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County council to back pay £8k in personal budget payments for child after Ombudsman finds "numerous and serious failings"

Surrey County Council will pay more than £9,000 to a mother after a Local Government and Social Care Ombudsman investigation found the local authority consistently made flawed decisions relating to her child's personal budget "by reason of not having robust systems and policies".

In its report, the Ombudsman said that the council had "fallen far below the standards of good practice" and had not "complied with legislation and statutory guidance".

The council has provided an Education and Health Care Plan (EHCP) for the child since 2016 as she has special educational needs. It began paying the mother £445 monthly to cover private tuition in June 2020.

By October 2020, the council decided that the personal budget was no longer required and subsequently emailed the mother to tell her the payments would end immediately.

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The mother first informed the council she wanted the decision to end the personal budget to be halted in November 2020. However, the investigation heard that the council did not action the review request until July 2021, seven months later. The Ombudsman found fault for the delay.

Ending the personal budget without giving notice to the mother and setting out clear reasons for the decision was also fault on the council's part, the Ombudsman found.

Furthermore, the Ombudsman found that the written record of the decision failed to outline any rationale for the decision to end the personal budget and did not stipulate which condition under section 14 of the Special Educational Needs (Personal Budgets) Regulations 2014 the council relied upon to bring this to an end.

The Ombudsman added that its investigation failed to uncover any evidence that the council informed the mother of her right to request a review of the decision in accordance with the 2014 Regulations. "I therefore find serious fault by the council. The decision to end the personal budget was flawed and Mrs R was not provided with any means to formally challenge it."

When the council finally reviewed its decision, it copy and pasted the text from another decision it had made with respect to another of the complainant's children. The Ombudsman said the council did not treat the decision with the "seriousness or professionalism it deserved", and the decision itself was not clear, well-considered or robust.

In March 2022, the council again considered whether it should maintain a personal budget for the child. The Ombudsman found that the council said it was reconsidering its decision to end the personal budget in October 2020. However, the council had already reviewed its decision which it should only do once, the Ombudsman noted.

"Therefore, [the mother's] request should not have been treated as a review, but a new request. There is an important distinction because consideration of a new request must carry a right of review under the 2014 Regulations, whereas a review does not."

The investigation also uncovered instances where the council delayed in conducting its annual review of the child's EHCP and a case in which the Ombudsman found no evidence of the council informing the mother whether it intended to cease, maintain or amend the EHCP within eight weeks of the review meeting. The Ombudsman found fault here as the council did not comply with the Code with respect to properly notifying parents of its decision not to amend an EHCP. "Moreover, this also means [the mother] was, in effect, denied her right to appeal the decision to the SEND Tribunal."

The Ombudsman concluded: "The Council has consistently made flawed decisions relating to Child B's personal budget by reason of not having robust systems and policies in place to support decision-making in this area.

He later added: "There has been a serious injustice caused to Mrs R in this case and the Council has agreed to my recommendations to remedy this."

In light of the findings, the Ombudsman recommended that the council apologise to the mother and child and provide full back payment of the child's personal budget from the date it ended this in October 2020. This amounts to £8,455.

"The Council will continue to pay Child B's personal budget each month going forward until such a time it makes a procedurally and legally compliant decision whether her personal budget should end," the Ombudsman added.

Furthermore, a payment of £1,000 will be made to the parent to acknowledge the serious distress, upset, and uncertainty she suffered. An additional £250 will be paid for the trouble in bringing the complaint, the Ombudsman said.

The Ombudsman said that changes to the council's policy relating to personal budgets and direct payments should also be made. Training will be provided to officers involved in making and recording personal budget decisions. And at a senior level, the council will review its systems and practices with respect to conducting reviews of personal budget decisions.

A Surrey County Council spokesperson said: “We recognise that there are significant challenges around delivering support for children with special educational needs and disabilities and we are committed to improving outcomes for these children so that they are happy, healthy, safe and confident about their future.

“We are not able to comment on any individual children specifically, however Surrey County Council implemented an ambitious SEND transformation programme in 2019 to ensure we always work in the best interests of every child and family, and we are determined that all children with special educational needs and disabilities grow up with the same opportunities as their peers.”

Adam Carey

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