Summary: Mrs X complained the Council took too long to approve a tutor for her son. We found the Council was at fault for the delay in approving a tutor for Mrs X’s son. The Council agreed to apologise, make a payment to Mrs X and Mr S and improve its practice.

The complaint

1. Mrs X complains that from January 2023 the Council failed to:
• provide her son, Mr S, with the tuition detailed in section F of his EHC Plan;
• carry out due diligence it said it would secure Mr S’s computer science tutor, even after Mrs X complained about this; and
• communicate effectively and reply to her corporate complaint in line with the Council’s complaint policy.
2. Mrs X said that as a result she had to pay for Mr S’s tutor, and then when she could no longer make the payments out of pocket Mr S lost the tutor. Mrs X then had to tutor herself otherwise Mr S would miss out on this provision. This caused her and Mr S avoidable distress and frustration, as she says none of this would have happened had the Council put correct provision in place from January 2023.
3. Mrs X would like the Council to apologise for not responding to her complaint on time, and failing to carry out the due diligence when it said it would even after she complained about this. She would also like the Council to acknowledge the distress the Council’s actions and lack of communication has caused her, including the time and trouble in having to complain to the Council about its failures.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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.

Back to top

How I considered this complaint

7. I read Mrs X’s complaint and spoke to her about it on the phone.
8. I considered information provided by Mrs X and the Council.
9. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

10. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to local authorities about how they provide support for children and young people with SEN.
11. Most children with SEN have those needs met by schools and early years settings. Those bodies have a responsibility to identify children with SEN, sometimes with the help of outside specialists.
12. If a school or parent has concerns that, despite a school’s SEN provision, a child is not making the expected progress, they can ask a local authority to consider whether it needs to carry out an assessment of EHC needs.
13. An EHC plan is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health, and social care.
14. Once the Council issues the final EHC plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.

What happened

15. Mrs X told us that she asked the Council for an Education Other than at School (EOTAS) package for Mr S in January 2023. The Council told us it has no records of its reply to Mrs X’s request. This was also when another annual review of his EHC Plan was due but did not happen.
16. In mid-April 2023 Mrs X shared an invoice with the Council. She said that she had already paid the spring invoice for Mr S’s tutor, but the summer invoice was now due. The Council confirmed to us that it had no records to show when it first approved the tutor for Mr S, and what the agreement for payments with Mrs X was.
17. At the end of the month the Council told her that it would take care of the invoices, but it needed to check what the correct process was for reimbursing her costs.
18. Mrs X chased the Council for action in mid-May 2023. At the end of the month, she made a corporate complaint. The Council did not reply to her complaint.
19. In late June 2023 Mrs X asked the Council to consider her complaint further because it failed to reply to it.
20. The following month the Council issued a complaint response to Mrs X, but it did not address all of the points she made in late May. The Council’s response said that in her spring invoice she claimed costs for things the Council did not agree to fund, such as lunch break supervision, lunch, drinks, and non-educational items.
21. In late August 2023 the Council agreed to refund Mrs X for the tutoring. However, she told us the Council did not apologise and did not recognise the time and trouble she went to in complaining about the service she received. The Council made two payments to Mrs X to cover all invoices she presented.
22. In the same month the Council held an annual review of Mr S’s EHC Plan.
23. Mrs X was unhappy with the Council’s response and the following day she asked it to consider her complaint further and respond to the points she made in May 2023. She also presented another invoice for tutoring for summer 2023.
24. Around this time, the Council held an annual review of Mr S’s EHC Plan. Mrs X said that during the review the Council agreed Mr S should have a tutor and agreed it would search for one.
25. In September Mrs X told the Council that the agency it had asked to tutor Mr S was not providing him with the computer science tuition that he wanted. She explained the tutor came three times, and then stopped. The agency told Mrs X it had no other replacement it could provide.
26. Mrs X told us that following this she paid for more computer science tutoring, however because of the delay in securing regular payments she now had to deliver part of the tuition to Mr S. She said this was stressful because she had to learn the material herself before teaching it to Mr S, something that she should not have to do.
27. The Council issued its final complaint response in early October 2023. The Council said that it:
• was sorry for the delay in responding to her complaint;
• still could not progress the invoice she presented in April because the Council did not carry out due diligence for Mr S’s tutor;
• paid her back the money for the spring and summer term in late August 2023, after the SEN team got the invoices in mid-July 2023; and
• commissioned an educational provider for Mr S which has a tutor for computer sciences, and they would deliver his GSCE curriculum, including computer science.
28. At the end of November 2023 Mrs X was unhappy about the Council’s actions and she asked the Ombudsman to consider her complaint.
29. The Council found a new tutor for Mr S in January 2024, and he began to access some lessons.

Analysis

Tutor approval

30. The Council accepted that it was at fault for:
• not keeping accurate records of agreement with Mrs X; and
• for the delay in completing the due diligence to approve Mr S's tutor that Mrs X found for him.
31. This caused Mrs X avoidable distress and uncertainty. Additionally, it put Mrs X in a difficult position financially which made her distress worse.
32. This was partially caused because key personnel involved in the agreement no longer worked for the Council and at the time the Council did not have a centralised system for recording this information. The Council confirmed it has already made changes to how it records this information to make sure that it keeps all correct records even after staff changes.
33. Additionally, the Council said that it was delayed in completing the due diligence on Mrs X’s computer science tutor because of an understaffed finance team. This is fault that contributed to Mrs X’s distress.
34. The Council said that it has hired more staff, and the finance team is now fully functional.
35. We consider the Council was also at fault for not acting after Mrs X told it in September 2023 that the agency it had hired to provide Mr S’s tuition did not have a computer science tutor for Mr S. This is fault. It led to further delay, and Mr X did not get suitable computer science tutor until January 2024.
36. The Council told us that when preparing the documents for our investigation it realised it paid Mrs X too much by £514.58. However, because of the time that has passed it would not ask Mrs X to return the overpayment.
37. Mrs X told us she believed the Council’s calculations assumed it had paid her twice on 31 August 2023, which it did not. Mrs X showed us her bank statements to support this.
38. Mrs X told us that there were still two outstanding invoices that she paid for from September 2023 for £450 and from October 2023 for £100. This suggests there is a difference of approximately £36 in what the Council paid Mrs X and what she had paid for the tuition. This means the Council did not overpay Mrs X. Additionally, Mrs X told us there were other computer science invoices that remained unpaid, and she believed the Council in total owed her approximately £630.
39. The Council explained the double payment it referenced and following our draft decision it audited the payment it made to Mrs X. It agreed there was an invoice from autumn 2023 that was outstanding. It agreed to pay this invoice. We welcome this action by the Council.
40. Additionally, we consider the Council should pay Mrs X £400 to recognise the avoidable distress and frustration the Council’s actions caused Mrs X.

Communication standards

41. Mrs X told us that the Council did not respond to her emails chasing the progress of securing a computer science tutor that she sent it between May 2023 and August 2023. We have not seen any evidence to suggest the Council responded to those communications and we consider this to be fault.
42. Additionally, there was delay in the Council’s responses to Mrs X’s corporate complaint. This is fault. It caused Mrs X avoidable distress and meant she had to chase the Council for answers.
43. We consider the Council should pay Mrs X £100 to recognise the avoidable time and trouble the Council’s actions caused Mrs X.

Back to top

Agreed action

44. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X and Mr S for its failure to approve Mr S’s tutor quickly and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• re-pay Mrs X £450 for the invoice she paid in 2023 autumn term;
• pay Mrs X £400 to recognise the avoidable distress and frustration the Council’s delay in securing a computer science tutor for Mr S caused Mrs X; and
• pay Mrs X £100 to recognise the avoidable time and trouble the Council’s delay in complaint handling caused Mrs X.
45. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

46. We found the Council was at fault for the delay in securing computer science provision Mr S was entitled to and the delay in completing due diligence on the computer science tutor Mrs X found for Mr S. This caused Mr S and Mrs X avoidable distress.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman