Summary: Miss X complained about the Council’s failure to support her son’s (Y) education and special educational needs. We have found the Council to be at fault. There was significant delay in issuing an Education, Health and Care Plan, some poor communication and complaint handling. It also failed to provide equipment and software specified in the Plan. To remedy the injustice caused by these faults, the Council agreed to apologise, make payments to Miss X, increase the personal budget and take action to improve its service. We were unable to investigate parts of Miss X’s complaint because they related to matters that were appealable to a Tribunal.

The complaint

1. Miss X complains about the Council’s failure to provide her son, Y, with support for his special educational needs (SEN). In particular, she complains about the following matters.
1. Delay in producing Y’s final Education, Health and Care Plan (EHCP) following his Annual Review in January 2021.
2. Failure to issue a draft EHCP before a final version was issued.
3. Failure to take account of information provided by health professionals about Y’s health and SEN. This led to final EHCPs that failed to recognise and meet his needs.
4. Failure to advise Miss X of her right to appeal to the Special Educational Needs and Disability Tribunal (the Tribunal) in October 2022, so preventing her from appealing the content of the EHCP.
5. Failure to adequately fund his education, including preparation time for the home tutor, assistive technology and IT equipment.
6. Failure to identify a suitable school place because the focus was incorrectly placed on his diagnosis of autism.
7. Poor communication.
8. Poor complaint handling.
2. Miss X says this has caused significant distress and frustration to the whole family. She has been unable to work because she has had to support Y’s home schooling. She has also had to privately fund some of Y’s support that has had a significant impact on the family finances and her well-being. Y has been denied the specialist support he was entitled to receive that has had a detrimental impact on his development as he transitions to adulthood.

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What I have and have not investigated

3. I will not investigate parts of Miss X’s complaint, specifically 1(c) and 1(f) above.
4. Certain decisions related to SEN have a right of appeal to the Tribunal.
5. Miss X’s appeal rights to the Tribunal were triggered on the date the Council issued the final EHCP in May 2022.
6. Miss X says she did not appeal because she says the Council promised it would make the amendments to the EHCP she wanted following the next annual review in July 2022. I consider this was a reasonable position for Miss X to have taken because an appeal can take many months to be heard, takes effort to prepare and can be mentally exhausting. However, this fact Miss X was dissuaded from appealing still does not allow me to investigate whether the Council was at fault for not including recommendations made by other professionals. Only the Tribunal can adjudicate on the content of the EHCP.
7. I am aware that Miss X says an appeal would not have been necessary had the Council included all relevant information in the final EHCP issued in May 2022. Part of her complaint (1(c) above) to the Ombudsman is about this, as well as the Council’s failure to properly listen to her concerns and the professional advice of others.
8. These alleged faults are intrinsically linked to the content of the ECHP. This places this part of Miss X’s complaint outside the Ombudsman’s jurisdiction. This is the case even though the Tribunal may not have considered the specific matters Ms X has raised. We cannot intervene.
9. Nor will I investigate 1(f) above. EOTAS has been specified in Y’s EHCP since 2017 and from the evidence I have seen, has not been challenged by Miss X since that time. Miss X had several opportunities to appeal the type of educational placement to the Tribunal but did not do so. The Tribunal, not the Ombudsman has jurisdiction over this issue. This is the case regardless of whether the Council, as Miss X alleges, incorrectly focused on a particular diagnosis.

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The Ombudsman’s role and powers

10. 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)
11. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. Where someone has appealed we cannot investigate the matter under appeal. (Local Government Act 1974, section 26(6)(a), as amended)
12. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as “the Tribunal” in this decision statement.
13. 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.
14. If we are satisfied with an organisation’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

15. I spoke to Miss X and considered the information she provided.
16. I made enquiries of the Council and considered its response and case records.
17. I reviewed the relevant law and guidance.
18. Miss X and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Relevant law and policy

Education, Health and Care Plans

19. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
20. 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.

Annual reviews

21. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils. The guidance says councils should arrange for EHCPs to be reviewed at least every 12 months.
22. When changes are suggested to the draft EHCP and agreed by a council, it should amend the draft plan and issue the final EHCP as quickly as possible, and within eight weeks of the date the council must send the proposed amendments to the parents.
23. Where a council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHCP.
24. In any case the council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Education other than at school (EOTAS)

25. Education other than at school (EOTAS) is provision that may be suitable for a child for who education in a school setting is not appropriate. It means the child has education provision delivered somewhere other than a school. If this is named provision in an EHCP the Council remains responsible for arranging and paying for the provision and for ensuring the special needs provision is made.

Personal budgets

26. A personal budget is an amount of money identified by a council to deliver provision set out in an EHCP where the parent is involved in securing that provision.

What happened

27. I have set out below a summary of the key events. But it is not meant to show everything that happened.

Context

28. Y, a teenager, has SEN and an EHCP. Because of difficulties finding a suitable school, the Council agreed to support him to be educated other than at school. ETOAS was named at Section I of his EHCP in 2017. Since this time Mrs X has received a received a personal budget to pay for services specified in Y’s EHCP. The personal budget had not included funding for IT equipment and specialist software. This is part of Miss X’s complaint.
29. Y was diagnosed with epilepsy in August 2020.

The 2021 annual review

30. An annual review was held in January 2021. A draft EHCP was issued in February 2021. Mrs X raised concerns because she felt the draft plan did not reflect Y’s needs and additional diagnosis. This view was supported by Y’s psychiatrist who arranged a meeting with the Council and others to discuss her concerns about the current arrangements. In response to this, the Council agreed to commission relevant assessments.
31. Between February and September 2021, Y attended several assessments including occupational therapy, physiotherapy, speech and language therapy and neurology. Y was also diagnosed with an acquired brain injury.
32. Miss X asked the Council several times for specialist therapy to be included in his EHCP to reflect his recent diagnoses.
33. The Council received the assessment reports in October 2021. Y’s caseworker was on long term sick leave and his case was not picked up by another member of staff in their absence. The Council has accepted this should not have happened.
34. Mrs X complained to the Council in February 2022 about the lack of progress.
35. A final EHCP was issued in May 2022. Miss X says she did not receive a draft beforehand and so was not able to comment. She was disappointed to see it did not include the therapy that had been recommended by the assessments. It also failed to include information about the personal budget that would fund the EOTAS.
36. The Council replied to her complaint in June 2022. It said an annual review would be held urgently to resolve the outstanding issues. For this reason, Miss X says she did not appeal the content of the unsatisfactory EHCP to the Tribunal.
37. An annual review was held in July 2022. This should have taken place in January 2022. Miss X says she was promised therapy would be included in a revised draft and an amended draft would be issued.
38. A final EHCP was issued in October 2022. Miss X says this was sent by email without a cover letter explaining her right of appeal. As before, it did not include the personal budget.
39. In December 2022, Miss X felt she had no choice but to appeal to the Tribunal. However, by the time the Tribunal started to process, the Council issued another final Plan. This prevented her from appealing the EHCP that was issued in October 2022.
40. In January 2023, Miss X complained again. In response the Council apologised again for delay and lack of communication and support. It said it was looking into ways to improve its service.
41. Disappointed by what she considered to be an inadequate response, Miss X brought her complaint to the Ombudsman.
42. In response to my enquiries the Council has accepted:

• there was a delay in issuing the draft plan in late 2021 due to a staff absence;
• there was a delay in issuing the amended Final EHCP;
• it did not issue a cover letter in October 2022 explaining Miss X’s appeal rights to the Tribunal;
• the annual review did not take place in January 2022 when it should have done; and
• there was delay in processing an increase in Y’s personal budget due to staff shortages.

43. The Council does not accept:

• it was obliged to fund a laptop and specialist software;
• it should increase the personal budget to include tutor preparation time; and
• there was poor communication (aside from when the case worker was on sick leave).

Analysis

44. I will consider Miss X’s specific areas of complaint below.

Delay in producing Y’s final EHCP following his annual review in January 2021

45. In its response to my enquires, the Council has accepted it took too long to issue Y’s EHCP. It has explained this was due to a shortage of therapists and SEN staff, The law expects a final Plan to be issued in 14 weeks from the date of the annual review. In this case it took 16 months. This delay is fault.
46. I am satisfied the long delay caused Miss X significant frustration, as well as her time and trouble trying to contact the Council about the outstanding EHCP. This injustice requires a remedy (below).
47. I cannot seek a remedy for failure to provide specialist support that Miss X says should have been included sooner after the January 2021 annual review. This is because I am only able to consider a loss of provision where it specified in a Plan, but not delivered. Because it was not included until February 2023, I am unable to either find fault or provide a remedy for this lost provision.

Failure to issue a draft EHCP before a final plan was issued

48. The case records show the Council issued several draft EHCPs following the annual review in January 2021. It appears a stalemate situation had arisen between the Council and Miss X about what should be included in the EHCP. Rather than issue another draft, the Council chose to issue a final EHCP instead. This is a decision the Council was entitled to make. This then allowed Miss X the chance to appeal to the Tribunal about the contentious issues. The Council also issued a draft before the final EHCP was issued in October 2022.
49. The Council was not at fault here.

Failure to advise Miss X of her right to appeal to the Tribunal in October 2022, so preventing her from appealing the content of the EHCP

50. In its response to my enquiries, the Council has accepted it did not provide information about Miss X’s right of appeal to the Tribunal when it issued the final EHCP in October 2022. This was fault.
51. However, I am satisfied Miss X was aware of the appeal process because the records show she was provided with information about this is May 2022, when the previous EHCP was issued. She considered appealing but did not do so because the Council said it would resolve the outstanding issues. It is reasonable for Miss X to have assumed she had a fresh right of appeal when the final Plan was issued in October 2022.
52. So, while the Council was at fault for not providing the standard cover letter with the final EHCP, because Miss X was aware of the process, I do not consider this fault led to a significant injustice to her that requires a remedy.

Failure to adequately fund EOTAS, including tutor preparation time, assistive technology and IT equipment

53. Insofar as is relevant to this issue, the 2019 EHCP (section F) states:

• “Y will require ICT to help him document work due to the challenges he has with writing. This could be in the form of a laptop/Ipad and/or dictaphone”

54. The May 2022 plan states:

• “Y will require ICT to help him document work due to the challenges he has with writing. This could be in the form of a laptop/Ipad and/or dictaphone”.
• “Y will need the use of technology (such as and Ipad or laptop) with software, to support the speeding up of writing….software recommended to explore is…”

55. The Council has said it was not obliged to provide a laptop or software because:

• its Elective Home Education Team have never provided laptops for any pupils. Parents who chose to home educate take responsibility for providing all resources themselves;
• Miss X did not request a budget for IT equipment in 2017; and
• the requirement for technology equipment to be provided is not stated within Section F.

56. I disagree with the Council’s position. Y is not electively home educated, rather he is EOTAS. This is specified in his EHCP. I also consider it is irrelevant what Miss X asked for in 2017 because she clearly requested help with this from 2021.
57. The law says councils must provide whatever is set out in Section F. This is still the case if EOTOS is the named provision, rather than a school.
58. Both the 2019 and 2022 EHCPs include a “requirement for IT”. This was directly related to Y achieving his outcomes. In my opinion, this leads me to conclude that provision of IT was included in Section F. As such, the Council was under a duty to fund suitable equipment.
59. Failure to do so was fault.
60. For the same reason, the Council was also at fault for failing to provide assistive technology. In my opinion, this was also included in Section F.
61. I must now consider what, if any, injustice arose from this fault.
62. I understand Miss X had no choice but to pay for a laptop herself, but she should not have had to do so. Her doing so, enabled Y to access some of his provision and so limited the injustice to him directly.
63. It is not possible for me to estimate what the Council should have spent on IT equipment since January 2021. For this reason, I have recommended a symbolic payment in acknowledgment of the Council’s fault (below). The Council should also review Y’s existing equipment to ensure it meets his learning requirements and adjust his personal budget accordingly.
64. From speaking to Miss X, I am satisfied Y may have been disadvantaged by not having access to assistive technology since it was included in his EHCP in May 2022. This uncertainty, as to whether his outcomes would have been improved had the faut not occurred, requires a remedy (below).
65. The Council should also ensure the personal budget is adjusted going forwards.
66. I do not find fault with the Council’s approach to home tutor payments.
67. Funding of additional tutor time to allow for him to prepare for lessons was not included in any EHCP. In response to my enquiries, the Council has explained the costs paid for tuition includes both teaching and preparation time. This is a not a matter the Ombudsman would interfere with. If Miss X wants the Council to consider increasing the number of hours, she should raise it at the next annual review. It is then open for her appeal to the Tribunal if not satisfied with the outcome. The Ombudsman has no jurisdiction over this matter because it relates to the content of an EHCP.

Poor communication and complaint handling

68. The Council has accepted there was period of poor communication with Miss X when the case worker was on sick leave. It says it has already apologised to Miss X.
69. I do not consider this to be an adequate remedy. It happened at a critical time in the process when the assessments had been submitted by the various health professionals. Miss X had already waited a long time for the case to progress since the annual review and this led to further delay. The Council should have had procedures in place to ensure cases are not allowed to lie dormant when staff are absent, and to keep Miss X informed. Failure to do so was fault. I am satisfied it caused frustration to Miss X that requires a remedy (below).
70. Other than this, I did not identify any other examples of poor communication that would amount to fault, although I do acknowledge some emails went unanswered on occasion. I consider much of the frustration felt by Miss X was due to the Council’s failure to include what she wanted in the Plan, as opposed to lack of communication. For this reason, I have not found any additional fault here.

Poor complaint handling

71. Miss X first complained to the Council in February 2022. She did not receive a response until June 2022. Under the Council’s complaints procedure, it should have responded within 20 days. This delay of several months is fault. I am satisfied the frustration experienced by Miss X requires an additional remedy to the apology already offered by the Council.

Personal budget

72. In response to my enquiries. The Council has accepted there was delay in finalising Y's personal budget. It had agreed an increase in 2022, but Miss X did not have access to the enhanced budget until February 2023. This delay was fault. It is unclear whether Miss X has received a back payment for the sum she was denied. If not, the Council should do so now (below).

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Agreed action

73. The Council has agreed to take the following action within four weeks from the date of my final decision.
1. Apologise in writing to Miss X.
2. Pay Miss X £1000 as a symbolic payment to acknowledge the distress and frustration caused by the several areas of fault I have identified.
3. Pay Miss X £1000 as a symbolic payment to acknowledge the uncertainty that arose from failing to provide assistive technology. This should be used for Y’s educational benefit.
4. Reimburse Miss X’s reasonable costs of the IT equipment she has purchased since January 2021 to fulfil the requirements of Section F of Y’s EHCP. If possible, Miss X should provide the Council with proof of any purchases.
5. Calculate what Y’s personal budget should have been (at the enhanced rate) had it been paid at the correct time. The Council should make a one-off payment for this amount.
6. Adjust Y’s personal budget to cover the costs of IT equipment and software specified in Y’s EHCP.
74. In its response to my enquiries, the Council has said it is “aiming to improve the overall experience of using our service”. To address the procedural faults identified the Council will tell us what specific action it will take to improve SEN services to parents and children.
75. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. I have found the Council to be at fault. The Council has agreed to remedy the injustice to Miss X and take action to improve its service. On this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman