Summary: The complainant’s father (Mr X) said the Council failed to deliver all special educational provision included in his daughter’s (Y) Education Health and Care Plan. Mr X, who represented Y in her dealings with the Council, also complained about the inadequate communication from the Council. We found fault with the Council’s failure to deliver the full Education Otherwise than at School package included in Section F of Y’s plan and for its failings when responding to Mr X’s request for a Personal budget for Y. We also found fault in the way the Council dealt with Mr X’s complaint. The Council’s fault caused injustice to Y and Mr X. The Council agreed to apologise, make symbolic payments for the loss of education and distress and carry out service improvements of its complaint handling.

The complaint

1. Mr X complains about the Council’s failure to deliver all special educational provision included in Y’s Education Health and Care (EHC) Plan, finalised after his appeal to the Special Educational Needs and Disabilities (SEND) Tribunal. Mr X also complains about the Council’s inadequate communication.
2. Mr X says that because of the Council’s failings Y could not engage with education and missed the support she needed. He also says he paid privately for some support which should have been funded by the Council and his wife could not return to work. Mr X spent much time and effort communicating with the Council.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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 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.

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What I have and have not investigated

9. I have not investigated anything that happened after the beginning of June 2024. This is when the Council provided its stage two response to Mr X’s complaint. As explained in paragraph six of this decision we cannot look at anything which the Council did not have an opportunity to respond to.

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How I considered this complaint

10. I spoke with Mr X and considered the information he provided.
11. I made enquiries with the Council and considered the information it provided.
12. I referred to our Focus Report “Parent Power: personal budgets in EHC plans” published in November 2023.
13. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislative and administrative framework

Special educational provision

14. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
15. A council may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school. (Children and Families Act 2014 section 61(1)). We call it Education Otherwise than at School (EOTAS).

Personal budget

16. A Personal budget is money identified by a council to deliver provision set out in an EHC Plan where the parent or young person is involved in securing the provision.
17. Councils must provide parents and young children with information on:
• the provision for which a Personal budget may be available;
• details of organisations that provide advice and assistance on Personal budgets;
• the conditions which must be met before direct payments may be made;

(Special Educational Needs (Personal budgets) Regulations 2014 regulation 3)

18. Councils may only make direct payments for special educational provision specified in an EHC Plan and not for funding a place at a school or post-16 institution. (Special Educational Needs (Personal budgets) Regulations 2014 regulation 6(2))
19. Where a council refuses to make direct payment it must:
• inform the child’s parents in writing of its decision, providing the reasons and informing of the right to request a review;
• carry out a review of its decision, if requested to do so, considering any representations made by the child’s parent;
• inform the child’s parent in writing of the outcome of the review, giving reasons.

(Special Educational Needs (Personal budgets) Regulations 2014 regulation 7)

Complaint

20. The Council’s policy on corporate complaints says the Council:
• will acknowledge complaints within three working days;
• will respond at stage one within 20 working days. In exceptional circumstances due to complexity of the issues raised the Council may within 20 working days advise the complainant it will take longer to respond;
• if the complaint is escalated to stage two, the Council’s head of service or a director will respond within 20 working days. In exceptional circumstances when due to the complexity of the issues it will take more time to investigate, the Council will tell the complainant within the initial 20 working day period why it will take longer to investigate and when the complainant can expect the response.

What happened

Background

21. At the end of September 2022 Y’s school asked the tutoring agency (the Tutoring Agency) to arrange tuition for Y. The school said the Council had agreed to fund 25 hours of tutoring per week. Y’s parents asked the Council to gradually re-engage Y with education. From November 2022 Y started receiving six hours of tutoring a week.
22. Y turned 18 during the investigation of this complaint.

February 2023 to January 2024

23. Following Mr X’s appeal to the SEND Tribunal, at the beginning of February 2023 the Council issued a final EHC Plan for Y. No school was named in Section I. The Council included in Section F:
• 25 hours of one-to-one face to face tuition per week consisting of 15 hours per week of subject tuition with qualified teachers and ten hours per week with a learning support assistant;
• second responsible adult during teaching sessions;
• Multi-Disciplinary Team approach with regular input from all professionals involved with Y with meetings once a term for two hours;
• Speech and language therapy (SLT) input;
• Occupational therapy (OT) input.
24. During February, March and April 2023 Mr X extensively communicated with Y’s case officer (the Case Officer) about:
• amending Y’s final EHC Plan following the SEND Tribunal Order;
• delivery of special educational provision, including SLT and OT;
• Personal budget for Y.
25. From the evidence it seems there was no dispute about the content of Y’s EHC Plan as it was settled during the SEND Tribunal proceedings. The amendments to Y’s final EHC Plan which the Council made in the spring term were needed because of the errors during its drafting. The Council finally amended Y’s final EHC Plan in March 2023.
26. At the beginning of March 2023 Mr X told the Case Officer he could arrange provision from Section F of Y’s EHC Plan, as they did for OT, but needed the Council to give its consent and to confirm there would be no delays with accepting costs and paying.
27. In its response two days later the Case Officer advised Mr X to identify a provider for ten hours of learning support as the Council would be prepared to pay the provider directly or arrange a Personal budget for this provision.
28. Mr X asked for the Council’s policies and to explain how a Personal budget would work. He also asked the Case Officer to send a template of a direct payments agreement.
29. The Case Officer said he would discuss the matter with his manager as he had no experience of setting up Personal budgets. He could not send a direct payment agreement as he was not aware of this document.
30. From April 2023 the OT, who was at first privately commissioned by Mr X to assess and prepare a report for Y, started delivering OT provision included in Y’s EHC Plan. The Council funded this provision.
31. Mr X asked the Case Officer which other agencies offering individual tuition he could approach to supplement tutoring provided by the Tutoring Agency. This was because the Tutoring Agency could not deliver everything that was included in Y’s EHC Plan.
32. From mid-February 2023 the Case Officer was telling Mr X it would not fund Y’s instrumental lessons as this intervention was not part of Y’s EHC Plan.
33. At the beginning of June 2023 the Case Officer repeated the Council’s position on Y’s instrumental lessons. He told Mr X he could not find an appropriate service to deliver the life skills sessions for Y and asked Mr X to identify the service with the view of the Council funding it through a Personal budget.
34. In August 2023 SLT commissioned by the Council started communicating with Mr X about support for Y. From December 2023 to February 2024 the SLT assessed Y’s speech, language and communication skills. The report issued in February 2024 confirmed good development of Y’s speech and language skills. The SLT argued with the recommendation for a specific approach from the private SLT report, which was included in Section F of Y’s EHC Plan. Following discussion with Y, the SLT prepared a communication profile document which could be shared with people Y interacted with. The SLT stated there was no need for their further involvement.

February to June 2024

35. The Annual Review of Y’s EHC Plan took place at the beginning of May 2024. The Tutoring Agency confirmed Y had been receiving seven hours tutoring per week. No Multi-Disciplinary Team meetings took place. Y’s OT prepared a report for the review which confirmed their continuing involvement. During the review meeting Y’s parents raised concerns about the lack of SLT provision which have impacted Y’s communication with her tutors and the lack of other provision such as life skills. Y’s sleep difficulties were discussed and their impact on Y missing her tutoring sessions.

Complaint

36. Mr X complained to the Council at the end of January 2024 about non-delivery of the EOTAS package and non-delivery of the special educational provision included in Y’s EHC Plan. He also raised the issue of the Council’s failure to consider his requests for a Personal budget for Y.
37. The Council told Mr X it would respond in the third week of February.
38. Having received no response from the Council, in mid-March Mr X asked for his complaint to be considered at stage two. After another communication with the Council Mr X brought his complaint to us in the second week of May.
39. Over three weeks later the Council provided its stage two response to Mr X’s complaint. The Council said Mr X’s concerns had been discussed during the Annual Review of Y’s EHC Plan which took place at the beginning of May 2024. The Council said: “… the Local Authority have made best endeavours to identify a tutor to fulfil the requirements that are specified on the EHC Plan. I understand there have been issues with this sourcing the tutor, but there have been consistent tutors in place.” The Council confirmed some life skills had been provided for Y. It partially upheld Mr X’s complaint.

Analysis

Delivery of education and special educational provision

40. Following the SEND Tribunal decision the Council issued an EHC Plan for Y where it agreed to provide the EOTAS package. The Council included details of this package in Section F of Y’s EHC Plan.
41. As explained in paragraph 14 of this decision the Council has an absolute duty to ensure the child or young person receives the content of Section F of their EHC Plan. Councils’ best endeavours to arrange special educational provision are not enough to consider this duty carried out.
42. Through commissioning individual tutoring and OT for Y the Council ensured Y received some education and some of the extra support she needed. The Council failed, however, to ensure delivery of the learning support assistant’s sessions, SLT input as included in Section F of Y’s EHC Plan and Multi-Disciplinary team meetings. If, based on the SLT report of February 2024 the Council considered Section F of Y’s EHC Plan needed amending, it should have followed the right process. Until it happened, the Council had a duty to ensure delivery of the entirety of the Section F provision.
43. The Council failure to ensure delivery of the whole EOTAS package included in Y’s EHC Plan is fault. It caused injustice to Y and Mr X:
• Y – did not receive satisfactory, coordinated support as the professionals identified she needed. Although in February 2024, following Y’s assessment, SLT discharged her from the SLT services, having the SLT report and communication profile sooner would have supported Y’s communication with various professionals. Besides the Council should not have decided it would not deliver the SLT provision included in Y’s EHC Plan without amending the plan. The Multi-Disciplinary team approach would have ensured coordinated work when providing education to Y. The lack of learning support assistant’s sessions was detrimental to the development of Y’s life skills. Part of Y’s injustice is also uncertainty about how much the coordinated and full support for her in line with her EHC Plan would have impacted her ability to engage with the tutoring sessions.
• Mr X – was distressed about the incomplete support for Y. Mr X spent much time communicating with the Council and asking for help with either arranging provision or to guarantee funding for any provision arranged by him.
44. Y did not receive 15 hours of tutoring a week but I cannot say, even on the balance of probabilities, whether she would have been able to access more than seven hours commissioned by the Council. Even though the tutoring sessions mainly took place in the afternoons, as Mr X had asked, Y regularly was either late or did not attend.

Personal budget

45. Councils have a duty to provide parents with the conditions which must be met before direct payments may be made. When refusing direct payments they must explain in writing the reasons for their position and offer the right to review.
46. In the spring and summer terms of 2023 Mr X on many occasions asked the Council for the explanation on how a Personal budget for Y’s provision would work and for a direct payment template. Y’s Case Officer failed to explain the process and admitted the lack of experience with setting up Personal budgets.
47. The Council’s failings are fault. Staff’s lack of knowledge or experience should not affect the delivery of the Council’s services.
48. The Council’s fault caused injustice to Mr X, who was frustrated at not being given information on the way a Personal budget for Y would work. Mr X’s injustice was mitigated by the Council’s agreement for him to identify providers for some of the provision which Y was not receiving. When responding to Mr X, Y’s Case Officer advised him the Council would fund learning support assistant either by paying the provider directly or through direct payments to Mr X. At this stage I have no evidence Mr X followed this up. Although Mr X did not have details of how the Council would set up direct payments, he knew the process the Council followed when commissioning providers found by the parents. This is because the Council funded Y’s OT provision in this way.
49. I do not find fault in the Council’s refusal to fund instrumental lessons for Y through direct payments. The Council explained its reasons in writing and reviewed its decision. The Council followed the process we would expect.

Complaint handling

50. The Council failed to respond at stage one and significantly delayed its stage two response to Mr X’s complaint. It should have responded at stage one by the end of February 2024. It failed to respond. After Mr X’s request in mid-March, the Council provided its stage two response at the beginning of May 2024. This happened after much correspondence from Mr X and from us. The Council’s response did not address all the issues raised by Mr X.
51. The Council’s failings within its complaint handling are fault. They caused injustice to Mr X as he spent much time and trouble trying to get his concerns resolved. He was frustrated by the lack of accountability and the Council’s unwillingness to accept its failings.

Service improvement

52. In our final decision of 29 July 2024 reference number 23 011 577 we recommended: “The Council will review its systems and practices relating to how it deals with personal budgets (PBs), including where a child is in Education other than at school (EOTAS). The Council should refer to the Ombudsman’s focus report, “Parent power: learning from complaints about personal budgets”. It should provide the Ombudsman with a short report setting out what action it has taken to ensure a similar situation does not happen again.” The Council also agreed to provide staff training to ensure understanding of the legal framework and obligations around personal budgets (direct payments).
53. The Council provided us with the evidence it had introduced changes in its Personal budget processes through creating templates and staff training. The Council also confirmed its Personal budget policy would be developed by December 2024. We will monitor the effectiveness of the Council’s improvements through our casework.

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Agreed action

54. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mr X and Y for the injustice caused to them by the faults identified. 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 the apology I have recommended;
• pay Y £4,400 to recognise the injustice caused to Y for non-delivery of the whole EOTAS package included in Section F of her EHC Plan for four terms from the end of February 2023 until the beginning of June 2024;
• pay Mr X £500 to recognise the distress caused to him by the Council’s failings and £250 for his time and trouble when complaining.

The total the Council will pay is £4,400 to Y and £750 to Mr X.

The Council will provide the evidence that this has happened.

55. We also recommend the Council within three months of the final decision review its handling of the SEND complaints. The Council will consider how to ensure all complaints are responded to at stage one within the timescales set up in the Council’s policy. The Council will implement monitoring mechanisms to tell complainants of any delays caused by the complexity of the investigated matters at stage two of the complaint procedure. The Council will provide the evidence that this has happened.
56. We will monitor the effectiveness of the service improvements to the Council’s Personal budget process as listed in the Council’s response to our recommendations in the complaint reference number 23 011 577.

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Final decision

57. I uphold this complaint. The Council was at fault for not ensuring the whole Education Otherwise than at School package included in Y’s EHC Plan was delivered and for the failings when responding to Mr X’s request for a Personal budget. The Council also failed when handling Mr X’s complaint. The Council’s fault caused injustice to Y and Mr X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman