Summary: There were delays in the way the Council dealt with requests in relation to the special educational needs of Mrs X’s children and in the complaint process. This caused unnecessary inconvenience, time and trouble to Mrs X. Recommendations for an apology and a payment to acknowledge the impact of the fault are made.

The complaint

1. Mrs X is the mother of two children, whom I shall refer to as Y and Z. Y is older than Z. Ms X complains on her own behalf and on behalf of Y and Z about Council decisions in relation to her children’s special educational needs (SEN) and education generally. Mrs X complains about:
• Gross misconduct of Council staff including:
1. Confidentiality breaches of another child’s data
2. Poor communication
3. Inadequate training
4. Inaccurate and untruthful advice
• Failure to meet legal deadlines in the process of statutory assessment for an Education, Health and Care Plan and during appeals to the Tribunal
• Failure to respond to requests for personal budgets
• Failure to provide an appropriate remedy for complaints the Council has upheld
• Requiring her to pursue a remedy through a compensation claim rather than through the complaint process.
2. Mrs X says as a result of the alleged fault:
• Y and Z have missed out on education and specialist support
• She has been put to unreasonable time and trouble chasing the Council and correcting inaccurate information
• She is concerned her own children’s data could be breached.

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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 an injustice, we may suggest a remedy. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council.

(Local Government Act 1974, section 24A(6), as amended)

4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We cannot investigate a complaint if someone has appealed to a tribunal. This applies even if the tribunal or court has not provided a complete remedy for all the injustice claimed. The lack of an available financial remedy from the Tribunal does not mean the Ombudsman is empowered to investigate. The Court has noted that while this creates a situation where loss has been suffered and no remedy for the loss will be provided, Parliament must have contemplated that such situations would arise when it set out the Ombudsman’s powers. (Local Government Act 1974, section 26(6)(a), as amended; (R (on the application of ER) v the Commissioner for Local Administration, 2014); R v the Commissioner for Local Administration ex parte PH, 1999)
7. Where there is a right of appeal to the Tribunal about a decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’ and outside the Ombudsman’s jurisdiction. (R (on the application of ER) v the Commissioner for Local Administration, 2014) Where a Council issues an Education, Health and Care Plan and fails to name a specific school, and also fails to meet its duty to provide alternative education for the child, the Ombudsman cannot provide a remedy if the parents have appealed to SEND. The decision (failing to name a school) and the consequence (failing to provide education) are ‘inextricably linked’.
8. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
9. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
10. 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)

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How I considered this complaint

11. I have considered information provided by the Council and Mrs X including the education files for both children, correspondence between the parties and the tribunal orders. I have also spoken to Mrs X by telephone.
12. I have considered relevant law and statutory guidance including:
• The Education Act 1996
• The Children and Families Act 2014
• The SEN Code of Practice, 2015
13. I have considered the Ombudsman’s Guidance on Remedies.
14. I have written to Mrs X and the Council with my draft decision and given them an opportunity to comment.
15. 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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Parts of the complaint that I did not investigate

16. I have not investigated whether there was a data breach by Council staff or whether the Council took appropriate remedial action in relation to any staff who breached confidentiality of other children. Data breaches are more appropriately considered by the Information Commissioner and the Ombudsman cannot investigate personnel issues. By personnel issues I mean matters which relate to the employer/employee relationship between the Council and its staff including any disciplinary action taken.
17. I have not investigated complaints about delays in the legal process. Mrs X appealed to SEND and any failure to meet timescales or provide evidence was a matter for SEND’s jurisdiction. The Ombudsman can consider processes only up to the point a decision carrying an appeal right is made.
18. I have not investigated whether the placement named by the Council in Y and Z’s Education, Health and Care Plans was an appropriate placement or whether the Council should have provided alternative education while the appeal was pending. Mrs X appealed the decision to name a type of placement (mainstream school) to SEND. The Courts have found that the Ombudsman cannot provide a remedy in these circumstances because the decision (naming a type of school) and the consequences of it (Y and Z not receiving full-time education) are ‘inextricably linked’.

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What I found

Relevant law and guidance

19. Under Section 7 of the Education Act 1996 parents have the right to home educate a child with SEN. This is acknowledged in the SEN Code or Practice (‘The Code’).
20. Where the Council agrees that home education is the right provision for a child with an EHC plan the plan should make clear the child will be educated at home. If it does then the Council under s.42(2) of the Children and Families Act 2014 must arrange the special educational provision in the plan, working with the parents.
21. Where the EHC plan names a school or a type of school where the child will be educated, and the parents decide to educate at home, the local authority is not under a duty to make the special educational provision set out in the plan provided it is satisfied the arrangements made by parents are suitable. The Council should name the type of school that would be suitable in the plan, but state parents have made their own arrangements. The Council has discretion to provide funding or support but no duty to do so. The Code says Councils ‘should’ fund the SEN needs of home educated children where it is appropriate to do so. (paragraph 10.30)
22. If the Council considers that a child of compulsory school age is not receiving suitable education it is required to intervene through the school attendance order framework. (The Code, paragraph 10.36).
23. Regulation 44 of the SEN and Disability Regulations 2014 says that the time limit for issuing an EHC plan after a Tribunal order requiring the Council to make an assessment is fourteen weeks.
24. A SEN personal budget is an amount of money identified by a council to deliver provision set out in an EHC plan. The Council can identify elements of the provision which can be made by a direct payment, which is money provided to the parent to commission support themselves. Under Regulation 4 of the SEN (Personal Budget) Regulations parents can request a personal budget and direct payments when:
• The draft EHC plan is being prepared
• The draft plan is being reviewed, or
• Where there is a reassessment.

Chronology of events

25. Both Y and Z have special educational needs. Y attended school for a short time in reception year, but Mrs X withdrew Y from school as she felt Y could not manage a school environment. Z has never attended school. Mrs X was electively home educating both children before 2017.
26. In 2017 Mrs X asked the Council to carry out an education, health and care (EHC) needs assessment for Y and X under section 36 Children and Families Act 2014. In September 2017 the Council refused to assess the children. Mrs X appealed this decision to Tribunal. The Council noted that it was unclear what benefit an EHC needs assessment would bring to Mrs X given both children were home educated. By electively home educating Mrs X had taken on responsibility for the children’s education, the Council was not responsible for making SEN provision for Y and Z, and the Council did not usually provide any support services to home educated children.
27. Mrs X wanted the assessment in case the children returned to formal education in future.
28. In January 2018 SEND ordered the Council to carry out the assessment for both children.
29. The Council had fourteen weeks to complete the assessment following the tribunal decision but mistakenly told Mrs X it had twenty weeks.
30. The Council obtained advice required for the assessment. The health advice did not say either child was medically unfit to attend school.
31. The Council decided to issue an EHC plan for both children and sent Mrs X draft plans in March 2018. Draft EHC plans must not state the placement the Council intends to name but are to be left blank so parents can express a preference.
32. Mrs X requested the placement of Education Otherwise than at School (EOTAS) with provision to be made via a personal budget from which Mrs X would employ academic tutors and pay for therapy and activities for the children. Mrs X told the Council she was only home educating because schools could not meet her children’s needs due to their learning styles. Mrs X said she had taken legal advice that the children were entitled to funding in the form of personal budgets if the children’s needs could not be met in a school.
33. The Council asked Mrs X to provide costings for the personal budget limited to additional provision to meet SEN needs over and above that made by elective home education.
34. The Council’s panel considered the request for EOTAS personal budgets in April, but refused this request. It said all the education provision outlined in the plan could be delivered within an appropriate school environment. The Council issued the final plans naming local authority maintained school provision as the placement but noted parents had elected to home educate under section 7 Education Act 1996. The Council did not communicate this decision to Mrs X.
35. Mrs X appealed to SEND about the content of the EHC plan in May requesting EOTAS be named as the placement instead of a type of school and elective home education.
36. The Council met Mrs X in June 2018 and agreed to reconsider her request for a personal budget as a way of resolving the appeal. The Council noted the personal budget was less than the cost of a school place with SEN support, but there was a risk Mrs X might try and increase the budget at a later point.
37. The Council’s panel decided that the Council should be cautious about what it agreed because it considered needs could be met in a school and so EOTAS was not applicable. The Council was willing to consider a small personal budget to supplement elective home education given the children’s additional needs. This would be limited to the additional costs of support to meet SEN. The panel said the Council would not expect to provide teaching or tutors where a child was electively home educated. The Council decided it was willing to allocate an annual budget of £5700 for each child for their needs over and above a home educated child who did not have SEN. This would cover five hours per week one to one support.
38. In August, to resolve the appeal, the Council decided to increase the budget for each child to include occupational therapy provision to support elective home education.
39. In September 2018 Mrs X refers to evidence from mental health services that Y was not able to attend school on medical grounds.
40. At a SEND hearing in September the Council’s view was that EOTAS was not suitable as the children’s needs could be met in a school. As Mrs X was home educating the Council had not consulted schools. The Tribunal advised it needed to do so and adjourned the hearing until November 2018.
41. The Council then identified a school it said could meet the children’s needs in future.
42. By the time of the second SEND hearing the Council had conceded that EOTAS was appropriate, at least for the current time as Y was not fit to attend school and both children would need a long transition back into formal education. The only matters left for SEND to deal with was the amount of EOTAS provision the Council should provide. SEND decided that the children should receive more academic tuition than Mrs X had requested but fewer activities / therapeutic interventions.
43. The Council had five weeks to implement the Tribunal order. The amended final EHC plans were due by 4 January 2019.
44. The Council met Mrs X in December 2018 and explained that there had been a valid difference of views about the placement named in the plans and the Tribunal had needed to resolve this disagreement. The Council confirmed the new personal budget funding would be available from 4 January 2019. It said there may be a delay in paying the funds and if so the funds would be backdated to 4 January.
45. The Council issued the Plans on 15 January. Mrs X had some corrections to the Plans which the Council included and it reissued them in March 2019.

Complaint chronology

46. Mrs X made a formal complaint on 12 April 2018 that the Council had failed to issue the EHC plans and make a decision on the personal budget request and had ignored her last three emails.
47. Mrs X made a further complaint in April that the final EHC plans were not quantified and specified in relation to the type or provision a school would provide were the children to attend one. The Council said as the children were electively home educated it did not need to provide more detail and Mrs X had never requested a specific school.
48. The Council held a complaint meeting with Mrs X on 8 June 2018 and summarised the complaint as about:
• Timeliness of EHC plans
• Lack of response to personal budget request
• Concerns around communication by SEN officers.
49. The Council provided a written response to the complaint on 8 August. It upheld:
• That the Council had given the wrong time period for completing EHC plans to Mrs X, after an appeal the assessment should have been completed within fourteen not twenty weeks.
• Mrs X’s complaints about the professionalism of an officer and incorrect advice that the Council would not go to Tribunal.
• Delay in issuing the EHC plans.
• That while the Council had considered and refused the request for a personal budget in April, it had not communicated its reasons or decision to Mrs X. The Council would reconsider the application.
• There was poor communication by an officer who did not respond to phone calls.
50. The Council said it had taken action about the conduct of an officer but could not provide any further details about this due to the employee’s right to confidentiality.
51. In October 2018 Mrs X wrote to the Council’s legal department saying she wanted to make a ‘compensation claim’. This related to the same complaint issues as previously investigated but she raised some new issues which were:
• Failing to meet legal deadlines in the tribunal process including providing tribunal bundles
• A confidentiality breach by an officer about another child which made Mrs X concerned officers could speak to other families about her child;
• That she had spent two thousand hours researching the law to challenge the Council about their practices and timescales about the EHC process;
• That communication problems had continued after the stage one complaints were upheld;
• That she wanted ‘compensation’ for the complaints upheld at stage one to acknowledge the time and distress caused.
52. A stage two investigation report was not completed until May 2019 after the case was first referred to the Ombudsman. This did not address ‘compensation’ but confirmed the previous upheld complaints and also found some delay in processing the personal budgets in August 2018. The report said staff had been reminded about confidentiality but the Council could not share what action it took against individual officers. No further confidentiality breaches had occurred.
53. The Council said the SEN service had been under a vast amount of pressure to meet deadlines and this was in part due to staff turnover. The Council found there had been poor communication due to pressures and workloads.
54. The Council’s view on the stage two investigation was that the complaint about confidentiality breaches was ‘unresolvable’. It said a second officer denied poor communication, being rude at the Tribunal hearing, or a failure to process personal budget paperwork. There was delay in processing the additional payment in August but this was due to a different team responsible for making the payments.
55. The Council advised it would make service improvements to prevent recurrence of the issues that had been upheld.
56. The Council’s legal team contacted Ms X for more information about her ‘compensation claim’. With regard to Ms X’s complaints about the legal process the Council said it could not investigate these while the Tribunal was ongoing.
57. The Council told me that where someone claims ‘compensation’ it is appropriate for this to be dealt with by its legal team because the evidence relating to causation and personal injury is much higher. Given Mrs X stated she wanted compensation she was advised to go through the legal process.

Analysis

58. As stated above I will not investigate the Council’s conduct during the Tribunal process. Faults or delays in the tribunal process are within the remit of SEND to remedy, it is not for the Ombudsman to comment on the conduct of legal action.
59. The Council has accepted concerns about a particular member of staff around confidentiality of data. It has provided guidance to staff. The Council is correct to say it would be inappropriate to share any details of disciplinary action taken. The Ombudsman does not become involved in personnel decisions taken by the Council as an employer. When the Council said this part of the complaint was unresolvable it meant it could not share any further information about action taken.
60. I will not provide a remedy for Mrs X’s concerns that her own child’s data may be breached in future. The role of the Ombudsman is to remedy past fault that has caused injustice to an individual. The Ombudsman does not provide financial remedies for a potential future injustice which has not yet happened.
61. The Council said a complaint about a second officer could not be resolved. This does not mean the complaint investigation has not been completed, it means the Council could not reach a finding as it was effectively one person’s word against another. Similarly, the Ombudsman would not be able to reach a finding, and in relation to conduct at a tribunal hearing this would be outside our jurisdiction.
62. The Council received the Tribunal decision to complete EHC assessments on 9 January 2018, so any EHC plans were due within fourteen weeks (by mid-April). The plans were issued on 24 April, so there was a delay of one week.
63. Following the second appeal about the content of the plans, the Council was eleven days late issuing the plans. However, the Council did arrange for the increased personal budgets to be backdated to 4 January, the last date the plans were due, so this did not cause an injustice.
64. The five week period to implement a Tribunal order is a maximum and the Ombudsman would expect Councils to put provision in place as soon as possible, however given the Christmas period and that there was a process to request and release extra funding, it was understandable that the Council utilised the full time period.
65. The Council has acknowledged a failure to explain its decision to refuse the personal budget in April 2018. While it was fault not to provide a decision and give reasons, I cannot say it was fault for the Council not to provide the budget at that stage. The Council’s view was that EOTAS was not suitable as the children’s needs could be met in a school. This decision carried a right of appeal which Mrs X has used. The Ombudsman is therefore barred from considering it.
66. In June 2018 the Council changed its mind and agreed to provide a personal budget. This was very much in the context of trying to resolve the situation without incurring the expense and time involved in an appeal. Again, I cannot comment on the decision as this is inextricably linked to the legal proceedings.
67. The Council’s view was the direct payment was to support elective home education under Section 7 Education Act not EOTAS named in an EHC plan via Part 61 of the Children and Families Act.
68. In August, the Council agreed to increase the budget to include occupational therapy. The Council has identified there was a month’s delay in the request for the budget being processed and funds being made available. It acknowledges this was fault. However, the figures I have seen suggest that Mrs X did receive the personal budget in a lump sum for a year’s provision. The records show the one to one support was paid from June 2018 and the occupational therapy from August. So while there was delay in the funds being released, Mrs X did not lose out financially.
69. There was a further delay in January 2019 issuing the plans but this did not cause injustice as the personal budget was backdated to 4 January.
70. While Mrs X wrote to the Council’s legal team, it is apparent she was not claiming ‘compensation’ for personal injury or any similar civil claim. She was in effect asking for a financial remedy for the parts of her complaint that had been upheld. As the Council has acknowledged it can deal with this via its complaint process. I find the Council should have recognised that this was a request for a financial remedy in a complaint and not a separate legal action.
71. I also find that there was delay in the complaint process. While I acknowledged Mrs X added new complaint issues between April and August 2018, the stage two was not completed until May 2019.
72. Mrs X claims her children missed out on education as a result of the Council’s decision not to agree EOTAS earlier. I cannot provide a remedy for any alleged injustice for this part of Mrs X’s complaint because it is inextricably linked to the matters decided via the appeal process. The Council was entitled to take a different view that the children could be educated in a school and to name a type of school in the EHC plans. In doing so it was not required to fund any SEN provision to support home education. The Council was clear that it did not support EOTAS and the personal budget it was providing was to support elective home education. It was for the Tribunal process to resolve whether Y and Z could attend school. That the Tribunal later found in Ms X’s favour does not mean it was wrong for the Council to ask the Tribunal to determine the disagreement. It is clear even if the Council had identified school places sooner that Mrs X would not have agreed to her children attending school during the period the appeal was pending.
73. In summary there was fault by the Council:
• around slow responses to communications from Mrs X
• in failing to explain why it had rejected a request for direct payments in April 2018
• in minor delays processing direct payments to support home education in 2018
• in minor delay issuing EHC plans in April 2018 and January 2019
• in some inaccurate advice about the Council’s intention to defend the appeal
• around confidentiality issues about other children’s data
• of delay in the complaint process
• in failing to consider whether a distress and time and trouble payment was appropriate
74. These faults caused Mrs X some additional time and trouble chasing the Council. However, there is no causal link between these errors and a loss of education and support to Mrs X’s children.

Agreed action

75. The Council has already apologised for some of the faults identified and put in place actions and service improvements. Within four weeks of my final decision the Council will provide a further apology to Mrs X for the additional fault I have identified.
76. Within four weeks of my final decision the Council will pay Mrs X £500 for the avoidable distress and inconvenience caused by the faults in the SEN process and in the complaint handling of her children’s cases.

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Final decision

77. I have completed my investigation. There were delays in the way the Council dealt with requests in relation to the special educational needs of Mrs X’s children and in the complaint process. This caused unnecessary inconvenience, time and trouble to Mrs X. Recommendations for an apology and a payment to
78. 
    acknowledge the impact of the fault are made. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman