Summary: Mrs X complained the Council did not follow its own process when it refused her application for a personal budget to find tuition for her son Y. She said the Council then failed to reassess her application after it was instructed to do so and did not issue an amended Education Health and Care Plan in line with a Tribunal order. She said the Council’s actions have caused her stress and Y has lost out on his education and development. The Council was at fault when it refused Mrs X’s personal budget application without explanation and delayed providing Y with an amended EHC Plan. The Council took action to address its failure to properly consider Mrs X’s application and this fault is already remedied. The Council should remind its staff of the importance of carrying out recommendations within a timely manner to address the fault caused by the delay.

The complaint

1. Mrs X complains the Council:
1. failed to follow its own process when it rejected her application for a personal budget for her son Y to receive at home tuition after he was unable to attend school due to anxiety;
2. failed to properly consider her application for a personal budget after it was told to do so by an independent investigator; and
3. did not issue an amended EHC Plan in line with Tribunal orders.
2. She said this situation has caused her stress and caused Y to lose out on education and development.

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The Ombudsman’s role and powers

3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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 our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

7. I made enquiries of the Council and considered the information it provided, this included Mrs X’s complaint form, Y’s EHC Plan, the Tribunal decision, the Council’s personal budget and direct payments policy,
8. I wrote to Mrs X and the Council with my draft decision. I considered their comments before I made the final decision.

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What I found

Council’s complaints process

9. The Council has a three stage complaints process:
• Stage 1 - Investigating the complaint. The Council should investigate and provide a response within 10 working days.
• Stage 2 - If the complainant is unhappy they can request a review. The Council should complete the review within 30 working days.
• Stage 3 - The complainant can ask for a further review with an independent panel if they remain unhappy with the outcome.

Alternative provision

10. The Education Act 1996 says that if a child of compulsory school age cannot attend school for “reasons of illness, exclusion from school or otherwise” the local authority must arrange suitable education for the child.
11. The duty applies to all children of compulsory school age resident in the local authority area, regardless of whether they are on a school roll or the type of school they attend.
12. “Ensuring a good education for children who cannot attend school because of health needs,” states that where full-time education is not possible for a child because of poor mental or physical health, local authorities must provide part-time education on a basis that is in the child’s best interests
13. The teaching must be of a similar quality to that which the child would receive in school, based on a broad and balanced curriculum. Where a local authority contracts out the service, it remains accountable for the quality of education. Local authorities must also regularly review what is being offered and adjust the number of teaching hours if necessary.

Special educational needs

14. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. This 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 education. Only the tribunal can do this.
15. Local authorities have a duty to arrange for the special educational provision set out in an EHC Plan to be made available to the child in question.
16. If the Council is ordered by SEND tribunal to re-assess the EHC Plan, it should write to the relevant parties within 2 weeks to confirm it will make the assessment and send the amended plan within 5 weeks of tribunal making the order.

Personal budget and Direct payments policy

17. Young people and parents can request a personal budget when a local authority has confirmed it will prepare an EHC Plan. A personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC Plan where the parent or young person is involved in securing the provision.
18. A local authority that maintains an EHC Plan must prepare a personal budget if asked to do by the young person or their parents.
19. The Council can provide direct payments to the young person or their family to use towards their education or health needs. A direct payment is one of several ways that a personal budget can be managed.
20. The Council must deliver its decision in writing and set out the reason for its decisions clearly.
21. Applicants have a right of appeal if:
• an aspect of the provision has not been accounted for in the personal budget
• a personal budget has not been offered
• the monies offered are not felt to be sufficient

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Mrs X’s complaint

22. Mrs X’s son Y is autistic and suffers with anxiety. His 2020 EHC Plan stated he requires amongst other things:
• a highly personalised curriculum delivered in small groups
• an environment where he can develop a trusting relationship with adults
• a predictable and consistent routine that is responsive to Y’s needs
23. He was receiving alternative provision in a specialised setting until 17 July 2020 when the Council’s contract with the education provider ended. Mrs X says the Council only gave her one week’s notice Y’s provision was stopping.
24. On 30 July 2020, the Council issued Y’s EHC Plan listing a mainstream school as Y’s education provider.
25. Mrs X applied for a personal budget in August 2020 to enable her to arrange home tuition for Y. Mrs X says she did not receive a formal response from the Council. Instead, the Council contacted Mrs X to offer Y a place at the mainstream school. Mrs X was unhappy with this and appealed the contents of the Plan at SEND tribunal. We cannot investigate matters which took place at tribunal.
26. On 24 August 2020 Mrs X complained to the Council. She said the Council was unprofessional and rejected her personal budget application without explanation.
27. The Council said a panel of professionals including an educational psychologist considered Mrs X’s personal budget application but did not explain why it rejected her application.
28. Mrs X was unhappy with the Council’s response. She said the Council failed to refer her to the next stage of its complaints process and asked to escalate her complaint. She also asked to reapply for the personal budget.
29. The Council escalated the complaint to Stage 2. The reviewing officer (RO) spoke with the Council and Mrs X, assessed Y’s EHC Plan and completed the investigation on 7 December 2020.
30. The RO concluded the Council did not adequately explain its decision to refuse Mrs X a personal budget. The RO recommended the Council re-assess Mrs X’s application and update its personal budget and direct payments policy to provide more clarity around its decisions regarding personal budgets.
31. On 22 January 2021, the Council told Mrs X it accepted the outcome of the Stage 2 review and would be in touch when it had carried out the RO’s recommendations.
32. Tribunal proceedings concluded on 2 February 2021. On 3 March 2021 the tribunal instructed the Council to remove the school named in Y’s EHC Plan and told the Council to work with Mrs X and Y to produce a bespoke package of provision suited to Y’s needs. The tribunal also told the Council to issue an amended EHC Plan.
33. On 1 April 2021 after Mrs X had contacted the Council several times, the Council told Mrs X it had commissioned an education provider to administer 15 hours of person-centred provision to Y. The Council issued Y’s amended EHC Plan on 12 April 2021.
34. Mrs X brought her complaint to the Ombudsman shortly after this as she was unhappy with the delay in the Council issuing the plan and its management of her personal budget application. She also remained unhappy that Y was still not receiving provision.
35. On 21 April 2021, the Council reassessed Mrs X’s personal budget application and contacted her with a suggested amount for direct payments. The Council says it has not received a response from Mrs X.
36. In response to our enquiries the Council has agreed it delayed producing the amended EHC Plan due to an administration error. The Council has also explained it delayed carrying out the personal budget reassessment until after the tribunal concluded.

Findings

Personal budget

37. Mrs X remains unhappy the Council rejected her personal budget application without providing an explanation for its decision. The Council was required to issue a clear decision explaining its rationale for rejecting Mrs X’s application and as the reviewing officer found, it did not follow this process when it rejected Mrs X’s application. This is fault. Mrs X was left with a sense of uncertainty and had to chase the Council for an explanation, which likely caused her inconvenience. However, following the reviewing officer’s investigation the Council has updated its policy and is aware that it needs to follow the correct process in future.
    This fault is therefore already remedied.
38. Mrs X also complains the Council failed to reassess her personal budget application after it was told to do so by the reviewing officer. The evidence shows the Council went on to assess Mrs X’s application following the tribunal and contacted Mrs X with an offer of a direct payment. I have not seen evidence of Mrs X accepting or declining the Council’s offer. If Mrs X is unhappy with the Council’s offer it is open to her to appeal the decision. The Ombudsman cannot investigate complaint points where the complainant had appeal rights. There is no fault in the Council’s actions.

Delay in issuing EHC Plan/loss of provision

39. Mrs X is unhappy the Council delayed producing an amended EHC plan following tribunal. The Council was required to provide an amended plan within five weeks of the tribunal’s order. The Council delivered the plan 5 days after the deadline. Whilst I can imagine Mrs X did not welcome this, this is not a significant delay and I stop short of calling this fault. Even if I were to find fault here, I cannot know whether this has caused an injustice to Y.

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Agreed action

40. Within two months of the date of my final decision the Council has agreed to provide evidence showing it has reminded its staff of the importance of carrying out recommendations within a timely manner.

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Final decision

41. The Council was at fault for how it managed Mrs X’s personal budget application and for delaying producing an amended EHC Plan for Y. I have made recommendations for how the Council should remedy the injustice caused to Mrs X and Y. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman