Summary: Mrs Y complained about the Council’s delay in delivering the educational provision in her child, Z’s Education, Health and Care Plan. We have found fault by the Council in failing to: arrange the provision within the required statutory timescales; and agree reimbursement of the payments Mrs Y made for provision in the meantime, causing injustice. The Council has agreed to remedy this by apologising, making payments to reflect the impact on Z of the missed provision, upset, frustration and worry caused to Mrs Y, agreeing with and reimbursing Mrs Y for any outstanding provision costs, and making a service improvement.

The complaint

1. The complainant, Mrs Y, complains about the Council’s delay in delivering the special educational needs (SEN) and alternative education provision set out in her child, Z’s Education Health and Care (EHC) Plan. She says:

• Z’s EHC plan was issued on 22 June 2023, in accordance with the SEND Tribunal order of 9 June 2023; and
• The Council should have delivered the SEN and alternative provision in Z’s EHC plan within five weeks from the date of the tribunal order (so by July 2023). But it did not put the full package of provision in place until the end of March 2024.

2. Because of the delay, Mrs Y had to arrange and pay for Z’s provision until the package was put in place by the Council. She says the Council has not fully reimbursed her for these costs.
3. Mrs Y also had to spend time chasing the Council about the arrangements for Z’s educational provision. This, together with the delay, caused her and the family upset and stress. This also affected her physical health. She was admitted to hospital due to a serious asthma attack the doctors told her was caused by stress.
4. Mrs Y wants the Council to reimburse her for the outstanding costs of the education she arranged for Z before the package was put in place, and pay financial redress for the upset its failures caused her and Z.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
6. 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)
7. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

9. I made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint.
10. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened?

Education, Health and Care Plan (EHC Plan)

11. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
12. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
13. 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.

What happened

14. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

15. Mrs Y appealed to the SEND Tribunal against the provision and placement in Z’s EHC plan. The Council had named a mainstream school as Z’s placement. Mrs Y disagreed with this and asked for alternative provision (education otherwise than at school) to be made for Z.
16. During the course of the tribunal proceedings, the Council agreed Z’s needs had changed and it should make alternative provision for Z.
17. On 9 June 2023 the Tribunal ordered the Council to provide Z with an educational package of 25 hours a week.

Z’s EHC plan

18. The Council issued Z’s new EHC Plan, in accordance with the Tribunal order, on 22 June 2023. The provision for Z in the Plan included 25 hours a week of broad curriculum education to include english, maths and science.
19. The Council was required to arrange and deliver this education package within five weeks of the tribunal order. The Council accepts Z’s provision should have been in place from 6 July 2023.

July and August 2023: Mrs Y’s contact with the Council about Z’s provision

20. Z’s education package was not in place by 6 July. Mrs Y’s solicitors complained to the Council about this on her behalf.
21. The Council said it was currently arranging Z’s education package and consulting with Mrs Y’s preferred providers.
22. Mrs Y complained to the Council again in August. She said it had still not arranged Z’s education package for the start of the new school year in September. It had refused her request for a personal budget. She was paying privately for Z’s provision.

September 2023: Approval of Z’s education package

23. In September, the Council, told Mrs Y its Governance Board had to agree the funding for Z’s education package. The Board had asked for further information before making a decision about this. It would be in touch with her to discuss the package.

October to December 2023: Further discussions about Z’s package

24. The Council had discussions with Mrs Y about the proposed package. Changes were agreed and it said it would submit the amended package to the Board for agreement on 18 October.
25. Mrs Y asked the Council for an update. The Council confirmed, on 24 October, the Board had agreed the package, subject to confirmation about one of the provider’s (A) qualifications. The approved weekly package included:

• 18 hours: provider A
• 1.5 hours: swimming
• 2 hours: cooking
• 1 hour: provider B
• 2 hours: animal therapy

26. Mrs Y had arranged and paid for Z’s sessions in July with provider A, and arranged for the sessions to continue from September so Z did not lose their place. Mrs Y also arranged and paid for Z’s other provision in the package from September.
27. The Council told Mrs Y it would consider reimbursing her for the cost of the alternative provision she had to arrange for Z because the package was not in place by 6 July.

January 2024: Approval of the costs of Z’s education package

28. The Board approved the costs for the education package. It agreed the Council would make direct payments to provider A and Mrs Y’s request for a personal budget to pay the other providers herself.
29. The Board also agreed to reimburse Mrs Y for the cost of the provision she had arranged and paid for from 6 July.

The position from January 2024

30. My understanding is:

• The content and funding for Z’s education package was agreed by the Council in January 2024;
• The Council (after chasing) paid provider A for Z’s Autumn term sessions, and has paid provider A directly for Z’s sessions from January 2024; and
• Mrs Y says the Council made payments through the personal budget for the cost of Z’s other provision from the start of the Spring term.

31. But the Council has not agreed with Mrs Y about the reimbursement of the payments she made for Z’s provision from July to December 2023.
32. I understand the Council made a payment of £1,192 for some of these costs, and a further payment of £2,800 which included £1,903 for agreed equipment and resource costs.
33. But Mrs Y says these payments do not fully reimburse her for all the costs she incurred, including the cost of Z’s sessions with provider A (£400) in July 2023.

My view – was there fault by the Council causing injustice?

Failure to deliver the provision in Z’s EHC Plan

34. The Council has accepted the education package provision in Z’s EHC Plan should have been in place from 6 July 2023.
35. But it failed to agree the content and funding for the package until January 2024. This failure was fault.

Impact of the delay in arranging Z’s education package – July 2023

36. Because of the Council’s failure, Z missed out on almost all of their education package from 6 July 2023 to the end of the summer term.
37. Z should have been provided with 50 hours of education during this two-week period. But because the Council had not put the package in place, Z’s only provision was the private swimming session and five hours with provider A Mrs Y had arranged herself.
38. We usually consider a remedy payment of between £900 and £2,400 a term is appropriate to reflect the impact of missed provision on the child or young person. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
39. Here, as Z effectively missed out on 90% of their package over the last two weeks of term, I consider the remedy should be at the higher end of the scale.
40. Mrs Y was also caused upset and frustration because of the Council’s delay in putting the package in place, which also required her to arrange some provision for Z instead.

Impact of the delay in arranging Z’s package – Autumn term 2023

41. The Council did not formally agree the package content and funding until January 2024. Z did not miss out on their provision during the Autumn term but only because Mrs Y arranged this herself (and paid for, with the exception of provider A) while formal approval was being obtained.
42. Mrs Y was caused continued worry, upset and frustration because of the Council’s delay in agreeing Z’s education package.

Failure to reimburse Mrs Y for the provision she paid for

43. The Council agreed to reimburse Mrs Y for provision she paid for while the package was being approved.
44. Mrs Y says the Council has not reimbursed her for all these costs. The information I have seen so far shows the Council has not yet reached agreement with Mrs Y about these costs and their reimbursement. Its failure to do so is fault.
45. Because of this, there may still be payments due to Mrs Y and she has been caused worry and uncertainty about the position.

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Agreed action

46. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y for the delay in arranging Z’s education package and agreeing the reimbursement of her costs. This apology should be in line with our guidance on Making an effective apology; and
2. pay Mrs Y £335 as a remedy for Z’s benefit, to recognise the impact on Z of the missed education provision for the two weeks of the summer term;
3. contact Mrs Y to agree the details of the payments she made for Z’s provision from 6 July to December 2023, and reimburse her for any outstanding costs; and
4. pay Mrs Y £500 to reflect the uncertainty, upset and frustration caused by its delay in agreeing the Z’s education. This is a symbolic amount based on our guidance on remedies
47. And within three months from the date of our final decision, the Council has agreed to:
1. share the learning from this decision with relevant officers; and
2. remind officers they must ensure the delivery of provision in EHC Plans, including those issued following a tribunal order, within the required timescales.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to remedy the injustice by taking the above actions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman