Summary: Miss X complained about the way the Council handled her son’s special educational needs, including providing all the provision set out in his Education, Health and Care plan. Miss X said the missed provision had an impact on her son, and it caused her unnecessary distress and frustration. We find the Council at fault and this caused injustice. The Council has agreed to apologise.

The complaint

1. The complainant, who I refer to here as Miss X, complained about the way the Council handled her son’s special educational needs. Specifically, she complained that the Council:
1. initially agreed to an educational psychology assessment but later changed its mind;
2. failed to implement all the provision set out in her son’s Education, Health and Care plan within the statutory timeframe after a tribunal; and,
3. communicated poorly with her.
2. Miss X said the delay getting an educational psychology assessment led to a delay meeting her son’s needs. She said the missed provision has had an impact on her son. She said it caused her unnecessary distress and frustration, and she paid for some of the provision herself.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. We must 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. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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.

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How I considered this complaint

8. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
9. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies (updated).

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What I found

What should have happened

10. The Special Educational Needs and Disability (SEND) Regulations (2014) say that when a tribunal has ordered a council to amend an Education, Health and Care (EHC) plan, the council should amend in the plan within five weeks of the order being made. Once EHC the plan is in place, the council must implement the provision set out within it.

What happened

11. Miss X’s son, B, has special educational needs and an Education, Health and Care (EHC) plan.
12. In April 2022, there was an annual review of B’s EHC plan. The Council agreed to reassess B’s needs with an updated report from an educational psychologist.
13. In June, the Council sent Miss X an email saying the assessment would not be a “full cognitive assessment”. Miss X questioned what the Council meant by this.
14. Later that month, the Council replied. It apologised for the way its earlier email came across. The Council said it was not best placed to explain to Miss X what the assessment involved. It advised Miss X to speak to the educational psychologist.
15. In September, the SEND Tribunal ordered the Council to make changes to B’s EHC plan. The Council issued the final amended plan in early October.
16. Miss X complained to the Council that not all of B’s provision was in place by the time it should have been.
17. The Council said it had taken longer than anticipated to arrange some elements of the provision. It apologised for the delay and for Miss X’s distress and disappointment. It explained it was trying to arrange the provision the school was not able to provide.
18. The Council said it was setting up a personal budget to meet the cost of the provision set out in B’s EHC plan that the school could not deliver. It set out what the personal budget would cover and the monthly amount. The Council also said it would backpay a larger amount for the months of October, November, and December to cover the costs that Miss X had paid for the provision, as well as reimburse her for some costs.
19. The Council accepted there had been gaps in the timeliness of its communications with Miss X. It apologised for this and for the distress this caused Miss X.
20. In January 2023, an educational psychologist assessed B.
21. In February, Miss X complained to the Ombudsman.

Analysis

Educational psychology assessment

22. Miss X complained that the Council initially agreed to an educational psychology assessment but later changed its mind (part a of the complaint). She said the Council agreed to an educational psychology assessment in the April review, but in the June email it changed its mind about the type of assessment that would be done.
23. The Council says it agreed to an educational psychology assessment in the April review. However, it says it did not change its mind. It says the June email was meant to clarify what had been agreed. The Council accepts that the June email reads as if the Council changed its mind.
24. The Council also accepts that it did not explain the difference between what was agreed in the review and what was set out in the June email.
25. I do not find the Council changed its mind. However, I find the Council communicated poorly with Miss X. The June email could have been much clearer, and the Council should have explained the difference between what was agreed in April and what was set out in June. I find this is fault.
26. I find this fault caused Miss X uncertainty, which is injustice.

Provision

27. Miss X complained that the Council failed to implement all the provision set out in her son’s Education, Health and Care plan within the statutory timeframe after a tribunal (part b of the complaint).
28. The Council accepted that it did not have all the provision in place within the statutory timeframe after the tribunal’s order.
29. B’s EHC plan says that he will receive occupational therapy “via a consultative approach”, meaning the occupational therapist will build a relationship with the school and Miss X. The EHC plan says the occupational therapist will observe B and that each occupational therapist visit to the school “will comprise of 60 minutes of direct intervention”. This implies that the occupational therapist will carry out direct intervention with B for one hour each time they visit the school.
30. However, the Council says this is not the case. The Council accepts this is misleading and that the plan does imply that B will get direct intervention when he will not.
31. The Council is responsible for drawing up the EHC plan. It is therefore responsible for making sure the plan is clear. I find the plan was not clear, and the plan misled Miss X. This is fault.
32. I find this fault caused Miss X injustice in that it caused uncertainty.
33. Neither the school nor the Council could provide B with trampolining. This was part of the provision set out in his EHC plan.
34. The Council says neither it nor Miss X could reach a practical solution despite everyone’s best efforts. However, it says a solution has now been reached and B has access to trampolining.
35. I consider this is a service failure.
36. The Council arranged for a personal budget for B so that he could receive all the provision set out in his EHC plan. The Council then back paid the three months of missed provision, with a larger amount than the regular monthly personal budget payment.
37. I find this is a suitable remedy for the injustice to B, which was the impact of missed provision. Miss X paid for some provision privately, which the Council’s payments reflected. The Council also apologised for the injustice to Miss X and B caused by the missed provision (including the distress and frustration to Miss X).
38. I am satisfied the Council’s actions to resolve the issue, the payments made, and the apology remedy the injustice to Miss X and B.
39. The Ombudsman recognises councils’ good practice. In this case, the Council acknowledged what provision had not been provided and addressed it proactively. It also appropriately considered the injustice to Miss X and B of the missed provision, and remedied it. This is positive and is evidence of good practice.

Communication

40. Miss X complained that the Council communicated poorly with her (part c of the complaint).
41. In its complaint responses to Miss X, the Council accepted that there were gaps in the timeliness of its communication with her. I agree with the Council’s findings here, and agree this was fault.
42. The Council apologised for the distress this caused, which is the injustice.
43. I am satisfied the Council’s apology remedies the injustice.

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Agreed action

44. Within four weeks of this decision, the Council has agreed to apologise in writing for:
• the uncertainty caused by its poor communication (part a of the complaint); and,
• the uncertainty caused by the misleading EHC plan (part b of the complaint).
45. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
46. In arriving at this remedy, I have considered the Ombudsman’s published guidance on remedies.
47. The Council should provide us with evidence it has complied with the above action.

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Final decision

48. I have completed my investigation. I uphold Miss X’s complaint because I find fault causing injustice. Largely I am satisfied the Council has remedied the injustice. However, the Council has agreed to apologise to Miss X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman