Summary: Mr B complained about how the Council dealt with his education, health and care plan, college placement, social care budget and complaint. The Ombudsman cannot consider complaints about the college statement named on Mr B’s plan and the Council was not at fault for failing to put in place a plan to enable him to attend the college named on his statement. The Council delayed reviewing the education, health and care plan, delayed putting in place a social care budget, wrongly sought a financial contribution from Mr B and failed to deal with the complaint properly. That caused Mr B’s parents to have to go to time and trouble to pursue their complaint and caused them distress. An apology, payment to Mr B’s parents, setting up a process to ensure the social care budget is paid promptly and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• failed to take steps to enable him to attend the college named on his education, health and care plan in 2017;
• delayed arranging a review of his education, health and care plan which it later scheduled for 30 January 2018;
• unreasonably adjourned the 30 January 2018 review meeting as he was not present when he was not required to be there;
• failed in 2018 and again in 2019 to put in place his social care budget;
• unreasonably asked him on two occasions for a financial contribution when that was not appropriate;
• delayed considering his complaint;
• unreasonably split the complaint consideration between two separate teams which added to the delay;
• failed to send either him or his representative the complaint response sent to the Ombudsman on 25 October 2019 and failed to ensure the complaint response was completed by an independent person;
• delayed gathering evidence for tribunal;
• failed to consider the difference in cost between the college identified by Mr B’s parents and the college identified by the Council until the appeal hearing in July 2018; and
• delayed accepting Mr B’s chosen college as suitable.

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What I have investigated

2. I have investigated all parts of the complaint with the exception of the final three bullet points in the previous paragraph. The final section of this statement contains my reason for not investigating those parts of the complaint.

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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. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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

7. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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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What I found

Background – special educational needs

10. Mr B is a young adult and has an education, health and care plan (the plan). In 2016 Mr B’s parents asked the Council to name a college they considered suitable in Mr B’s plan. The Council issued a final statement naming a different college. Mr B’s parents appealed that decision. The tribunal decided the college named on the plan could meet Mr B’s needs and should be named. Mr B’s parents appealed that decision to the upper tribunal, which refused the appeal.
11. In January 2018 the Council apologised for delay setting a review date for the plan. The Council invited Mr B to a review meeting on 30 January 2018. The Council reminded Mr B he could still take up his place at the college named on his plan. Mr B’s representative reiterated the family did not consider the college named on the plan a suitable placement.
12. At the end of February 2018 the Council issued a proposed amended plan. The Council issued the final plan at the end of March. The plan again named a college Mr B was not happy with. Mr B’s parents appealed. By the tribunal hearing the Council had carried out a calculation to find out how much extra the college Mr B wanted to attend would cost and conceded the appeal. The Council issued a final plan naming the college chosen by Mr B in August 2018. Mr B began attending the college in September 2018.
13. The Council set up an annual direct payment to cover the cost of the periods where Mr B was not at college. The Council did not put that into payment until December 2018. The Council at first sought a financial contribution from Mr B towards that package, which it now accepts was wrong.
14. Mr B’s representative put in a complaint on 1 February 2019. The Council responded to the complaint on 25 September. Mr B’s representative raised concerns about the Council’s response, which it responded to on 25 October 2019. The Council accepts it did not send Mr B’s representative a copy of the letter at that point.
15. The Council made the annual direct payment for the college year 2019/2020 to Mr B in December 2019.

Analysis

16. Mr B says the Council failed to take steps to enable him to attend the college named in his plan in 2017. Mr B says the Council made no arrangement for transition or plan and instead the college named on the statement sent him transport on the first day of term without any preparation. Having considered the documentary evidence, I note in May 2017 the college named in Mr B’s statement told the Council it had tried to arrange taster days for Mr B. The college told the Council Mr B and/or his parents had declined those offers. I therefore do not consider the Council made no attempt to make arrangements for Mr B to visit the college before he was due to start.
17. I am aware though that although Mr B had not undertaken any preparatory visit to the college it is nevertheless put in place transport from the first day of term. I understand Mr B’s concern about that. However, the documentary evidence I have seen satisfies me, on the balance of probability, Mr B would not have attended the college named on his statement even if the Council had put in place a proper plan. I say that because all the communications from Mr B’s parents and his representative about the college made clear he would not attend as he did not consider it suitable for his needs. In those circumstances I do not criticise the Council for the failure to put in place a plan before the start of the college year. Certainly I do not consider Mr B has suffered any injustice from the lack of a plan given my view that he would not have attended the college anyway as he did not consider it suitable for his needs.
18. Mr B says the Council delayed arranging a review of his education, health and care plan. Mr B says his representatives had to intervene on his behalf before the Council arranged a review meeting for January 2018. The documentary evidence shows when the Council transferred Mr B’s statement to an education, health and care plan it intended to review that plan in November 2017. I do not criticise the Council for not completing the review in November 2017. That is because at that point Mr B was appealing the decision of the original tribunal about the college named on his plan. That appeal did not complete until 28 November 2017. As the Council would have had to make amendments to the plan if the appeal had been successful, which would have affected the review, I do not criticise the Council for failing to arrange the review in November 2017. However, I consider the delay in carrying out the review until the end of January 2018 fault. I consider an apology a suitable remedy for this part of the complaint. The Council has agreed to that.
19. Mr B says the Council unreasonably adjourned the review meeting in January 2018 because he was not present. Mr B says the Council should not have done that because his mother was present to represent his views and he was not required to attend the meeting in person. The first point to make here is the special educational needs code of practice says reviews ‘must’ be undertaken in partnership with the child and their parent or the young person. That suggests the child or young person should be present, although it does not specifically state that. In general terms the Ombudsman would expect the Council to involve the child or young person in meetings about the plan unless there are specific reasons for the child or young person not wanting to take part. In those circumstances there should still be an opportunity for the child or young person to feed in their own views about the plan, rather than simply being represented by a family member, particularly when the young person is an adult. In this case though I have not identified any documentary evidence to suggest the review on 30 January 2018 was adjourned because Mr B was not present. Rather, the documentary evidence shows Mr B was present and the review was completed, with a revised draft plan issued at the end of February 2018. I therefore have no grounds to criticise the Council.
20. Mr B says the Council failed in 2018 and 2019 to put in place his social care budget. The evidence I have seen satisfies me the Council should have put in place the direct payment funding when Mr B began attending college in September 2018. I have seen no evidence to suggest the Council put in place funding until December 2018. That is fault. I am concerned about that because this was after the first half term holiday when Mr B should have been able to access his direct payments. I am also concerned a similar problem occurred in 2019. The evidence I have seen satisfies me the Council did not release the direct payment until December 2019 which was again after the first half term holiday. That delay is fault.
21. The Council accepts it asked Mr B for a financial contribution towards his social care costs when that was not appropriate. That is fault.
22. The evidence I have seen satisfies me although Mr B put in his complaint in February 2019 the Council did not issue its first response until 25 September 2019. That delay is fault, which the Council accepts. I consider part of the reason for the delay was because the Council was attempting to split the complaint between two different services, which it accepts was not appropriate. That is also fault. The Council also accepts it failed to send the further response to Mr B on 25 October 2019 which meant the first he knew about it was when the Ombudsman provided him with a copy. That is also fault. In addition to that the Council accepts the second complaint response should have been considered by an independent person, rather than the person that responded to the first complaint. That again is fault.
23. I am satisfied the fault I have identified in this statement caused Mr B’s parents to have to go to time and trouble to pursue his complaint. It is also likely the delay putting in place the direct payment caused Mr B’s parents distress and led to them having to fund Mr B’s social care during both half term holidays in October 2018 and 2019. As remedy for the complaint I recommended the Council apologise to Mr B and his parents. The Council has agreed to that. The Council has already offered £500 to reflect the distress and time and trouble Mr B’s parents had to go to pursuing the complaint. I consider that a satisfactory financial remedy. I further recommended the Council provide evidence it has put in place a process to ensure Mr B’s annual direct payment is issued on time and before the first half term holiday in the school year September 2020-July 2021. In addition I recommended the Council write to those dealing with complaints to remind them of the process and to officers dealing with financial assessments to ensure they are clear when a financial assessment is necessary. The Council has agreed to my recommendations.

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Agreed action

24. Within one month of my decision the Council should:
• apologise to Mr B and his parents for the faults identified in this statement;
• pay Mr B’s parents the £500 the Council has already offered, if it has not already done so;
• provide evidence to the Ombudsman that the Council has put in place a process to ensure Mr B’s annual direct payment is issued at the start of each college year; and
• send a memo to those dealing with complaints to remind them of the process for considering complaints, particularly in relation to timescales, how complaints about different services are managed and who should respond to a complaint at each stage.
25. The Council has already sent a memo to officers dealing with financial assessments to ensure they are clear when a financial assessment is necessary.

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Final decision

26. I have completed my investigation and found fault by the Council in part of the complaint which caused an injustice to Mr B and his parents. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

27. Mr B complained about the Council delaying gathering evidence for tribunal, delay accepting his chosen college as appropriate for his needs and failure to consider the difference in cost between that college and the college identified by the Council until the appeal hearing in July 2018. I have not investigated those points. That is because those matters relate to the tribunal process and the appeal in relation to the college named in the statement. As I said in paragraph 4, the Ombudsman does not have jurisdiction to consider matters where there is an alternative route for remedy or where that alternative route has been pursued.

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Investigator's decision on behalf of the Ombudsman