Summary: Mrs J complains about a delay by the Council in increasing the hourly rate it paid her for Speech and Language Therapy her daughter needed. And that it expected her to pay the costs and then claim them back. The Ombudsman upholds the complaint, because of a delay in increasing the direct payment. And faults in how the Council communicated to Mrs J about the direct payments. The Council has agreed to our recommendations.

The complaint

1. The complainant, who I shall refer to as Mrs J, complains the Council:
• delayed paying her for the increased cost of a specialist Speech and Language Therapist (SaLT) a tribunal decided her daughter (whom I shall refer to as K) needed adding to her Education and Health Care Plan;
• has expected her to pay the therapy costs and then claim them back. But there is no provision in the Regulations requiring a parent to pay for the services commissioned and then request reimbursement.

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What I have investigated

2. Because of the case-law outlined in paragraphs 4-6, I have only considered matters from the date of the second SEN Tribunal’s decision (18 June 2019).

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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 parents or a young person disagrees with the content of an EHC Plan or the proposed placement, they can appeal to the First Tier (Special Educational Needs and Disabilities) Tribunal (the ‘SEND Tribunal’).
5. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
6. What this means is the Ombudsman has no jurisdiction where a parent has appealed to the SEN Tribunal from the date the SEN appeal right arises (i.e. when the Plan is issued not the date the appeal is lodged) until the appeal is completed.
7. If we are satisfied with a council’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. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs J;
• made enquiries of the Council and considered its responses;
• spoken to Mrs J;
• sent my draft decision to Mrs J and the Council and considered their responses.

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What I found

Legal and administrative background

9. A child or young person has special educational needs (SEN) if they have a learning difficulty or disability which calls for special educational provision to be made for them. Most children have these needs met within local early years, mainstream school, or college settings.
10. Some children or young people may require an Education, Health and Care (EHC) assessment by the local authority, to decide whether it is necessary to make provision in accordance with an EHC Plan.
11. The Children and Families Act 2014 (which I shall refer to as ‘the Act’), the Special Educational Needs Code of Practice 2015 (‘the Code’) and the Special Educational Needs and Disabilities Regulations 2014 (‘the SEND Regulations’) provide detailed guidance to councils about how they should manage the process:

• of assessing children and young people for an EHC Plan;
• the content of the Plan;
• how to implement, monitor or cease a Plan.

12. In 2014, the law for SEN changed. The Children and Families Act 2014 told local authorities to replace the old system of ‘Statements’ with EHC Plans. They had until 1 April 2018 to complete all these ‘transfer reviews’.

Personal budgets and direct payments

13. A personal budget is an amount of money that allows parents or young people to have some involvement in arranging provision. The Act says councils must offer a personal budget to most parents or young people who wish to receive them. One of the ways a council can pay a personal budget is via a ‘direct payment’ to the parent or young person.
14. The Special Educational Needs (Personal Budgets) Regulations 2014 (‘the Personal Budget Regulations’) say, before a council can make a direct payment, it needs to provide the recipient with a written notice specifying:
• the name of the child or young person in respect of whom direct payments are to be made;
• the goods or services which are to be secured by direct payments;
• the proposed amount of direct payments;
• any conditions on how direct payments may be spent;
• the dates for payments into the bank account approved by the local authority.

On receipt of that information the recipient must agree, in writing, to several conditions. (The Special Educational Needs (Personal Budgets) Regulations 2014, Regulation 8)

15. The Code says local authorities must have 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.” (para 9.96)

16. The Council’s Personal Budget Policy says:
• a recipient needs a separate bank account to receive the direct payments;
• the Council will monitor the personal budget through the EHC Plan review process. It had the right to withdraw a personal budget that was not being used to meet the provision or outcomes outlined in the EHC Plan.

What happened

17. K has been receiving specialist Speech and Language Therapy (SaLT) since 2010. She moved to secondary school in 2016 and this continued. In 2017 she was assessed and diagnosed with an autism spectrum disorder.
18. In March 2018 the Council reviewed and transferred K’s special educational provision to an EHC Plan.
19. Around the same time, the Council changed the way it provided SaLT. It moved most children from independent SaLT, to provision commissioned from the NHS, via a new contract. It says this is a more cost-effective way to deliver therapy. The independent SaLT K was using charged £75 an hour. The cost to the Council of the NHS provision was £41.
20. After the Council changed its policy, Mrs J continued to use the independent therapist to provide K’s SaLT. The Council says it has since paid Mrs J for SaLT K received from the independent therapist between March and September 2018.
21. After the Council changed the way it provided the SaLT, Ms J appealed the EHC Plan. On 5 February 2019 a Tribunal did not uphold Mrs J’s appeal.
22. On 9 February the Council wrote to Mrs J saying it agreed a request she had made for a personal budget for K’s SaLT. It would pay £41 per hour. It advised Mrs J of her duties as an employer. It also noted Mrs J would:

“need to confirm that you agree to:-

• Receive the direct payments;
• Use the direct payment only to secure the agreed provision;
• Comply with any conditions specified above;
• Notify the local authority of any changes in circumstances which might affect the need for the agreed provision;
• Use the bank account approved by the local authority solely for the purposes of the direct payments;…and
• Keep a record of all receipts, money paid in and withdrawn from the bank account approved by the local authority, and, on request, or at intervals specified by the local authority, provide the local authority with information or evidence relating to: -

(i) The account; and

(ii) (ii) The agreed provision.”

It enclosed a copy of its personal budget policy

23. On 15 March an upper Tribunal set aside the first tier Tribunal’s decision, based on an error of law.
24. Mrs J and the Council were in correspondence during March about how the Council would pay Mrs J the direct payment. The Council was asking Mrs J to pay the fees and then claim the payment back. Mrs J questioned whether the Regulations allowed this and asked the Council to pay her first. The Council’s response mentioned the possibility of paying her a float.
25. On 21 March the Council emailed Mrs J advising:
• the amount the Council would pay as a direct payment for K’s SaLT was set in its commissioning arrangements. And, as the NHS had confirmed it had somebody who could deliver the SaLT provision, the Council would not pay at a higher rate;
• it acknowledged a problem with its policy that it did not specify how the Council would make payments;
• it could pay her in advance;
• where the information about appeals was in its policy.
26. At the end of March the Council paid Mrs J a ‘float’ of £533. It says this was equivalent to 13 weeks of direct payment at £41 an hour. Mrs J contacted the Council shortly after and asked what the payment was for. When the Council clarified this, she advised the Council she did not want the personal budget provided in this way and asked to send it back.
27. On 1 May the Council wrote again to Mrs J explaining the payment it made her was for the SaLT for a term in advance.
28. On 18 June a new Tribunal decided the Council should amend the EHC Plan to include the need for ‘specialist’ SaLT – that is a SaLT experienced in working with children with autism spectrum disorders. The Council finalised the EHC Plan on 11 July.
29. In September K moved to a new school.
30. K continued to receive SaLT from the independent therapist. In October, Mrs J contacted the Council asking when she would be paid for the SaLT. She noted she had more receipts to send. This prompted the Council to email the NHS, asking if it could provide the specialist SaLT outlined in the EHC Plan.
31. Mrs J chased a response to her October email in early November, saying if the Council did not respond she would complain to the Ombudsman.
32. The Council’s November response to Mrs J advised it would first need to know if the NHS could provide the SaLT. Later in November, the Council advised Mrs J the NHS said it could provide the specialist SaLT. So the Council could only cover the SaLT cost at £41 an hour. It advised Mrs J of the appeals process.
33. On 18 November Mrs J asked the Council to pay her the personal budget at £41 an hour. But she also asked to complain:
• that she had never asked for a referral to the NHS service;
• about late payments;
• about the Council’s justification for paying the specialist provision at only £41 an hour.
34. Mrs J also sent the Council further invoices for SaLT K had received. The Council’s accounts team advised the relevant officers that there would be a delay in arranging payment, due to the fact the invoices Mrs J sent did not bill the Council in the way it usually needed.
35. It is unclear from the Council’s records why it does not have a response to Mrs J’s November 2019 complaint. But Mrs J does not seem to have taken any further action about this until 4 May 2020, when she complained again. Her complaint was the Council had not increased the amount it was paying her for the SaLT.
36. An internal Council email of 21 May said it had agreed to fund K’s personal budget from February 2019, the date Mrs J signed the agreement. But it would be at the commissioned rate of £41 an hour. It would need to work out the balance owing.
37. Mrs J instructed a solicitor, about the direct payment and another matter connected with K’s education (the subject of a separate complaint). The solicitor wrote to the Council in June.
38. In July the Council responded to Mrs J’s solicitor. It advised:
• it accepted that, from 11 July 2019, it should have been paying Mrs J a direct payment at the rate for a specialist SaLT (£75 per hour);
• it agreed to make Mrs J payments for invoices she had sent it, for the time after she signed the personal budget agreement. But it needed more detailed information from her;
• in future the Council would comply with the Regulations (see paragraph 14). But that would mean Mrs J would need to provide the Council with information the Regulations required her to do.
39. In August the Council wrote to Mrs J advising it would pay her £2094.50 for the invoices she had provided for SaLT between September 2018 and May 2020. It noted Mrs J had sent it invoices at the specialist rate going back to September 2018. But it had correctly paid at the NHS rate for the time before the amended EHC Plan. It paid her at £75 an hour from the date of the amended final EHC Plan.
40. The August letter also laid out detailed conditions for Mrs J. These set out what the direct payments were for, how she could receive payments and other conditions for receiving the direct payments in the future.
41. Mrs J complained to the Ombudsman. In response to my enquiries the Council provided its explanation of the basis on which it paid Mrs J a float for the direct payments and then expected her to claim further payments back from it:

“Whilst the Regulations are silent on this, the Council requires the presentation of invoices for the correct amount and reimbursement forms and receipts for any element over £250.00 in accordance with the Council’s Financial Regulations.”

42. The Council also advised it had changed its view about the amount it would pay for the SaLT on receiving legal advice, after contact from Mrs J’s solicitor. It said this advice was legally privileged, so it did not share it with the Ombudsman.

Was there fault by the Council?

The amount the Council agreed to pay for the SaLT

43. The Council has now accepted that, to meet K’s final EHC Plan’s requirement – for a specialist SaLT – it needed to pay Mrs J £75 an hour. But it took Mrs J seeking legal advice before the Council sought its own legal advice. The Council has not disclosed this advice. But, on the balance or probabilities, the Council could have made this decision earlier, without Mrs J having to threaten litigation. I note she had twice complained. I find fault with that delay.

The direct payments

44. Mrs J complains about the Council’s practice of expecting her to pay for therapy and then claiming it back from the Council. She says there is nothing in the Regulations that allow councils to do this. The Council disagrees.
45. The Ombudsman is not a substitute for the court. So it is not our role to make decisions on contested questions of fact and law: that requires the more stringent and structured procedures of civil litigation for its proper determination. So I cannot determine whether the Council was entitled to make the direct payments in this way.
46. But there are issues with the direct payments where I do find fault.
1. Being paid a float for a direct payment was a surprise to Mrs J. Neither the Council’s public information, nor its Personal Budget Policy, sets out this payment method. The Code says personal budget policies should set out ‘how … funding will be made available’. So I find fault with the lack of information on this payment method in the Council’s Policy.
2. I would have expected to see some record of advice or discussion about whether there were reasons to make an exception to the normal payment method.
3. The Council paid the float at £41 an hour. It should have adjusted this payment in July 2019, when it increased the amount hourly rate it agreed to pay. I can see no evidence the Council corrected this, once it changed its decision.
4. The Council’s letter to Mrs J, making her the written offer of the direct payment, did not contain enough detail about the specifics of the payment (see paragraph 22). That was fault and did not follow what the Personal Budget Regulations expected it to do. The Council seems to have accepted this error, as it later wrote to Mrs J providing a satisfactory statement of the direct payment arrangements.

Did the fault cause an injustice?

47. The Council has now paid Mrs J for the SaLT at £75 an hour, for the period this investigation considers. Caselaw says the Ombudsman cannot consider the payment for the period before the Tribunal’s decision.
48. The Council has now set out to Mrs J what the direct payment is for and the information it needs from her.
49. So the remaining injustice is:
• the avoidable frustration and stress Mrs J was put to, because of the faults;
• that Mrs J had to threaten legal action, with the resulting time and trouble, to get the Council to change its view;
• the amount of the float is an injustice that need resolving.

Recommended action

50. I recommended, that within a month of my final decision the Council:

• contact Mrs J to discuss if there are any reasons why it should make an exception to its usual payment method for the direct payment;
• needed to calculate how much the difference is between what it paid as a float and what the amount should have been if it had paid at £75 an hour;
• pay Mrs J £150 in recognition of the unnecessary stress the faults caused;
• pay Miss J £150 for the unnecessary time and trouble;
• write Mrs J a letter, apologising for the faults I have identified.

51. The Council has agreed to these recommendations. It says a manager will contact Mrs J to discuss the payment method.
52. I also recommended that, within three months of my final decision, the Council amends its Personal Budget Policy to provide a transparent explanation of the way it usually pays direct payments. In response, the Council advised it was reviewing its Direct Payments Policy, with an aim to complete this by October 2021. It says:

“…the specific detail regarding how payments will be made will be contained within a supporting guidance document, which will sit alongside the Policy. The Guidance will be created once the Policy has been signed off by the Senior Leadership Team and the intention is that this document will be available to parents, carers and young people.”

53. The Council should send a copy of the new policy and the supporting guidance document to the Ombudsman.

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Final decision

54. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman