of delay.

The complaint about the physiotherapy invoice

43. Turning to Miss B’s substantive complaints, I have found no fault in any delay in the Council paying an invoice for C’s physiotherapy (‘the first complaint’ referred to in paragraph 24). I am satisfied the Council’s contractor needed an invoice to pay for the services. Once C’s Deputy provided this, the contactor transferred the money to the direct payment account. There is no evidence that shows the Council or contractor failed to act in response to any invoice made available sooner.

The complaint about hydrotherapy provision

44. C’s need for hydrotherapy forms part of their education needs. They did not receive this between September 2021 and July 2022. Without evidence to the contrary, I accept the Council did not know C was not receiving the provision at this time, because neither C’s school nor Miss B told it.
45. We do not consider councils have a ‘watching brief’ to ensure schools deliver all parts of an EHC Plan. Instead, we expect councils to react if alerted to problems in delivery by either the pupil, parent / carer or education setting. I cannot find the Council at fault here, if it did not know C did not receive this provision.
46. I can still understand why Miss B wants C to receive extra hydrotherapy sessions to compensate for the ones he missed as a result. She has explained to me the therapeutic benefit C gains from the sessions. However, I agree with the Council that this is something for the SEND Tribunal. Because it can order more hydrotherapy sessions if C will benefit from those now. We are not an expert body that could reach such a judgement.
47. So, I do not recommend any remedy for C’s lack of provision for the 2021/22 academic year. This includes any symbolic payment for the loss of service experienced.
48. But I do want the Council to go further when it comes to recognising the costs Miss B incurred in making her own arrangements for C to receive this therapy from the 2022/23 academic year onwards. That splits into two parts. First, the cost of the pool hire. I consider this must form part of the hydrotherapy C receives and the Council now accepts this.
49. I welcome the Council has said it will fund the pool hire costs moving forward. I assume the figure of £760 quoted (38 weeks hire) is for the current academic year 2023/24. But that does not address the cost of any hire for the previous year. That is a fault. And if Miss B does not receive a refund for costs incurred before the start of the academic year, then that is a resulting injustice. The Council has agreed action to remedy this injustice, which I set out below.
50. I have no view whether the cost of the hydrotherapy should also cover any extra costs of care Miss B might have associated with journeys and personal care for C to attend the sessions. If Miss B considers these an education cost, I consider it is something she could again raise with the SEND Tribunal.
51. In comments on the draft of this decision Miss B has advised C’s circumstances in attending hydrotherapy have changed again. They can no longer use the provision she arranged previously, and while she has identified an alternative, this is more expensive and will require travel and overnight accommodation. So, C is again not receiving the provision identified in their EHC Plan.
52. I have taken no view on whether the Council should amend C’s personal budget to meet this increased cost and enable Miss B to commission this service. To my knowledge it has yet to give this matter its attention. But that is something it must do and if Miss B is dissatisfied with its reply, then that is something she can raise as a new complaint.

The amount of the personal budget to cover physiotherapy

53. In terms of the personal budget, that leaves me finally to consider Miss B’s complaint the physiotherapy budget is not enough to meet the costs of the physiotherapist’s transport or home visits. I agree with the Council that it does not have responsibility to fund therapeutic services during the school holiday periods. This is something Miss B needs to address with the health authority responsible for meeting C’s health needs.

The complaint about the information given to Miss B

54. I do not consider I can add to the Council’s earlier responses to Miss B covering the extent of information provided to her about her personal budget. I have seen the correspondence it refers to, sent by its contractor. I am satisfied this does break down the budget Miss B receives and was sent to her in good time or when requested. The Council has also explained the personal budget is not an amount set in stone, but one that can take account that of extra costs incurred to meet needs. It has approved additional payments to the contractor accordingly. So, it is not at fault here.
55. But more generally, I am disappointed to note is not a ‘joined up’ service enabling parents to set up personal budgets for both education and health needs. I cannot investigate or make any findings about how local health services approach this matter. But the Council has noted my concern and agreed action set out below that I hope will improve this service, as part of its learning from this complaint.
56. I also welcome that the Council has made some offer to give advice to Miss B on how she can recover the costs of any services appearing in Section G of C’s EHC Plan - if she has paid for these or has invoices outstanding. I understand that it wants Miss B’s consent before it approaches health service organisations and I think that fair. Building on this approach, the Council has agreed more specific action which is also set out below.

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Agreed action

57. The Council has accepted my findings. It has agreed to undertake the following actions, which are in addition to the symbolic payment of £850 it has already offered to Miss B and which I support. It should therefore ensure that within 20 working days of this decision Miss B has received that payment and that it has:
1. provided a further apology to Miss B accepting the findings of this investigation and taking account of the Ombudsman’s published guidance on remedies (section 3.2);
2. given Miss B a named point of contact for her to seek a refund of any costs incurred to meet any services appearing in Section G of C’s EHC Plan (October 2022 version) or a personal budget to commission them in the future;
3. clarified what time period the £760 offered to cover pool hire costs for C’s hydrotherapy covers. It should also invite Miss B to provide details of any additional costs she has incurred in meeting C’s hydrotherapy costs since the beginning of the 2022/23 academic year. The Council will agree to refund any additional amounts spent until such time the pool hire stopped, subject to any reasonable proof of costs it may require. It will allow Miss B a minimum 20 working days to provide this;
4. invited Miss B to consider any evidence she has of further physiotherapy costs for education provision C receives during term times that she considers have not been met by the personal budget. She will be given not less than 20 working days to provide that information, and the Council will commit to reviewing its position within 20 working days of receipt.
58. If there is any dispute over the implementing the actions recommended at paragraphs 57 c) and d) then Miss B or the Council should contact this office. For example, if the Council does not consider Miss B has provided satisfactory proof of costs. We will either seek to resolve as part of our remedy compliance procedure or open a new investigation. If we open a new investigation, we do not expect Miss B to go through the Council complaint procedure first.
59. As well as the personal remedy detailed above, the Council has agreed to improve services as a result of this complaint. Within three months of this decision, it will try to arrange a meeting with health service commissioning bodies to discuss how it can improve any current arrangements and publicity materials to support parents / carers who may want to request a personal budget to meet both education and health needs identified in an EHC plan. Assuming the commissioning bodies agree to the meeting, the Council will also write to us to tell us the outcome of that meeting and actions agreed.
60. The Council will also be expected to provide us with evidence it has complied with the actions detailed at paragraph 57 above.

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Final decision

61. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Miss B. The Council has agreed action, in addition to that it has already offered, that I consider will remedy that injustice. Consequently, I have now completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman