Summary: Mrs X complained the Council did not provide information she requested about applying for a personal budget to secure the specialist educational provision set out in the Education, Health and Care Plans of her two children. The Council failed to provide Mrs X the information she requested which caused her avoidable frustration. The Council will apologise and now provide her with the personal budget information she requested.

The complaint

1. Mrs X complained the Council did not provided information she requested about applying for a personal budget to secure the specialist educational provision set out in the Education, Health and Care Plans of her two children. Mrs X said this prevented her from applying for a personal budget. Mrs X wanted the Council to provide the information she had asked for.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

5. I read the documents Mrs X provided and discussed the complaint with her on the phone.
6. I considered the documents the Council sent in response to my enquiries.
7. Mrs X and the Council 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

Relevant legislation and guidance

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
9. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
10. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
11. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

The Council’s information

12. The Council’s website says it will discuss personal budgets during the process of developing an Education, Health and Care Plan and during the annual review of the Plan. There is not a separate application process. It also says is it will provide parents information, advice and guidance when they are considering and managing a personal budget.

What happened

13. Mrs X has two children Y and Z. They both have neuro-differences and additional needs. The family lived in a different council area (Council B). Council B issued an EHC Plan for Y and an EHC Plan for Z in late summer 2023 that set out the specialist provision they needed.
14. At the end of August 2023 Council B told this Council that Y and Z had moved to its area.
15. The Council issued a draft amended EHC Plan each for Y and Z. It went on to issue amended final Plans at the end of October 2023 and further amended final Plans in February 2024.
16. At the beginning of March 2024 Mrs X asked the Council for information about personal budgets for Y and Z.
17. Mrs X wrote to the Council again at the end of March. She asked for information on how to apply for a personal budget.
18. Mrs X complained to the Council in April about several matters. The complaint included that the Council had ignored her request for information on securing personal budgets for her children.
19. The Council responded to Mrs X’s other complaints two days later but did not mention the complaint about a lack of information on personal budgets. Mrs X told the Council it had not responded to her complaint.
20. The Council told Mrs X she had not complained about a personal budget and it did not understand why Mrs X was requesting one. It told Mrs X to speak with an SEN officer about it.
21. Dissatisfied with the Council’s response, Mrs X complained to us.
22. After further correspondence from Mrs X the Council accepted it had not responded to that point of complaint. It said it should have provided a response, but again directed Mrs X to the SEN officer for further advice.
23. In response to my enquiries the Council said it did not consider Mrs X’s request as it did not have a duty to because it was made at an inappropriate time and not during an assessment or review. It accepted it did not explain that to Mrs X.

Background information

24. In a recent decision we found fault in how the Council transferred Y and Z’s EHC Plans when they moved into its area. We found the Council was at fault because it issued amended final EHC Plans for Y and Z without carrying out a statutory review of either Plan.

My findings

25. The Council’s website is clear there is no separate application process for a personal budget for a child’s EHC Plan and it will be discussed with the parent. It also states it will provide information, advice and guidance when a parent is considering a personal budget. Mrs X asked the Council for information on how to apply for a personal budget for her children’s EHC Plans. The Council did not respond or provide any information, advice or guidance. That was fault and caused Mrs X frustration.
26. The Council said it did not consider Mrs X’s request for a personal budget because she had not requested it at the correct time. I am not persuaded by that argument for the following reasons:
• Mrs X had not requested a personal budget, she had requested information about how to apply for one;
• there is no contemporaneous evidence the Council considered Mrs X’s request for information at the time at all; and
• the Council has not completed a needs assessment, or an annual review for either Y or Z’s EHC Plan and so it has not provided Mrs X the opportunity to make the request at an appropriate time.
27. The Council failed to respond to Mrs X’s complaint on this matter. Initially it failed to recognise it as a complaint. When it was persuaded to do so by Mrs X it said it had not considered it and redirected Mrs X to a SEN officer without providing a complaint response. That was fault and caused Mrs X frustration.

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Agreed action

28. Within one month of the final decision the Council will:
1. write to Mrs X and apologise for the avoidable frustration she has been caused by the Council’s faults; and
2. contact Mrs X and provide the information she has requested about personal budgets; and
3. remind Council officers responding to complaints to ensure it provides a full complaint response when it becomes aware it has omitted to respond to a point of complaint initially.
29. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
30. The Council will provide us with evidence it has complied with the above actions.

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Final decision

31. I have completed my investigation. I found fault causing injustice and the council agreed to my recommendations to remedy that injustice, and avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman