Summary: Mr and Mrs B complained about the Council updating their daughter’s EHCP following a decision by the tribunal and delay in making the provision. There was fault by the Council which caused injustice to Mr and Mrs B and their daughter. The Council will remedy this by apologising and making a payment.

The complaint

1. I call the complainants Mr and Mrs B. They complained the Council:
• did not provide an updated, correct EHCP for their daughter following a SEND tribunal order in April 2020;
• did not put the therapeutic provision in the EHCP in place;
• refused to respond to a request for a personal budget to allow the family to commission the therapies named on the EHCP and then, when it did agree, delayed in putting it in place;
• about comments made by the Council’s representative at the tribunal; and
• refused to accept a new complaint regarding all these matters.
2. As a result their daughter did not get the provision to which she was entitled as soon as she should and Mr and Mrs B had increased stress in pursuing the matter with the Council. Mr and Mrs B considered this to be a further example of ongoing problems they have had with the Council.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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 provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
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. I considered the complaint and documents provided by Mr and Mrs B and spoke to Mrs B. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.
8. 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

Summary of the relevant law and guidance

9. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
11. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Summary of key events

12. This complaint concerns Mr and Mrs B’s daughter, who I will refer to as X, who has an EHCP. They made another complaint to the Ombudsman but this complaint only concerns events since the SEND tribunal in April 2020.
13. The tribunal decided the amount and nature of the support X should receive. This referred to occupational therapy (OT) support, speech and language therapy (SLT) provision and involvement of the Autistic Spectrum Disorder (ASD) team.
14. At the end of May Mr and Mrs B told the Council that the EHC plan it had issued did not accurately reflect the tribunal’s decision. The Council reissued it. At the beginning of June Mr and Mrs B asked the Council to provide them with a personal budget so they could make the OT and SLT provision directly.
15. Over the summer there was correspondence between Mr and Mrs B, their advocate and the Council. At the end of August the Council agreed to a personal budget to provide the OT and SLT specified in the plan for X.
16. There was further correspondence over the autumn about the exact level of support and personal budget necessary.
17. The Council made a payment to Mr and Mrs B in early-December and then a further payment in January 2021.

Analysis

18. The focus for us when considering any complaint is whether the complainant has suffered significant injustice as a result of fault by the Council. The most important issue here is whether X missed provision because of a failing by the Council.
19. There is no dispute the first version of the EHC plan issued following the tribunal was incorrect in how it described the OT provision. Mr and Mrs B understandably questioned it when they received it. I cannot be certain when exactly the significant errors in the OT provision were corrected although the version issued at the end of July was correct on the major issues.
20. But, by this point, events had moved on because Mr and Mrs B had requested the provision be made through a personal budget. The reason they made this request was because of comments they say were made by the Council’s representative at tribunal hearings. They say she said the NHS would not be willing to work with them. This is also reported by Mr and Mrs B’s advocate who was present at the tribunal hearings and wrote to the Council about it. Mr and Mrs B told the Council this was the reason for the personal budget request.
21. The Council did not directly address this issue in its correspondence with Mr and Mrs B. I refer to complaint handling further below. But nothing useful would be achieved by asking the Council to consider this point further now. The Council agreed to the personal budget so further examination of Mr and Mrs B’s points would not make any difference on that key point. Also, we cannot consider the matter at the heart of this as that happened at the tribunal and that is outside our jurisdiction.
22. Once the Tribunal had ordered the changes to the EHC plan the Council had five weeks to implement them. As I say, this was overtaken because, by asking for a personal budget, Mr and Mrs B were, in effect, asking for a further change to the plan. The Council said the NHS could make the provision specified but this was not pursued because Mr and Mrs B’s position had changed.
23. The Council agreed to look at a personal budget in its response to Mr and Mrs B at the end of July. And an actual sum was proposed at the end of August. There was some slight delay here by the Council – no reason has provided why this decision could not have been made sooner. I therefore conclude it would have been possible to get to this point within six weeks of Mr and Mrs B’s request.
24. There was some correspondence between Mr and Mrs B and the Council and at the end of October Mr and Mrs B said to the Council that the personal budget proposed did not include all the provision specified by the tribunal. This shows there was failure by the Council to progress the direct payment following the agreement in August.
25. Following further exchanges between the Council and Mr and Mrs B they provided up-to-date costings for the personal budget at the end of November. Based on that the Council agreed to increase the personal budget payment. The Council made payments in December and January which covered all the sums due.
26. There was delay by the Council which meant the payment of the personal budget was delayed, in total, by about four months. That caused injustice to X. Some of the provision was intended to help her when she started secondary school in September, and some was for ongoing provision. It also caused additional stress to Mr and Mrs B and the time and trouble in having to pursue the matter.

Complaint handling

27. In June 2020 Mr and Mrs B asked the Council to accept a complaint about ongoing matters. The Council refused to do so because there was a current complaint with the Ombudsman. This was not the right. Mr and Mrs B were trying to complain about the ongoing issues following the tribunal in April. Our investigation was considering older matters and would not take in the ongoing issues. The Council should, therefore, have taken this complaint at that point. This could then have also addressed the issues Mr and Mrs B were raising about the comments made to the tribunal.

Agreed action

28. The Council will apologise to Mr and Mrs B for the faults found. It will also make a make a payment of £300 to reflect the delay in the provision for X and £150 in recognition of the impact on Mr and Mrs B. It will complete this action within one month of the final decision.

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Final decision

29. There was fault by the Council which caused injustice to Mr and Mrs B and X.

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Investigator's decision on behalf of the Ombudsman