Summary: Ms B complained about the provision of therapies and activity sessions in accordance with her son D’s Education, Health and Care Plan between September 2020 and July 2022. We found some fault. We consider the Council has offered an adequate remedy for the Occupational Therapy and Speech and Language Therapy but did not acknowledge the failure to provide the activity sessions. The Council has agreed to pay £1165 for the missed sessions and to improve its procedures for the future.

The complaint

1. Ms B complained that the London Borough of Tower Hamlets (the Council) failed to secure provision for her son D in accordance with sections F and J of his Education, Health and Care (EHC) Plan dated 29 September 2020: specifically Speech and Language Therapy (SALT) sessions, Occupational Therapy (OT) sessions and activity sessions (Activity 1), either through direct provision while in a placement or through a personal budget when not in a placement. This has caused D to miss out on essential therapies and activities and Ms B significant distress and time and trouble in trying to resolve the matter.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), 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)

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What I have and have not investigated

6. I have investigated the period from September 2020 until July 2022.

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How I considered this complaint

7. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Ms B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

Special educational needs

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
10. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

Personal budgets

11. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

Appeal rights

12. There is a right of appeal to the Tribunal against the description of a child or young person’s SEN (section B), the special educational provision specified (section F), the school or placement or that no school or other placement is specified (section I). There is no right of appeal against section J (personal budgets).

Appeals and our jurisdiction

13. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
14. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
15. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

What happened

16. Ms B’s son D has additional needs. His EHC Plan from September 2020 provided for a programme of Speech and Language Therapy (SALT), a programme of Occupational Therapy (OT) and weekly sessions of an activity (Activity 1) in Section F. In Section I it named a school (School Z) and in section J it detailed a personal budget which included 45 weekly Activity 1 sessions, 12 sessions a term of SALT and 16 sessions a term of OT. School Z had confirmed in its offer letter that it would provide support from OT and SALT specialists as part of the placement.
17. The Council raised internal concerns about Ms B’s use of the personal budget in October 2020. The invoices for Activity 1 sessions which the Council queried predate the period of this investigation (from September 2020). I have not seen evidence these concerns were communicated to Ms B or that the Council notified her that the personal budget was being withdrawn. Neither have I seen evidence of any invoices for Activity 1 sessions submitted by Ms B between September 2020 and March 2022.
18. Ms B appealed to the SEND Tribunal against the final EHC Plan in November 2020. Her appeal included the placement named in Section I and the content of Section F.
19. From September 2020 to July 2021 D attended School Z. Ms B then withdrew him from the school as it did not have sixth form provision.
20. Paperwork from the SEND tribunal confirms that D was receiving SALT online until October 2020 when face-to-face sessions resumed.
21. At the beginning of September 2021, the Council identified a residential college for D (College Y), anticipating he would start shortly afterwards. The SEND Tribunal heard the appeal shortly after this and adjourned the case to allow D to attend College Y for a 13 week assessment. The start was delayed until November 2021. He attended College Y until February 2022 when Ms B withdrew him due to dissatisfaction with the arrangements for contacting/returning home.
22. Paperwork from the SEND Tribunal confirmed that D received SALT and OT while at College Y.
23. In March 2022 the SEND Tribunal heard the adjourned case.
24. In April and May 2022 Ms B submitted invoices for 11 Activity 1 sessions totalling approximately £850 which the Council paid.
25. The SEND Tribunal issued its decision in June 2022 and the Council issued a final EHC Plan in mid-July 2022 with an unnamed specialist college in Section I and no personal budget in section J.
26. In mid-December 2022 Ms B made a formal complaint that the Council had failed to find D a suitable educational placement between September 2020 and July 2022 and that it had not ensured the provision in section J (OT, SALT, Activity 1 sessions and mental health support) was put in place.
27. In January 2023 the Council finalised a personal budget for an EOTAS package backdated to start from January 2022. It made two backdated payments to cover eight weeks of the summer term and the autumn term of 2022. D’s current EHC Plan was finalised in February 2023 including a Personal Budget in Section J but without Activity 1 sessions .
28. The Council responded to the complaint at stage one of its complaints procedure in February 2023. It said:
• D attended School Z from September 2020 to July 2021 and the Council was satisfied that all provision was delivered in accordance with the EHC Plan.
• The OT and SALT were specified under section J as part of the personal budget, but the personal budget was withdrawn due to concerns about how the money was being accounted for.
• From September to November 2021 D was on the roll of School Z but he was not attending and not receiving education. The Council did not know the reasons for his non-attendance.
• D attended College Y from November 2021 to February 2022 and was receiving the therapies during this period.
• From February 2022 to July 2022 D did not receive the therapies detailed in the EHC plan.
• It should have made more effort to replace the SALT and OT while D was out of school. It offered £500 for D and £100 for Ms B for the period from September to November 2021 and £1000 for D and £250 for Ms B for the period from February to July 2022 when the final EHC Plan was issued.
29. In respect of the Activity 1 sessions, it said they were not specified in Section F of the EHC Plan, so the Council was not responsible for this provision. As they were included as part of a personal budget in Section J it was Ms B’s responsibility to deliver these.
30. Ms B escalated her complaint to stage two on 30 June 2023. She said that the OT and SALT had not been delivered in the settings or under the personal budget. She said the Council owed her thousands of pounds for the missed provision and both placements were unsuitable for D causing him mental distress.
31. The Council responded in November 2023. It said the personal budget was not applicable while D was in a placement, the personal budget had been withdrawn due to concerns about its use and the Activity 1 sessions were for Ms B to deliver.
32. Ms B complained to us in March 2024.

Analysis

33. Ms B’s complaint to the Council included concerns about the suitability of placements D attended and the provision of OT, SALT and Activity 1 sessions at the placements between September 2020 and July 2022. As Ms B appealed to the SEND Tribunal about these placements, I am unable to investigate these issues.
34. D was not in a placement between September and November 2021 and February to July 2022. This means the SALT, OT and Activity 1 provision detailed in Section J was applicable and I can investigate this.
35. The Council accepted in its complaint response in February 2023, that it had not made sufficient effort to secure the OT and SALT outside of the placements and offered symbolic payments to Ms B and D. These payments are in line with our Guidance on Remedies and so I am satisfied that the injustice to Ms B and D has been put right.
36. The Council said that as Activity 1 sessions were not included in Section F it was Ms B’s responsibility to arrange them. This was wrong. Section F did include weekly music lessons as did Section J. So, the same principle applies as it did to the OT and SALT sessions: the Council should have secured this provision when D was not in a placement (between September and November 2021 and February to July 2022). Instead, it relied on Ms B to secure provision which was fault.
37. Ms B submitted invoices for 11 Activity 1 sessions in April and May 2022, which the Council reimbursed. Section J specified 45 weekly lessons over the year. D was out of education for approximately 7 months and should have received approximately 26 lessons during this period. So, D missed out on 15 lessons and Ms B has been caused frustration and inconvenience in trying to resolve the matter.
38. I have seen invoices for 2019/2020 and it was over these (in addition to concerns about other payments) that the Council suggested the personal budget was being misused. However, I have seen no evidence that the Council ever formally withdrew the personal budget and Ms B agrees that the personal budget was never withdrawn. It was fault to say that it had been in the complaint responses.

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Agreed action

39. In recognition of the injustice caused to Ms B and D over the failure to provide Activity 1 sessions, I recommended within one month of the date of my final decision, that the Council (in addition to the amounts it offered as part of its own complaint response) pays Ms B £1165 for the cost of D’s missed activity sessions. I worked out this amount on the basis of the invoices the Council reimbursed for April and May 2022.
40. I also recommended that the Council within two months of the date of my final decision, reviews its procedures for withdrawing a personal budget and ensures that clear notification is given to a service user when the Council intends to withdraw a personal budget with full substantiated reasons and a right of review or appeal.
41. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

42. I consider this is a proportionate way of putting right the injustice caused to Ms B and D and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman