Summary: The complainant (Mrs X) complained about the Council’s failing to consider her Personal Budget request, to deliver full-time education and special educational provision to Y and to comply with the Special Educational Needs and Disabilities (SEND) Tribunal decision. Mrs X said the Council failed to include her son’s (Y) views and to list all professional reports in Y’s Education Health and Care (EHC) plan issued in September 2022. We found fault in some areas of Mrs X’s complaint, including delivery of education and special educational provision, the Personal Budget process, communication and complaint handling. The Council agreed to apologise, make payments, consider Mrs X’s Personal Budget request and prepare a plan of action for Y’s educational support. The Council also agreed to provide us with the evidence of making service improvements in line with its Accelerated Progress Plan.

The complaint

1. Mrs X complains about the Council’s failings to:
1. Comply with the legislation and statutory guidance when issuing Y’s EHC plan in September 2022 because of:
1. Errors in Y’s EHC plan (non-appealable parts) – including his diagnosis not listed correctly;
2. Failure to put Y in the centre of his EHC plan – not including his views in the EHC plan;
3. Failure to list all reports in section K of Y’s EHC plan and referrals to an outdated paediatrician report from 2017 when a later one was available;
4. Failure to include all professional advice when drafting Y’s EHC plan;
2. Consider Mrs X’s Personal Budget (PB) request;
3. Deliver special educational provision (SEP) to Y;
4. Provide Y with full-time education and follow professional advice when providing education to Y by insisting on face-to-face tuition and that Y should be educated at school;
5. Comply with the SEND Tribunal decision of April 2023. Mrs X says the Council failed to:
1. Issue Y’s amended EHC plan within five weeks from the Tribunal decision;
2. Carry out Occupational Therapy (OT) and Speech and Language Therapy (SLT) assessments;
3. Add document references;
4. Amend social care parts of the plan following a social care assessment;
5. Provide accurate information (the Council wrongly stated Y’s views had been added back to section A)
6. Provide timely communication and act without delays. Mrs X is not happy about the way the Council shared information with her;
7. Properly handle Mrs X’s complaint;
2. Mrs X says the Council’s failings to provide Y with suitable education and deliver his SEP amount to disability discrimination.
3. Mrs X claims the Council’s failings has had increasing negative impact on the family. She says they affected Y’s health and led to the increase in Y’s self-harming.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
9. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
10. We can consider non-appealable sections of an EHC plan. We do this by checking whether when deciding what to include the Council followed the correct process and took account of all relevant information. If we find fault, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
11. We do not start or may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
12. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
13. 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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What I have and have not investigated

14. I have not investigated any communication between the Council and Mrs X and delivery of Y’s SEP in the period before September 2022. This was investigated as part of Mrs X’s previous complaint 22002957.
15. I could not investigate whether the Council missed some of Y’s special educational needs (SEN) from section B and insisted on educating Y at school. Mrs X appealed and had an opportunity to raise before the SEND Tribunal any issues with sections B and I of Y’s EHC plan.
16. I could not investigate Mrs X’s complaint about communication with the Council’s Tribunal team and about the Council’s staff conduct during the appeal. The way the Council conducts itself within the Tribunal is a matter for the Tribunal, which has powers to make case management directions, to deal with non-compliance and can make costs orders.
17. I have not investigated delivery of education and SEP to Y after Mrs X’s right to appeal was engaged at the end of September 2022. Mrs X asked the SEND Tribunal to specify how many hours of tutoring per week Y needed and to add SEP which would form an Education Otherwise than at School (EOTAS) package. Due to the extent of Mrs X’s appeal I consider the delivery of education and SEP in this period was too closely linked to the disputed issues for us to be able to investigate.
18. I have decided not to investigate how the Council handled Mrs X’s subject access request (SAR) as the Information Commissioner’s Office (ICO) is better placed to consider complaints about the SAR process.

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How I considered this complaint

19. I considered the information Mrs X provided.
20. I made enquiries with the Council and considered the information it provided.
21. I reviewed the Council’s ‘Personal budgets policy for special educational needs and disabilities’, the Council’s ‘Comments, complaint and compliment policy’ and referred to our Focus Report ‘Out of school, out of mind?’ of September 2011, amended in January 2016 and an updated version ‘Out of school, out of sight?’ issued in July 2022.
22. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative framework

EHC plans

23. 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.
24. The content of each section of an EHC plan is specified in the SEND Regulations 2014:
• Section A must include views, interests and aspirations of the child and their parents;
• Section K must include a list of the advice gathered during the EHC needs assessment. (The Special Educational Needs and Disability Regulations 2014 regulation 12)
25. Local authorities must consult the child and the child’s parent or the young person throughout the process of assessment and productions of an EHC plan. They should also involve the child as far as possible in this process. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.21)
26. In seeking advice and information the local authority should consider with professionals what advice is necessary to ensure the assessment covers all the relevant education, health and care needs of the child. The local authority must seek advice from any person requested by the child’s parents where the local authority considers it reasonable to do so. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.49)

Compliance with the SEND Tribunal order

27. Where the Tribunal orders a council to amend an EHC Plan, the council shall amend the EHC Plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 
28. When the SEND Tribunal makes a recommendation for social care needs or provision, a council must respond to the child’s parents within five weeks from the date of the recommendation. The council’s response must:
• Be in writing;
• State what steps, if any, the council has decided to take after considering the recommendation;
• Give reasons for any decision not to follow the recommendation or part of it.

(The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 regulation 7)

Suitable education

29. Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms Article 2 protects the right to an effective education. (Human Rights Act 1998 schedule 1 part II article 2).
30. It is responsibility of the parents of compulsory school age children to cause them to receive efficient and suitable full-time education. Efficient full-time education means the education which is suitable:

• to the child’s age, ability and aptitude, and
• to any special educational needs they may have. (Education Act 1996 Section 7)

Delivery of SEP

31. The council has a duty to secure special educational provision specified in an EHC plan for the child or young person. (Children and Families Act S.42)
32. 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)
33. A council may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school. (Children and Families Act 2014 section 61(1))

Personal Budget

34. A council must consider a request for a direct payment if a child’s parent made it at any time during the period in which the draft EHCP is being prepared or reviewed. (Special Educational Needs (Personal Budgets) Regulations 2014 regulation 4)
35. Where a council refuses to make direct payment it must:
• Inform the child’s parents in writing of its decision, providing the reasons and informing of the right to request a review;
• Carry out a review of its decision, if requested to do so, considering any representations made by the child’s parent;
• Inform the child’s parent in writing of the outcome of the review, giving reasons.

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 7)

36. Councils must consider each request for a personal budget on its individual merits. It can refuse a personal budget if the sum is part of a larger amount and disaggregation of the funds for the personal budget would have an adverse impact on services provided or arranged by the council for other EHC plan holders, or it would not be an efficient use of the council’s resources.

Communication

37. Local authorities should support and encourage the involvement of children, young people and parents or carers by:

• Providing them with access to the relevant information in accessible formats
• Giving them time to prepare for discussions and meetings, and
• Dedicating time in discussions and meetings to hear their views.

(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24)

38. Councils must have regard to the need to support a child with special educational needs or disabilities and their parent to facilitate the development of the child and to help them achieve the best possible educational and other outcomes. (Children and Families Act 2014 section 19 (d))

Complaint handling

39. The Council’s Comments complaints and compliments policy states the Council will normally provide a full response to a complaint within 20 working days. Where this is not possible the complainant will be informed at the earliest opportunity when they can expect to receive a full reply.
40. If the complainant remains dissatisfied, they can write to the Corporate Director of the service involved. The timescale for stage two response is 20 working days. For more complex cases this timescale can be extended to a maximum of 65 working days.

Equality Act 2010

41. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010
• Advance equality of opportunity between people who share a protected characteristic and those who do not
• Foster good relations between people who share a protected characteristic and those who do not
42. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

What happened

Background

43. Y is 12. He is autistic and has a Global Developmental Delay diagnosis, Sensory Processing Disorder and anxieties.
44. In the summer term of 2021 Y stopped attending his school as it could not meet his needs. The Council arranged individual tutoring for Y, which continued throughout Year 7. From September 2021 the Council allocated ten hours of tutoring per week for Y.
45. The Council started to re-assess Y’s needs in the autumn of 2021.
46. In June 2022 Mrs X complained to us about:
• Errors in the Council’s handling of Y’s EHC plan between October 2020 and September 2022;
• Delays in issuing two EHC plans between October 2020 and September 2022;
• The Council’s failure to consider Mrs X’s request for OT advice;
• Poor communication.
47. In January 2023 we issued a decision 22002957, in which we upheld all areas of Mrs X’s complaint. Among the remedies agreed by the Council was a financial payment in recognition of Y’s lost SEP between December 2021 and September 2022.

EHC plan

48. In March 2022 Y’s SEND Case Officer (Case Officer 1) asked Mrs X to provide her and Y’s views as part of Y’s EHC needs re-assessment process. Mrs X filled in the form and sent the requested information to the Council.
49. After receiving a draft EHC plan, in mid-May Mrs X told the Council it had failed to include Y’s views in the plan.
50. In the second part of September the Council issued Y’s final EHC plan.
51. At the end of September Mrs X tried to contact Case Officer 1. She received an automated message that Case Officer 1 had left and the Council would assign a new case officer for Y.

Appeal to the SEND Tribunal

52. At the beginning of November 2022 Mrs X appealed Sections B and F of Y’s EHC plan. She also asked for the Tribunal recommendations for the health and social care sections of Y’s EHC plan.
53. At the beginning of January 2023 the Council’s Tribunal team asked Mrs X to fill in a form with her and Y’s views which would be used to amend section A.
54. The SEND Tribunal issued its decision at the beginning of April 2023. The Tribunal ordered the Council to:
• Amend section B;
• Amend section F, including:
1. Specifying the number of the online tuition sessions to eight per week;
2. Providing Y with a laptop with a camera;
3. An assessment and review of Y’s EOTAS package by a specialist teacher once a term;
4. Access to therapies and support provided by a therapist or specialist in ASD and demand avoidance;
5. Individual counseling or mentoring;
6. Intervention to support engagement with areas of interest;
7. Physical education sessions;
8. Provision to address Y’s sensory processing difficulties following an OT assessment;
• Carry out an OT assessment for Y as soon as it could be arranged;
• Carry out an SLT assessment for Y as soon as it could be arranged
55. The SEND Tribunal recommended the Council:
• Amend Health sections of Y’s EHC plan;
• Carry out a social care assessment for Y;

The Council’s actions following Tribunal decision

56. At the end of April an Integrated Care Board for the Council’s area (the ICB) accepted all Tribunal recommendations for the health sections of Y’s EHC plan. When sending their response to the Tribunal recommendations the ICB told the Council it would not carry out SLT and OT assessments for Y. The ICB clarified it was the Council’s responsibility to arrange these assessments as they were to clarify Y’s special educational needs and what was needed to address them.
57. The Council carried out Y’s initial social care assessment at the end of May.
58. In mid-June the Council issued Y’s final post-Tribunal EHC plan. Mrs X was not happy about the lack of details of a social care assessment, lack of a PB, not adding Y’s views to section A and a wrong diagnosis in section A which was inconsistent with other parts of the document.
59. Section A of the final post-Tribunal EHC plan included Y’s and his parents’ views expressed in the form completed in March 2022, his parents’ views on a suitable placement for him as stated in August 2021 and Y’s and his parents’ views provided during the appeal in February 2023.
60. Responding to my enquiries the Council stated it had failed to send a formal response to the SEND Tribunal recommendations. The Council said it had not amended the social care sections of Y’s EHC plan following the assessment completed in July 2023 as it had found Y had no eligible social care needs.
61. At the beginning of October the Council told us it made no arrangements for Y’s OT and SLT assessments as it had asked the National Health Service (NHS) to carry out these assessments but the NHS had refused. The Council said it would now be commissioning them from private providers.
62. Throughout the school year 2022/2023 Y received online tutoring from the agency commissioned by the Council (the Tutoring Agency). Y could not see his tutor as he had no camera. At the end of July 2023 the Tutoring Agency told Y’s parents Y’s tutor would not be able to continue her sessions with Y in September 2023.
63. The Tutoring Agency has been in contact with Mrs X and her husband (Mr X) since the beginning of September 2023. No tutoring sessions were delivered to Y as the Council failed to provide him with a laptop. Y received no other provision.
64. Throughout September and October Mrs and Mr X as well as Y’s new tutor contacted the Council many times asking it to put in place special educational provision listed in Y’s post-Tribunal final EHC plan and in particular to provide him with a laptop to access his online tutoring.

Personal Budget

65. At the beginning of May 2022 the Council sent Mrs X a blank PB form.
66. Two weeks later Mrs X provided the Council with the details of her request. She named and costed the provision which she wanted the Council to include in Y’s PB.
67. Case Officer 1 recognised the receipt of this form and said she would pass it to the right team. At the beginning of September Case Officer 1 confirmed she was chasing a PB for Y.
68. In response to Mr X’s correspondence the Council said it had contracted an organisation to manage PBs (the PB Team), which would process Mrs X’s request.
69. Throughout September and October 2023 Mr X continued contacting the Council and the PB Team. The PB Team said they had not received any documents about Y’s PB.
70. In its response to my enquiries the Council said it had failed to respond to Mrs X’s PB request. The Council also stated it had no records of any letters sent to Mrs X about her PB request.

Complaint

71. In the third week of October 2022 Mrs X complained about:
• Continuing errors with Y’s EHC plan;
• Lack of full-time education for Y;
• Lack of communication;
• Delays with the Council’s processes;
• The way the Council handled her PB request;
• No social care needs identified in Y’s EHC plan;
• Possibly disability discrimination.
72. In mid-December Mrs X asked for an update on her complaint but received no response.
73. After Mrs X contacted us at the beginning of February 2023, the Council responded to her complaint two weeks later. It included a letter of apology to Y. The Council said it had considered Mrs X’s PB request and would tell her once the final decision was made. The Council suggested a PB would be only for helping Y to access the community rather than for any therapies for him.
74. Mrs and Mr X asked for their complaint to be considered at stage two. They were not happy with the Council’s apology letter to Y as they considered it would upset him. Two weeks later Mrs and Mr X sent another complaint to the Council.
75. At the end of July the Council apologised to Mrs X for the delay in responding to her complaint at stage two.

Analysis

EHC plans

76. On the evidence I have seen I did not find fault in the way the Council drafted sections A and K of Y’s EHC plan.
1. Section A – the Council asked for Y’s and his parents’ views in March 2022 and used them when issuing Y’s EHC plan in September 2022. During the appeal in February 2023 the Council again asked for any views, wishes and feelings which might have changed and expanded them when issuing a post-Tribunal final EHC plan in June 2023. I understand that Mrs X was concerned about the Council stating Y was diagnosed with Global Developmental Delay in the past. In other parts of the document however, namely sections B and C, this condition is also included so I do not consider the section A wording could create any confusion and certainly would not amount to maladministration.
2. Section K – Mrs X complained about the most recent medical report missed by the Council when drafting section K of Y’s EHC plan in September 2022. There is no evidence the Council deliberately missed this document from the list. In any case it is omitting the content of the report which might have caused injustice to Y rather than not including this document in section K. The SEND Tribunal issued recommendations for sections C and G, therefore we could not investigate the issues about the content of the health sections of Y’s EHC plan.
77. I did not investigate whether when preparing Y’s EHC plan the Council used all available professional reports. There is no specific duty on the Council to use all professional reports when issuing an EHC plan for a child. If, however, there had been some needs or provision included in any reports which were missed from Y’s EHC plan, Mrs X would have had the right to bring these issues before the SEND Tribunal as part of her appeal.

Compliance with the SEND Tribunal order

78. After the SEND Tribunal issued its decision at the beginning of April 2023 the Council:
1. Delayed issuing Y’s final post-Tribunal EHC plan by five weeks;
2. Failed to respond to the Tribunal recommendations on Y’s social care needs and provision.
3. Failed to carry out SLT and OT assessments as soon as they could be arranged.
79. All these failings amount to fault, however I consider the failings listed in paragraph 77 a) and b) had either limited or no impact on Y for the following reasons:
1. The delay in issuing a post-Tribunal final EHC plan was not excessive, therefore the impact on Y would have been limited;
2. Despite the lack of response to the Tribunal social care recommendations the Council complied with these recommendations and carried out a social care assessment for Y. There was no negative impact of this failing on Y or his parents.
80. Although the SEND Tribunal did not set specific timescales for completing OT and SLT assessments, the phrase used “as soon as can be arranged” implied the urgency. In its response to our enquiries the Council said it had been informed by the NHS that these assessments should be carried out by the SEND team of the Council as they related to Y’s special educational needs. This communication took place at the beginning of May 2023. We have not been provided with any evidence that until the early October the Council took any action to arrange these assessments. It has now told us it would commission them from independent therapists.
81. The delay in making arrangements for these assessments is fault. It caused injustice to Y and his parents by creating uncertainty about the right support for Y’s speech and communication and physical and sensory needs. Due to the extent of Y’s difficulties in accessing education it was particularly important to find out what can be done to address Y’s difficulties within these areas and the lack of urgency in the Council’s approach must have been distressing for Mrs and Mr X.
82. I cannot criticise the Council for not identifying any social care needs or provision in Y’s EHC plan following his social care needs assessment. If Mrs X is not happy about the outcomes of the social care needs assessment, she can complain to the Council.

Delivery of education

83. The evidence suggests that until the end of July 2023 Y was receiving eight hours a week of online tutoring as showed in his post-Tribunal EHC plan. Y had no camera so could only hear his tutor’s voice.
84. From the beginning of September Y received no education as the Council failed to provide him with a laptop which was included in section F of his post-Tribunal EHC plan. The Tutoring Agency, commissioned to deliver eight hours of tutoring per week, could not provide Y with education as he had no suitable equipment. This is fault. It caused injustice to:
• Y – he experienced uncertainty about educational arrangements for his new school year and missed over two months of education;
• Mrs and Mr X – they were increasingly distressed during summer holidays by the lack of any plans for the beginning of a new term. They spent much time contacting the Council and the Tutoring Agency trying to find out what would happen in the new school year to prepare Y for new arrangements.

Delivery of SEP

85. Since the early 2022 Mrs X has been asking for extra provision for Y in addition to the online tutoring commissioned by the Council for him. In May 2022 she asked for a PB for Y.
86. In our previous investigation 22002957 we have offered some remedies for the lack of SEP until the end of July 2022. As explained in paragraph 17 of this decision I have not investigated whether the Council delivered any SEP from issuing Y’s final EHC plan in September 2022 until the beginning of April 2023 when the SEND Tribunal issued its decision.
87. From mid-June 2023 the Council should have been providing Y with support which included SEP listed in paragraph 54 of this decision. I have not been provided with any evidence the Council tried to put any interventions in place to support Y’s social, emotional and mental health as well as physical needs. The Council’s delay in providing Y with a laptop meant he could not access education. This is fault which caused injustice to Y and his parents:
• Y – Mrs X reported his anxiety and mental health had declined, there were negative effects on his academic and personal development.
• Mrs X – the Council’s failings caused significant frustration and affected Mrs and Mr X’s well-being as they were increasingly concerned about Y at the difficult time of his development. The lack of routine and structure seemed to have affected Y’s behaviour towards his parents.

Personal Budget

88. The Council told me it had failed to consider Mrs X’s PB request which she had asked for in May 2022. I have investigated the Council’s actions from the end of the SEND appeal.
89. Although the Council has commissioned an external agency to handle PB requests on its behalf, it continues to hold the responsibility for this process.
90. The lack of the Council’s response to Mrs X’s PB request is fault. It caused injustice to Y and Mrs X, which was more significant as the Council failed to deliver provision listed in the post-Tribunal EHC plan. I cannot predetermine the result of the Council’s consideration of Mrs X’s PB request. The Council’s fault, however, caused uncertainty of what Y’s parents could have arranged themselves to support Y.

Communication

91. For the reasons explained in paragraphs 14 and 16 I have looked at the communication with Y’s parents from the end of the appeal process. Since mid-September 2022 Mrs X has not been told the details of Y’s new SEND case officer, after his previous had left. The Council has been changing the communication arrangements with Y’s parents which caused confusion and frustration. The Council failed to respond to many messages sent by Mrs and Mr X. The Tutoring Agency, who was contacting the Council about a laptop for Y, confirmed how difficult it was to reach the Council’s staff.
92. The Council’s failings to provide consistent and timely communication for Mrs and Mr X are fault. It caused injustice to Y’s parents as they spent significant amount of time trying to contact various members of the Council’s staff and asking for the delivery of services for Y.
93. As part of our investigation of Mrs X’s previous complaint 22002957 we also found fault in the way the Council communicated with Mrs X. The Council apologised for that but there is no evidence it has taken decisive actions to improve its services in this area.
94. In other recent investigations against the Council we have also found the Council’s failings in the way it communicated with parents of the children with EHC plans. In our decision issued in February 2023 for the complaint 22006212 we referred to the continuing communication problems and asked the Council to provide us with any further steps it intended to take to secure improvements in its services.
95. Following an Ofsted inspection of the Council’s SEND services in September 2022, which identified inadequate progress in all areas of weakness, the Department for Education issued a SEND Improvement Notice. In May 2023 the Council published an Accelerated Progress Plan, in which it said: “we are making sure staff are well-trained and communicate better with parents when they contact us”. In this document the Council set up specific improvements for its SEND services, some of which we have been monitoring as part of our casework.

Complaint handling

96. It took the Council over 14 weeks to respond to Mrs X’s complaint at stage one. Mrs X asked for her complaint to be escalated to stage two in mid-February 2023. In June the Council confirmed it was going to provide its stage two response to Mrs X by the end of June. In August we asked the Council to send us its stage two response, but we have not received it.
97. The Council’s delays in responding to Mrs X’s stage one complaint and its failure to respond at stage two are fault. They caused injustice to Mrs X as she did not have her concerns resolved and there was no closure to the issues raised. She was frustrated by the complaint process and what she saw as the lack of accountability for the Council’s SEND services.

Equality Act 2010

98. The Council’s failings do not seem to relate to Y’s disability as a protected characteristic included in the Equality Act. Ofsted has identified systemic problems in the Council’s SEND services and there is no evidence the Council has been treating children differently depending on whether they have disabilities or not.

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Agreed action

99. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X and Y for the injustice caused to them by the faults identified following the principles of our Guidance on Remedies;
• pay Mrs X £2,000 to recognise the negative impact of the loss of education and special educational provision from mid-June 2023;
• continue paying Mrs X £100 per week for the lack of online tutoring and £100 per week for the lack of special educational provision listed in paragraph 54 of this decision. The payments will start from the date of the final decision and will include weeks in term time. The Council will make payments on the last day of each month for each full week when the online tutoring and special educational provision were not in place. This will continue until the Council start online tutoring and delivery of special educational provision.
• arrange a meeting for Y’s parents with Y’s SEND case officer, Y’s tutors and a team manager to identify any outstanding issues and to prepare a plan of action with the timescales. The Council will send us a copy of this meeting minutes and a copy of the plan of action;
• pay Mrs X £800 to recognise the distress caused to Y and Mrs X by the Council’s failing to make arrangements for SLT and OT assessments for Y, to consider Mrs X’s PB request and to communicate with her effectively.
• Pay Mrs X £300 for the time and trouble spent when complaining.

The Council will provide the evidence that this has happened.

100. To remedy the injustice caused to Y and Mrs X by the Council’s failings in its handling of Mrs X’s PB request, within four weeks from the date of sending by Mrs X her updated PB request the Council will provide her with its decision on Y’s PB. If any parts of Mrs X’s request are refused the Council should provide its reasons for that in writing and tell Mrs X of her right to ask for a review.

The Council will provide the evidence that this has happened.

101. We also recommend the Council within three months of the final decision:
• Provide us with the details of any steps undertaken to ensure better communication with parents as stipulated in the Council’s Accelerated Progress Plan;
• Review the way it handles Personal Budget requests to ensure that:
1. when requesting Personal Budget parents/young people are provided with the advice on:
1. Provision for which a Personal Budget may be available;
2. Details of the organisations that provide advice and assistance on Personal Budgets;
3. Conditions which must be met before direct payments may be made;
4. Right to ask for a review of the decision refusing direct payments.
2. Personal Budget requests are considered within reasonable timescales.

The Council will provide the evidence that this has happened.

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Final decision

102. I uphold parts of Mrs X’s complaint. For the reasons explained in the Analysis section I found fault in the Council’s actions following the SEND Tribunal decision, in the Council’s failure to provide education and special educational provision for Y and its failure to respond to Mrs X’s Personal Budget request. I also found fault in the way the Council communicated with Mrs X and handled her complaint. Many of these failings caused injustice to Y and Mrs X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman