• The complaint
• What I have and have not investigated
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed actions
• Final decision

The Ombudsman's final decision:

Summary: The complainant alleged that the Council delayed in issuing an amended Education, Health and Care (EHC) Plan, after his annual review of October 2020, delayed in providing treatment for his post-traumatic stress disorder (PTSD) required by his EHC Plan, and that the amount of the budget for his direct Occupational Therapy was insufficient. We find some fault by the Council causing an injustice. We recommended ways to remedy the injustice caused by the faults, which the Council has accepted. We are therefore closing the complaint.

The complaint

1. The complainant, a young adult with special educational needs, who I refer to as Mr X and who is supported by his representative (his mother), Mrs X. We postponed investigation pending the outcome of Mr X’s recent appeal (January 2023) to the Special Educational Needs and Disability (SEND) Tribunal.
2. Mr X complained:
   • 1. that the Council delayed in carrying out an Occupational Therapy (OT) assessment concerning the indirect OT required. In a previous complaint investigation (20 011 100), we found that this may amount to a service failure because the Council referred to other young people awaiting such assessments and stated external factors had caused such delays. The Council accepted that there had been this delay for Mr X. His personal injustice has been remedied in that the Council has now backdated the cost of the indirect OT and reimbursed the cost of the complainant’s commissioned OT report (our reference 21 016 796). However, this leaves a concern that there are such delays in OT assessments, which may affect other young people, and I consider this is a matter, which I should consider as part of this investigation;
     2. that there was a delay in finalizing Mr X’s Education, Health and Care (EHC) Plan after the annual review of October 2020. This has caused a subsequent delay in Mr X’s appeal rights to the Special Educational Needs and Disability (SEND) Tribunal and a delay in determining Mr X’s needs and provision. The recent SEND Tribunal increased the direct OT hours and confirmed that the PTSD treatment was required. The complainant says that the delay in finalising his EHC Plan also caused a delay in arranging a social care assessment and provision;

3. • 3. that the budget for the direct OT has been insufficient, the complainant says it has not changed since 2018. The Council provides a budget in the form of direct payments to Mr X for his gym membership, paid three times per year. The complainant says that this was an interim arrangement and has been insufficient to provide direct OT as required in his EHC Plan;
     4. that the Council has not provided the PTSD treatment since Mr X became an adult (mid-2020). We decided in a previous complaint investigation (20 011 100) that there was no fault because Mr X was at another educational establishment, and he did not want this to be provided at that stage. However, he subsequently changed his mind, and the complainant says he told the Council he wanted this treatment. But the Council has not provided this;
     5. the complainant is concerned about the lack of proper communication with him from the special educational needs (SEN) department. For example, when he emails or rings raising a question, he does not receive an answer. The Tribunal has said that he should have an advocate of his choice; and
     6. the complainant purchased a musical aid (cost £250.00) required for his course. He says that the Council had not told him whether it would reimburse him this cost.

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What I have and have not investigated

3. I have looked at events since October 2020.
4. I have not investigated any complaint about the delay in hearing the recent SEND Tribunal of January 2023 except for some issues about the budget which the Tribunal could not consider. I have also not looked at any complaint about the Council’s actions post the January 2023 Tribunal. This includes Mr X’s current concern that he is not receiving the required direct OT provision and Cognitive Behaviour Therapy (CBT) as set out in his EHC Plan.
5. Also, I have not investigated how the Council intends to fund the increased direct OT ordered by the Tribunal for this year (2022/2023). This is because Mr X’s solicitors are dealing with this matter.

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The Ombudsman’s role and powers

6. 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)
7. The Ombudsman can also consider complaints of a service failure. The Ombudsman’s view, based on caselaw (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407), is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved.
8. We may conclude that service failure has occurred, causing an injustice, in the absence of any specific fault in the council’s policy or procedure. This might be the case where there is an absence of key staff or the inability to recruit key staff or market forces prevent a statutory duty being delivered.
9. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault, and we may recommend a remedy for the injustice caused.
10. The Special Educational Needs and Disability (SEND) Tribunal deals with disputes about assessments and provision for special educational needs. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that we cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal.
11. However, we can look at the consequences of any delay by a council in issuing the final EHC Plan and the consequences of any fault prior to the time the appeal right was triggered.
12. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
13. 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)
14. 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 the final decision with Ofsted.

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How I considered this complaint

15. I made enquiries of the Council, and Mr X and Mrs X have provided further comments in response to the Council’s comments. I have spoken to Mr X and his representative on the telephone. I issued a draft decision statement and a further amended draft decision to Mr X and to the Council. I have taken into account the further information from the Council and Mr X before reaching my final decision.

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What I found

Legal and administrative arrangements

16. The Children and Families Act 2014 (the Act) sets out the way councils should assess the special educational needs and disability of children and young people up to the age of 25. The Special Educational Needs and Disability Regulations 2014 (the Regulations) and the January 2015 Code of Practice (the Code) provide guidance to councils about how to do this.
17. 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. Section F sets out the special educational needs provision and Section I names the suitable placement. Section J sets out details of the personal budget.
18. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.
19. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Annual reviews

20. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parent.
21. EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate. Earlier reviews can take place where it is considered a child’s needs may have changed or the stated outcomes are not being achieved.
22. After the review, the council has four weeks to send the child’s parents its decision about whether the EHC Plan is to continue; whether it needs changing or if it is to end. If the council decides to amend the EHC Plan it must do that “without delay”. A recent court case stated it should take 12 weeks from the annual review to complete an amended final EHC Plan

Personal budgets

23. A personal budget is an amount of money identified by a council to deliver provision set out in an EHC Plan where the parent or young person is involved in securing that provision. Councils must provide information that sets out a description of the services across education, health and social care that lends itself to the use of personal budgets.
24. Councils should prepare a budget when requested. Parents/carers can ask for a personal budget when an EHC assessment confirms that a council will prepare an EHC Plan or during a statutory review.
25. Parents/carers can be involved in securing provision through the use of direct payments, or an arrangement where the council or school hold the budget, or third party agreements where direct payments are managed by an individual or organisation, or a combination of the above. Parents/carers should be given an indication of the level of funding at the planning stage. The final allocation of funding must be sufficient to secure the agreed provision and should be set out in section J of the draft EHC Plan.
26. If a council refuses a direct payment, it must explain its reasons in writing to the parents/carers and inform them of their right to ask for a review of the decision. At present, the Council deals with these types of complaints through its corporate complaints system.
27. Direct payments are governed by separate regulations-the Special Educational Needs (Personal Budgets) Regulations 2014.

Key facts

Background events

28. The Council issued an EHC Plan at the end of December 2017. The OT’s report of June 2016 referred to Mr X as being diagnosed with autistic spectrum condition (ASC) and functional behaviour delays.
29. The OT also noted Mr X has hypermobile joints (very flexible joints which causes pain), and sensory difficulties in his visual perception and auditory abilities with difficulties also in manual dexterity. The OT noted that Mr X required time to understand and process requests and in filtering out background noise. His parents noted that he had restricted patterns of behaviour and lacked a sense of danger.

The OT report of June 2018

30. There was a further OT report in June 2018 which was very detailed. It identified that Mr X’s motor integration skills were below average which led to, among other things, sloppy writing, poor organisation and poor posture. In relation to his fine motor skills, the OT stated:

“[Mr X] scored in the severe challenge range, scoring 1st percentile on the fine motor skills section. While [Mr X] can do the tasks, they take him a long time, and are effortful. This is directly related in parts to his reduced visual-motor integration skills, poor postural stability, reduced shoulder stability, hypermobility as well as poor manual dexterity skills”.

31. The report highlighted Mr X’s sensory difficulties and noted that he had ‘below average executive function’. The OT made recommendations for direct and indirect OT.
32. Indirect OT normally means special educational services which include progress reviews, cooperative planning, consultation and modification of environment, curriculum, materials or equipment.
33. Mr X attended the Council’s medical hub to undertake his Certificates of Secondary Education (GCSEs).
34. On 7 August 2020, there was a SEND Tribunal hearing. The Tribunal concluded that the parties agreed broadly the level and content of the OT which Mr X required as set out in the 2018 OT report. It was agreed that the relevant parts of section F of the Plan should be brought in line with the OT’s recommendations.

Events of this complaint -2020

35. Mr X started at a college in September 2020 studying a two year creative arts course.
36. On 10 September the Council issued a final EHC Plan, amending section F to include twelve sessions of PTSD treatment, 47 hours of direct OT and for a programme of indirect OT to be devised by an OT to improve Mr X’s underlying motor skills, handwriting and fine motor skills; to improve core and postural stability and a daily sensory programme to help Mr X’s poor concentration, participation and socialisation in multi-sensory environments.
37. The Council thought Mr X’s OT would be able to do an assessment for the provision of the indirect OT.
38. On 14 October, the Council wrote to Mr X’s representative with the nominal cost of providing indirect OT. The Council apologised for the delay.
39. Mr X told the Council that he wanted it arranged and provide the indirect OT. The Council explained that there would need to be an assessment first by the OT before it could arrange a programme of indirect OT.
40. The Council says it made many efforts in March, July and December 2020 and March and July 2021 to source an OT to undertake an assessment. This involved approaching individual sole traders, four independent providers across the Southeast, a London based company and four locum agencies.
41. However, the Council says that one of the reasons it could not find an OT practice was because OT practices were unwilling to work with Mr X’s representative. The Council says that the representative had become known in the area for being difficult to work with, and this prevented OT practices wanting to work with the family.
42. In October 2020 there was an annual review of Mr X’s EHC Plan. The Council asked Mr X’s consent to make a referral to the National Health Service (NHS) OT providers so to commission an OT assessment. After this review, the Council agreed to amend the EHC Plan and told Mr X this. But it did not explain how the EHC Plan would be amended.
43. Mr X agreed to the referral to the NHS OT providers in early December 2020. Also, Mr X asked for the PTSD treatment to be provided.

January 2021 to February 2022

44. In February 2021, the Department of Education (DfE) issued a determination against the Council because of the representative’s complaint to it. The DfE determined that there had been a breach of s42 of the Children and Family Act 2014 because the Council had not provided the indirect OT as specified in section F of Mr X’s EHC Plan. The DfE wrote:

“in this case he [Secretary of State] will not be making an order declaring that you [the Council] are in default of s42 duty under the 2014 Act and will not be giving direction for the purpose of enforcing the performance of that duty. This is because he [Secretary of State] does not consider that doing so would put matters right or expedite the implementation of the OT provision”.

45. On 5 March 2021, at stage two of its complaint procedure, the Council accepted that there had been a failure to provide the indirect OT. It stated that the pandemic had created particular difficulties. It wrote:

“However, individual therapy was also described in your [Mr X’s] EHC plan as being subject to a programme devised by an OT and delivered by trained individuals under the direction of an OT”.

46. The Council explained that the referral to the NHS had been unsuccessful, stating the availability of NHS OTs may have been affected by Covid-19 as some OTs had been re-deployed to work in other area of the NHS.
47. The Council explained that it could only provide the nominal costs of the indirect OT. But the actual costs would be considered once an OT had completed an assessment and devised a programme of indirect OT provision. Mr X says that the Council then provided the actual costs and told him that it would be £295.00 per year, which he calculated worked out at £6.00 for 40 minutes per week. Mr X did not consider he could employ an OT at that rate.
48. The Council agreed that Mr X was entitled to 12 sessions of PTSD treatment.
49. The Council said it wanted to do a reassessment of Mr X’s OT needs. The Council issued a final EHC Plan in mid-March 2021. Mr X’s representative says that there were no amendments made. This EHC Plan was the subject of the recent Tribunal of January 2023.
50. In October 2021, the Council told the Ombudsman that Mr X was among a cohort of 65 children and young people awaiting an OT assessment where the Council could not source OT engagement. The Council says that the impact of a national shortage of OTs is a ‘fragile relationship’ between the Council and therapy providers.
51. In December 2021 Mr X, with the help of a special needs organisation, sent a pre‑action protocol letter (under the judicial review procedures) to the Council concerning the non-provision of indirect OT. Mr X has not proceeded with the judicial review. Had he done so, we would have discontinued our investigation.

Events of 2022

52. In early 2022, Mrs X found an OT to carry out an assessment and told the Council this assessment would go ahead in the absence of the Council arranging one. The assessment was completed. The Council agreed to reimburse the representative the cost of this assessment. Mrs X says that, if she could find an OT to do the assessment, then she cannot accept the Council could not have. Mrs X feels aggrieved that the Council make negative, unfounded comments about her. (But this is not a complaint which I am investigating).
53. The recent OT assessment sets out clearly Mr X’s difficulties and describes in detail the impact on Mr X’s learning as a result. The OT states that Mr X has “significant challenges in his sensory modulation, sensory motor and fine gross motor skills that impact on his ability to participate successfully”.
54. Mr X’s creative arts course ended in August 2022. Mr X started at College B to study a two year Music GCSE. College B is the named placement in Mr X’s EHC Plan. Mr X considers that his talent is for music, and he wants to make a career in music.

SEND Tribunal of January 2023

55. The Council issued a final amended EHC Plan for Mr X in March 2021. Mr X submitted an appeal to the SEND Tribunal. It has taken a long time for the appeal to be heard for reasons which I am not investigating. Mr X was supported in the Tribunal by solicitors on a pro bono (free) basis.
56. The appeal was heard in January 2023. Mr X says that the Council sought to reduce his direct OT from 47 hours per month to 21 hours, that the Council had not provided the 12 sessions of therapy for his PTSD and was saying this should be removed, and details of the personal budget were not included. Mr X’s solicitors said that the current budget for the direct OT should be increased to OT rates around £115.00 per hour and that the current budget was insufficient. The solicitors also pointed out that the current budget did not cover travel costs for Mr X to visit the gym for his personal training sessions.
57. The relevant decisions of the Tribunal were as follows:

• Mr X’s placement at College B was confirmed (although the Council had agreed this before the hearing);
• the Tribunal ordered that Mr X should receive 56.5 hours of direct OT in line with the February 2022 OT assessment;
• that the indirect OT should remain;
• that the PTSD therapy should remain; and
• music lessons should be provided as a social care need.

Findings: complaint (a): delay in OT assessments

58. The Council has accepted that there was a significant delay in arranging the OT assessment for Mr X’s indirect OT. The Council and Mr X have resolved and remedied the resulting injustice by paying for the OT assessment arranged by Mrs X and backdating an agreed payment for the missed indirect OT.
59. The Council says that in April 2023 there were only six identified cases on a Kent wide basis where the wait time for an OT assessment had exceeded 12 months. The Council says that there is limited scope of therapy services providers with the flexibility and capacity to deliver provision or undertake assessments. In addition, there are nationwide workforce issues in respect of recruitment and retention of OTs. Previously, there had been some 65 children awaiting assessments. So, there has been progress.
60. The Council and the Health Authority have been the subject of a joint inspection by Ofsted and the Care Quality Commission (CQC) of its special educational needs’ services. In September 2022, Ofsted and CQC revisited to check progress since its last inspection of 2019, when it had found serious failings. The review concluded that insufficient progress had been made, including a lack of access to, and availability of, services like speech and language therapy and educational psychologists’ assessments. And a lack of help for pupils with anxiety, and social, emotional and mental health needs. I cannot see that the review specifically mentioned a lack of availability of OT assessments although it did refer to the delay in arranging Speech and Language Therapy assessments. However, it is clear that there is a significant concern about how the Council is providing services for pupils with special educational needs.
61. The plan now is that the Council is working with the Department of Education (DfE) to produce a progress plan for improvement.
62. I consider that there is evidence of a service failure by the Council in respect of its delay in arranging OT assessments. But Ofsted, CQC and the DfE are involved and there is little we can add to the progress plan and oversight by these other agencies. However, if any of the other young people, who are affected by this delay, complain to the Council, it should accept that there has been fault and look to remedy their injustice in accordance with our guidance on remedies and in line with what they offered to Mr X.
63. The Council has accepted this finding and remedy for other young people who might be affected.

Complaint (b): delay in finalising Mr X’s EHC Plan after the annual review of October 2020

64. The Council has accepted it should have issued a final amended EHC Plan by January 2021. The Council issued a final EHC Plan by mid-March 2021, some two months overdue.
65. I consider that the above two-month delay amounts to fault. If the Council had issued a final EHC Plan by mid-January 2021, the Tribunal would have been heard two months earlier, ie November 2022. So, the Tribunal’s decisions would have been known two months earlier.
66. The Tribunal awarded Mr X an additional 9.5 hours of direct OT per month (19 hours in total), and it confirmed the need for 12 sessions of PTSD treatment. But the Tribunal had no jurisdiction to determine the amount of the personal budget to meet Mr X’s needs.
67. To date, there is no agreement about the costing of the future additional OT hours. However, Mr X’s solicitor is pursuing this and therefore it is appropriate to allow this negotiation between Mr X’s solicitors and the Council to take place. I am not investigating how the Council decides to cost the future direct OT. But, once this is resolved, the Council will need to consider how it should reimburse Mr X the cost of these lost 19 hours caused by its two month delay.
68. Mr X also says that the social care assessment was delayed because it was only arranged at the point Mr X appealed. As a result of this assessment, Mr X started to receive 5 hours social care to help him become independent. Mrs X says this equates to £400 of delayed social care.

Complaint (c): insufficient personal budget for direct OT

69. I reconsidered my initial findings in the light of further information from the complainant and the Council.
70. The Council says that the direct payments are made to Mr X. The Council says Mr X is not receiving a personal budget. There is also no formal written agreement because the Council says the family was unwilling to sign a formal agreement. Mr X and his representative strongly deny this.
71. However, regardless of this discrepancy between the Council and Mr X, he has been receiving payments to attend his local gym, with a personal trainer, in the absence of the availability, according to the Council, of an OT willing to work with the family. But I note Mrs X was able to find an OT to undertake the required assessment in 2022, and she has found an OT service also willing to provide an OT service to Mr X in the future.
72. The initial costing for Mr X’s budget was based on £85.00 per week to be paid on a termly basis (total £3,825 per year). Mr X says that the gym charge increased once he became an adult from £25 per month as a student to £45.00 as an adult. Mr X has a personal trainer at £30.00 per hour and that cost has remained the same. Mr X’s father takes him to the gym by car, but the Council provides no travel costs. Mrs X says that she has made up the gym shortfall, approximately £240 per year. But she has had to reduce the payment by limiting Mr X’s access to the gym to off peak times.
73. The Council says that it has paid the increase in the gym membership.
74. Mrs X says the above payments were always an interim arrangement while the Council searched for an OT. But it never did find one so the payment for the gym continued.
75. In 2019, Mrs X says she learnt that the Council’s personal budget arrangements for her daughter were costed differently to Mr X’s, and was based on the hourly OT cost (plus travel and mileage) and moreover the personal budget details were set out in her daughter’s EHC Plan at section J. At this point, Mrs X says that she and Mr X raised concerns about how his budget was determined, explaining it was insufficient to meet his direct OT needs as set out in his EHC Plan.
76. The Council now accepts that the gym membership payments were an interim arrangement. In early September 2023, the Council wrote to Mr X’s solicitors, saying it was not previously aware that the gym membership was an interim arrangement believing instead it was the family’s preferred choice. But Mrs X has provided information to evidence that the gym membership was seen as an interim arrangement.
77. Mrs X, Mr X’s solicitors and the Council have been in negotiation and the Council has accepted that it is required to make a backdated payment from September 2019 to September 2022, in recognition of its failure to ensure Mr X had a sufficient budget to meet the required direct OT. It is to the Council, Mr X and Mrs X’s credit that they have agreed some way forward.
78. I consider that it is fault that the Council has not responded appropriately to Mr X’s concern about the insufficiency of the payments for direct OT provision, that it has relied upon an interim arrangement of gym membership for too long and details of Mr X’s payments, which I consider should have been regarded as a personal budget, have not been set out in his EHC Plan.
79. In addition, I consider that there may be other young people whereby the costing for their personal budgets may not be clear and are not contained in the EHC Plans at section J.
80. Mrs X has now provided her calculation for the backdated payment to the Council based on information she received from a local OT service. She says that the direct OT for the past three years (September 2019 to September 2022), had it been provided, amounts to £12,000 a year, based on the OT hourly rates, travel and mileage time, so £36,000 for the past three years. But this would be minus what the Council has paid for the gym membership (approximately £11,500). Mrs X says the Council has only offered £9,000 as a backdated payment and she is unclear how this has been costed.
81. This offer has not been accepted by Mr X and Mrs X.

Complaint (d): delay in providing PTSD treatment

82. The Council has accepted that Mr X was entitled to 12 PTSD treatment sessions. It says that there was a time when he said that he did not want these sessions and that is the case. But, by the end of 2020, Mr X was agreeing and asking the Council to arrange these sessions. My view is that the Council should have provided these sooner in accordance with Mr X’s EHC Plan, and failure to do so is fault causing avoidable frustration and time and trouble.
83. I understand that Mr X has now confirmed that he would like a personal budget so that he can arrange the PTSD sessions directly. The Council and Mr X’s solicitors are in negotiation about this. So, I do not intend to comment further.

Complaint (e): communication difficulties

84. I am only considering Mr X’s communication with the Council. Mr X has an advocate for his social care needs, but not for his special educational needs. Mr X has said that he wants his mother, Mrs X, to act as his advocate.
85. Mr X says he is only allowed to speak to two named officers from the special needs department. But he says that he does not receive responses to his emails, or telephone calls, and he would like to be able to telephone the special needs department and speak to any available officer when he has a query, and to receive a prompt response. Mr X would prefer not to have to make complaints to have answers to his questions.
86. The Council accepts that communication from the special educational needs (SEN) department to families has been poor, and the Council has recently created an enquiry SEN Hub to better manage its communications with SEN service users. The Council says a particular problem in this case is the amount of correspondence received from the family (in particular from Mrs X) and this is why it was considered best for there to be only two named officers to deal with the family’s queries.
87. I consider that the Council should provide prompt replies to Mr X’s emails or telephone calls as it would for any other young person with special needs. I consider not responding to Mr X’s emails or calls promptly amounts to fault.
88. Mr X is right that he should not have to make a complaint to receive an answer.

Complaint (f): cost of musical aids

89. The Tribunal dealt with this issue, so I am unable to pursue this matter.

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Agreed actions

90. The Council has agreed the following to remedy the injustice caused by the Council’s faults:

• if another young person complains about the delay in an OT assessment, the Council will accept fault and remedy any injustice in line with our guidance on remedies and how it remedied Mr X’s injustice;
• within one month of the final statement, the Council will pay Mr X £750 for the delay in providing the PTSD treatment and for its delay in considering his concern about the insufficiency of the payments to meet his direct OT needs;
• within one month of the final statement, the Council will consider Mr X’s request to be able to ring the special needs department as and when convenient for him, and respond to his emails/telephone calls within 5 working days, which I consider is a reasonable response time;
• the way Mr X’s payments for direct OT provision are costed is in dispute. This affects the future arrangement for 2022/2023 and the backdated payment. I am only considering the latter period (backdating period). The Council has agreed that, within four weeks of the final statement, the Council will calculate the backdated payment and explain in writing to Mr X and Mrs X exactly how this backdated payment is costed, and the period covered. However, it is not our role to direct how a council commissions and decides the amount of a personal budget except to say that the Council is under a duty to ensure that a personal budget is sufficient to meet the needs as set out in an EHC Plan, it should be costed to meet the provision required and it should be in accordance with its commissioning policies and applied consistently to all service users. If agreement is reached about the backdated payment, Mr X can use this to make up for the lost direct OT provision. If agreement cannot be reached, I understand Mr X’s solicitors will pursue this;
• the Council’s delay in managing annual reviews and amending EHC plans on time, when required, has been a consistent complaint from Mr X. I recognize that the Council’s SEN department is under close scrutiny from other agencies. But, within one month of the final statement, the Council will let the Ombudsman know how it is resolving its delay in amending Mr X’s EHC Plan;
• the Council will provide a prompt way whereby those in receipt of personal budgets, who are unhappy with the amount offered, can have the decisions reviewed, as required by the guidance. This could, for example, be a referral to a special needs manager, who has had no previous involvement. But the Council has agreed to have a review system and that this will be set up within one month of the final statement.

91. The Council should provide us with evidence it has complied with the above actions.

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Final decision

92. I find the Council at fault causing injustice. I have made recommendations to remedy the identified injustice, which the Council has accepted. I have therefore completed my investigation and am closing the complaint.

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Investigator's decision on behalf of the Ombudsman

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