Summary: There was fault by the Council, because it did not properly consider how support required by two children’s education, health and care plans would be funded. This meant the complainant had to provide the support instead. The Council also failed entirely to commission input from an educational psychologist for one of the children, despite this also being a requirement of their plan. And the Council wrongly told the complainant it could not offer a remedy for these faults. The Council has agreed to offer the complainant financial remedies for the different faults, and also to take steps to improve its complaint handling.

The complaint

1. Mrs C complains the Council has failed, for several years, to implement provision set out in her children’s education, health and care plans. Specifically, she says:

• both children should have received 1:1 support from a personal assistant to help them access their education; and
• H should have received termly involvement from an educational psychologist.

2. Mrs C says she has been providing the 1:1 support herself in place of a personal assistant, which means she has been unable to work. She considers the Council should now reimburse her for her time.
3. Mrs C also considers the Council should offer H a financial remedy for the educational psychologist support she has missed.

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Legal and administrative background

4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Education, health and care (EHC) plans

8. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them.
9. The EHC plan is set out in sections which include:

• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 

10. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

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How I considered this complaint

11. I discussed the complaint with Mrs C, examining relevant documents and writing to the Council to seek clarification on several points.
12. I also shared a draft copy of this decision with each party for their comments.

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What I found

13. Mrs C has two children, P and H, both of whom have significant learning difficulties. The Council has agreed these difficulties mean it is not appropriate for either child to attend school; and since 2018 they have been subject to education, health and care (EHC) plans, which set out a package of education other than at school (EOTAS) for them.
14. The EOTAS packages include a number of hours of tuition, along with several extracurricular activities, such as a visit to a museum or similar educational establishment. The plans also state P and H should receive “1:1 support at all times”.
15. Since January 2019, H’s plan has also included a requirement that their curriculum be monitored “at least termly” by an educational psychologist (EP). The Council added a similar provision to P’s EHC plan in its latest version, dated October 2022.
16. Both plans also include a personal budget. This is a sum of money to be provided by the Council to Mrs C, to allow her to commission and pay for the various elements of provision listed in the plans.
17. In May 2022, Mrs C submitted a formal complaint to the Council. She said, despite agreeing to fund 1:1 support since 2019, neither P nor H had ever received this. Mrs C said she had brought this matter up again several times in the interim, including in a formal complaint in 2021, but it had never been resolved.
18. The Council responded to say there was “no reference to 1:1 support [in the children’s EHC plans] … other than 1:1 support with the tutor”, and that it did not form part of the personal budgets. It said 1:1 support had been discussed during the review of H’s EHC plan in 2021, but this had not led to a formal request. The Council said it could therefore not comment on this complaint, and suggested Mrs C bring the matter up again at the children’s next EHC plan reviews.
19. Mrs C submitted a separate complaint in June, in which she complained that neither P nor H had received termly monitoring by an EP, as set out in their EHC plans.
20. In its response, the Council accepted this requirement was included in H’s EHC plan and upheld Mrs C’s complaint. It said it could not explain why this had never been implemented, because the relevant officers no longer worked for the Council, but it would now make arrangements to do so. The Council asked Mrs C to confirm her availability for a date when an EP could contact her.
21. However, the Council said there was no similar provision included in P’s EHC plan, and it did not uphold Mrs C’s complaint in this respect.
22. Mrs C then escalated her complaints to stage 2 of the Council’s complaint process. She said the Council had had a duty since 2019 to provide 1:1 support to both P and H; and in failing to do so had caused her hardship, as she had been forced to perform this role herself and thus was unable to work.
23. The Council said it had provided personal budgets to allow Mrs C to put the required support in place, but that it would review the level of 1:1 support necessary to cover lunch breaks and travelling time. However, it said “the complaints process is separate from a compensation claim” and that, if Mrs C wished to pursue a compensation claim, she should request information about the process from the Council.
24. On the EP issue, the Council said EP involvement was now included in P’s EHC plan. It accepted fault because H had not been receiving this provision, but noted that some of the time in question had been during the COVID-19 lockdown period, which had affected its capacity to provide EP. However, the Council conceded it may have been able to arrange online contact during this period, and that no EP contact had occurred even after lockdown restrictions had eased.
25. The Council offered Mrs C £1900 as a remedy for her complaint, although this was in relation to the other elements (not described here) and not the 1:1 support or EP issues.
26. Mrs C referred her complaint to the Ombudsman on 1 October.

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Analysis

27. I will address each element of Mrs C’s complaint separately.
28. First, I must explain a restriction on our jurisdiction. The law says a person should approach the Ombudsman within 12 months of becoming aware of an issue they wish to complain about. This is called the ‘permitted period’.
29. The law allows us some flexibility around this rule, and so we can disapply it where we consider it appropriate. However, we must first be satisfied there are good reasons for a person’s delay in approaching us, and also that it remains possible to meaningfully investigate the complaint and remedy any injustice which we identify.
30. In this case, Mrs C says the Council did not provide the required 1:1 support for P and H, or the EP support for H, from when they were first set out in their EHC plans in January 2019, to approximately September 2022, a period of more than three and a half years. However, she did not refer this matter to the Ombudsman until October 2022.
31. There is no suggestion that Mrs C was unable to approach the Ombudsman sooner, and indeed I note she says she pursued relevant complaints with the Council in the interim. I therefore consider it was reasonable to expect her to have made her complaint within the permitted period, and so I will not disapply the 12-month rule.
32. As the faults Mrs C allege were ongoing until September 2022, I can still investigate her complaint. And I can refer to events which happened before October 2021, where it is necessary for context. But I will only consider any injustice to Mrs C which occurred within the 12 months preceding her complaint, from October 2021.
33. I now turn to Mrs C’s substantive complaints.

Lack of 1:1 support

34. Since the beginning of 2019, both P and H’s EHC plans have set out they should receive 1:1 support “at all times”. The purpose of this support is to “help [them] achieve sufficient stimulation for [them] to then be in the best place to engage for learning”.
35. Conscious there was no suggestion the children need 24/7 care and support, I asked the Council to explain what it meant by “at all times”. It responded:

“The provision of ‘1:1 support at all times’ was agreed by the Lead SEND officer in post at the time. It was intended that [the children’s] education provision was delivered on a 1:1 basis. The tuition and OT provision were already delivered on a 1:1 basis and therefore only the educational activities listed in section F required additional 1:1 support.

“At the time of the inclusion of ‘1:1 support at all times’ being agreed, the visits and activities totalled three hours per week, and this was therefore the level of additional 1:1 support required.”

36. I can see that the January 2019 versions of the EHC plans set out that P and H should have three hours of extracurricular activities per week, made up of three one-hour visits to different sites. On balance, I find this is what the Council is referring to, when it says the plans included three hours of ‘supported’ activities each week, at the time they were originally agreed.
37. However, the children’s plans have each since been reissued three times; in March 2019, March / June 2021, and October 2022 respectively. I have compared the relevant part of the plan in each one (Section F) and I cannot see any obvious difference between them. Despite this, the Council has now agreed the 1:1 support for each child should cover seven hours each week (with another seven and a half hours to cover travelling time and lunch breaks). It is not clear why the Council is saying the support was only intended to cover 3 hours per week originally, when what is essentially the same plan now involves 15½ hours of support per week.
38. The Council has also said its intention was that Mrs C should pay for the 1:1 support from the children’s personal budgets. I therefore asked the Council what portion of the personal budgets was meant for the 1:1 support. It replied:

“The personal budget amount was not broken down to specific hours in [the] EHC plans, and therefore a lump sum was recorded to deliver the provision in section F.”

39. Again, this response does not appear to be supported by the evidence, for several reasons.
40. First, the personal budgets have always been for very specific amounts, such as (at one point) £20,564.23. These amounts appear to be a total, added up from various smaller, specific costs; not, as the Council puts it, a ‘lump sum’, which implies a rather more estimated figure. This being the case, it should be possible to separate the cost of the 1:1 support from the other elements the personal budget was intended to fund.
41. Second, one of Mrs C’s other complaints to the Council was that the children’s personal budget accounts were running very low on funds, because the Council had failed to monitor and top them up as necessary. The Council accepted fault on this point and rectified the problem.
42. However, I note there is no suggestion from the Council that Mrs C was misusing the accounts or overspending on the other elements from the EHC plans. Therefore, if part of the money in the children’s accounts was intended to pay for the 1:1 support, then logically this money should still have been there, as Mrs C was not spending it.
43. Third, until now, the ‘personal budget’ sections of the children’s EHC plans (Section J) have included only a general summary of the agreed provision, without specific costings for each element. This has changed in the most recent version of the plans, which now include a detailed breakdown of the costs for each element, including (unlike before) the 1:1 support. And the personal budgets in these plans are very significantly higher than in the previous versions – in fact more than double what they were before.
44. The Council says that, as a learning point from Mrs C’s complaints, it will now provide a costed breakdown of personal budgets, hence this change in the most recent versions of P’s and H’s plans. This is positive. But the contrast between this and the less-detailed budgets in the previous plans imply that funds for the 1:1 support were not previously included.
45. At paragraph 9.102 in its section on personal budgets, the SEND Code of Practice says:

“The final allocation of funding budget must be sufficient to secure the agreed provision specified in the EHC plan and must be set out as part of that provision.” [emphasis in original]

46. On the balance of probabitlies, when the Council originally included the 1:1 support in the children’s EHC plans, I conclude it did not give meaningful thought to what this would look like in practical terms – including travelling time and lunch breaks. It also did not include any costed funding for it in the personal budgets. This is in direct contradiction to the Code of Practice, and meant it was not possible for Mrs C to actually arrange the support. This is fault.
47. Mrs C says the injustice she has experienced from this fault is that she has been forced to provide the 1:1 support for P and H herself. She says this has both been stressful, and has also meant she has been unable to work, causing a financial impact. I accept these are consequences arising from the Council’s fault, and I agree they represent an injustice to her.
48. To remedy this injustice, Mrs C considers she should be reimbursed at the same rate as the personal assistant who is now providing the 1:1 support, and for the same number of hours – that is £25 per hour for 15.5 hours per week, backdated to January 2019.
49. I should reiterate at this point I am only able to consider the injustice to Mrs C within the permitted period, which begins in October 2021 and not January 2019. But, either way, I do not consider it appropriate for us to recommend a remedy on the basis Mrs C has proposed.
50. Our published Guidance on Remedies says:

“Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.”

51. I do recognise the logic in Mrs C’s view. However, the fact she spent time supervising the children, when she should not have had to, does not mean I can say she was performing the exact role a professional assistant would have, to the point where she is due to receive (what is effectively) back-payment of an assistant’s wages. To say the Council should now pay her back at this rate requires several assumptions, which I am not in a position to make.
52. And, as our guidance says, the fact this is what it would have cost the Council, had it dealt with the matter properly, is not something I can calculate a remedy on.
53. Rather, I must instead define Mrs C’s injustice as a matter of distress and frustration.
54. Turning again to our Guidance on Remedies, it says:

“Many, perhaps most, complainants that come to us describe the distress they have experienced because of their complaint ‘Distress’ can include … undue significant stress, inconvenience and frustration … A remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1,000 may be justified. Exceptionally, we may recommend more than this.”

55. In this case, I consider the distress Mrs C has suffered justifies an exceptional remedy of £2000. This is because of the length of time and frequency it occurred, and the fact she was required to supervise not just one, but two children as a result. I make a recommendation to this effect.
56. I find fault causing injustice in this element of Mrs C’s complaint.

Lack of educational psychologist involvement

57. Also since the beginning of 2019, H’s EHC plan has set out that they should receive input from an EP “at least termly”. The purpose of this input was and is to develop and monitor an appropriate curriculum for them. However, the Council did not implement this at the time, and so H has not benefitted from EP involvement for a long period of time. Mrs C considers H should receive a financial remedy from the Council to reflect the impact this has had on them.
58. The Council has accepted it was at fault for not commissioning EP input for H since January 2019. I understand it has now rectified this by commissioning the support, but in its final complaint response it said had not “[found] that the provision specified in Section F of the EHCP was compromised, or that a financial remedy would replace the EP involvement.”
59. It is not clear how the Council has concluded the lack of EP input had no impact on H’s provision.
60. I asked the Council to explain what it meant by ‘termly’ involvement. It replied:

“The EP involvement is specified in terms of work to be undertaken rather than for a specific length of time … [The] timing of the termly involvement is not prioritised over the purpose of the involvement.”

61. In complaints about missed educational provision, we normally seek to quantify any injustice to the relevant child or young person based on the amount of educational time they have lost. Again though, given the nature and purpose of the EP involvement, it is not possible to carry out a simple time-based calculation in this case.
62. Despite this, I remain satisfied the missed EP involvement is an injustice to H. Given its inclusion in their EHC plan, it is clearly an important element of their educational support. While I cannot say precisely what difference has been made by the fact it did not happen, uncertainty can be an injustice in its own right.
63. Similarly, I accept the Council’s point, that the missed EP involvement cannot now be replaced. But this does not mean there is no scope for H to receive a remedy for it.
64. On balance, I consider it appropriate for the Council to offer H a remedy of £450 to reflect the injustice to them of this fault. This is £150 for each of the approximately three terms of EP involvement they missed between October 2021 and October 2022 (I again reiterate I cannot consider the period before October 2021 here). As H is still under 16, I consider this payment should be made to Mrs C, for her to decide how best to use it for H’s benefit. I again make a recommendation to this effect.
65. I find fault causing injustice in this element of Mrs C’s complaint.

Complaint handling

66. Although not part of Mrs C’s complaint to the Ombudsman, I consider it also appropriate to address some points of concern about the Council’s complaint handling here.
67. First, in its final response to Mrs C, the Council said (concerning her complaint about the lack of 1:1 support):

“It is also noted that reference to 3.5 years of missing education was not mentioned in the previous complaints submitted, and the records do not contain any reference to this having been raised as a complaint over the period since 2019.”

68. This comment is confusing. Mrs C’s complaint was not about “missing education”, but about missing 1:1 support. She had explained this clearly when she wrote her complaint to the Council, and in fact the Council directly quoted this in its response. It is also fault for the Council to say that Mrs C had not complained about this before, as the Council had responded to her initial complaint about the same thing approximately five months earlier.
69. I should note Mrs C also says she had complained about the missing 1:1 support in 2021, although I have not seen this complaint and so cannot comment on this. Either way, the Council’s comment was clearly inaccurate.
70. Second, and more significantly, the Council has several times written that it cannot address a claim for ‘compensation’ through its complaints process. It said in response to both elements of Mrs C’s complaint I have investigated, and also in its letter to me in response to my enquiries.
71. ‘Compensation’ is, strictly speaking, something which is awarded by a court; and so in the narrow sense it is true a compensation claim cannot be addressed through a council’s complaints process. However, it is entirely normal for a financial remedy to be offered by councils in response to an upheld complaint, either independently or upon recommendation by us. I note that, since 2019, we have twice issued reports about the Council on similar cases, both of which led to the Council agreeing to offer significant financial remedies to the complainants.
72. And, indeed, the Council has offered Mrs C a financial remedy here, albeit in relation to the other elements of her complaint which I have not investigated. Again, therefore, it is difficult to understand why the Council has taken such a different stance with respect to these two issues.
73. I consider these points again amount to fault by the Council here, and I accordingly make this finding. I consider this fault caused a further injustice to Mrs C, because it meant she had to refer her complaint to the Ombudsman for resolution, causing her additional time and trouble. To remedy this, I consider the Council should pay Mrs C a further £200.
74. I also consider the Council should take steps to remind its complaints staff of this, and I make a further recommendation to this effect.

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Conclusions

75. It appears clear the Council did not give proper thought to how it would implement and pay for the children’s 1:1 support when it originally drafted their EHC plans. Consequently, this support was not provided by the Council, and there were no funds for Mrs C to arrange it herself.
76. Thanks to Mrs C stepping into the role herself, the children did not miss out on the 1:1 support. But Mrs C should not have had to do this. The Council should offer Mrs C £2000 to reflect the distress its fault caused her.
77. The Council was also at fault because it entirely failed to commission the EP involvement for H until September 2022, despite this having been a longstanding requirement of their EHC plan.
78. I recognise it is not possible to quantify the impact on them this fault has had, nor now to replace the missed involvement. But the uncertainty this creates is an injustice to H in its own right, and the Council should offer them £450 to recognise this, covering the roughly three terms of missed EP involvement between October 2021 and September 2022. The Council should make this payment to Mrs C, for her to decide how best to spend it for H’s benefit.
79. And finally, the Council was also at fault because of its poor complaint handling, in particular its insistence it could not process Mrs C’s request for ‘compensation’ as part of the complaints process. Because this caused Mrs C undue time and trouble, the Council should pay her a further £200 to reflect this.
80. The Council should also ensure its relevant staff understand they can, and should, offer financial remedies in response to upheld complaints, where appropriate. It may be beneficial for the Council to draw those staff members’ attention to our published Guidance on Remedies as part of this.

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Agreed action

81. Within one month of the date of my final decision, the Council has agreed to:

• write a formal letter of apology to Mrs C for the faults and injustice I have identified here;
• pay Mrs C £2000 to reflect the distress she suffered because of the lack of 1:1 support for the children, and the fact she then had to provide this support herself instead;
• pay Mrs C £450 to be used for H’s benefit, to reflect the impact on them of the missed EP provision between October 2021 and September 2022;
• pay Mrs C £200 to reflect the time and trouble she was put to because of the fault in its complaint handling; and
• circulate guidance to its complaints staff to remind them they should, where appropriate, offer financial remedies to complainants in response to upheld complaints.

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Final decision

82. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman