Summary: Mr X complained the Council did not take appropriate action following his report of safeguarding concerns at his child, Y’s, school. He removed Y from the school but says the Council delayed in arranging an alternative placement and setting up an agreed interim direct payment arrangement for home tuition. This meant Y missed out on education and caused him financial loss and distress. The Council is at fault. It did not follow correct procedures which led to Y missing out on a half term’s education and delays. The Council has agreed to pay Mr X £1000 to use for Y’s educational benefit, £300 for the frustration and distress caused and review its procedures.

The complaint

1. Mr X complained the Council did not take appropriate action following his report of safeguarding concerns at his child, Y’s, school. He removed Y from the school but says the Council delayed in arranging an alternative placement, during which time Y was without education. Because of the delay, the Council agreed to fund home education but delayed in providing the funding. This caused Mr X financial loss and him and his family distress. Mr X wants the Council to explain why it did not act following his report of safeguarding concerns, improve its procedures and provide him with financial compensation for delays, incurred costs and distress caused.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. 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)
5. 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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How I considered this complaint

6. I read Mr X’s complaint and spoke with him about it on the phone. I also considered information he sent me.
7. I made enquiries of the Council and considered the information it sent me.
8. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making my final decision.

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What I found

Background information

Education, Health and Care Plans

9. Some children and young people with special educational needs (SEN) and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. The council has a duty to deliver provision set out in an EHC Plan.
10. The council must review an EHC Plan at least every 12 months. It can decide to review it earlier, if a parent or young person requests this, or if the child’s needs or circumstances change and are no longer accurately described in the Plan.
11. Following a review meeting, the council must decide whether to amend or cease a plan within four weeks. If it agrees to amend the plan, it must issue the final amended EHC Plan within 8 weeks of the making this decision.

Personal budgets and direct payments

12. If requested by a parent or young person, the council must consider preparing a personal budget for the child. The personal budget is the amount of money needed to cover the cost of making the special educational provision specified in the EHC Plan. A personal budget is required if a parent or young person wish to be involved in securing all or part of the provision in the plan.
13. Regulations say a parent or young person can request a personal budget either:
• Whilst an EHC Plan is being prepared; or
• Whilst an EHC Plan is being reviewed or re-assessed.
14. The council must consider each request for a personal budget on merits. It must prepare a personal budget in each case, unless doing so would have an adverse impact on services provided for other EHC Plan holders or would not be an efficient use of council resources.
15. Once a child has a personal budget, the council can identify elements of the provision which can be made via a direct payment. Direct payments are cash payments made directly to a child’s parent or young person, allowing them to arrange and pay for the provision themselves.

Ombudsman guidance

16. The Local Government and Social Care Ombudsman has produced guidance for councils on the principles of good administrative practice. This document outlines six core principles of good administration which includes the need to be open and accountable. Councils can help achieve this by keeping proper and appropriate records giving clear reasons for decisions made.

What happened

17. Mr X’s child, Y, has multiple health conditions and special educational needs. In 2018, Y had an EHC Plan and attended the named school in the plan.
18. In June 2018, Mr X complained to the school. He said its staff had committed data theft and invaded Y’s privacy. The school investigated his concerns and told Mr X of its findings.
19. In July 2018, Mr X told the Council about the incident and asked the Council to further investigate his concerns. He said he was unhappy with the school and did not want Y’s placement there to continue. He removed Y from the school and asked the Council to find Y an alternative school placement.
20. The Council contacted the school who said that despite the incident, it could still meet Y’s needs. However, the Council accepted Mr X’s view there had been an irretrievable breakdown in the relationship between the parents and the school. It agreed to Mr X’s request to find Y an alternative placement and agreed to arrange home tuition in the interim. Despite this change in circumstances, it did not arrange a review of Y’s EHC Plan.
21. In October 2018, the Council consulted with seven schools, but did not find a suitable placement. Mr X was unhappy the Council had not yet found Y a suitable alternative school and Y was still not receiving any home tuition. He told the Council he wanted to arrange Y’s provision himself, if the Council agreed to fund it. The Council said it agreed to this request and would fund the tuition using direct payments, however there are no records to support this decision.
22. Mr X identified appropriate services and Y started home tuition in November.
23. In January 2019, Mr X contacted the Council. He said it had failed to set up the direct payments and some of the education providers the Council had agreed to pay directly had not been paid. He also said Y’s EHC Plan needed updating.
24. In February 2019, the Council reviewed and amended Y’s EHC Plan. It sent Mr X a draft of the amended plan.
25. In March 2019, the Council prepared Y’s personal budget and agreed to Mr X’s request for direct payments. It issued the final amended EHC Plan.
26. In April 2019, Mr X formally complained to the Council. He complained:
• The Council had not appropriately investigated after he told it about the incident at the school in June 2018;
• Despite agreeing to do so in July 2018, the Council had failed to arrange suitable education for Y, which meant Mr X had to arrange a bespoke education package for him at home;
• There was delay in setting up the direct payments to fund the home tuition, which had led to financial loss.
27. During April 2019, the Council consulted with a further eight schools to try and identify a suitable school for Y.
28. In May 2019, the Council upheld Mr X’s complaint. It said there was no evidence the Council had followed up on his concerns about the alleged data theft at the school. It said it was still in the process of finding Y a suitable school. It said the direct payment arrangements were now in place and agreed to refund Mr X’s costs for educational resources. It apologised to him for the poor service and delays.
29. Mr X escalated his complaint to stage 2. He remained dissatisfied about two points:
• He said the Council had not investigated his allegations against the school in June 2018, or adequately explained why it had not done so;
• The direct payments were still not in place and the Council had not refunded him the costs of the educational resources.
30. The Council said it had upheld his complaint at stage 1 as it had not followed correct procedure to inform senior managers or follow up on his concerns in June 2018. It apologised for this and said it had taken action to improve its services. It said it had now set up the direct payments to start at the beginning of June and it had refunded him the costs for the educational resources. It apologised again for poor service and delays.
31. Mr X remained dissatisfied with the Council’s actions and brought his complaint to us.
32. In its response to our enquiries the Council said it had upheld his complaint. It had apologised to him, refunded the costs for educational resources and made improvements to its services. It felt these were appropriate actions in response to his complaint. As part of its response, it said it had been unable to find any records related to its consideration of Mr X’s concerns or decision making in June/July 2018 or the decision to agree to fund Y’s home education in October 2018.
33. Y started at a new school in September 2019.

Analysis

34. The Council has been unable to provide the Ombudsman with any records related to Mr X’s report of the incident at school or the Council’s consideration of his concerns. As there are no records, I cannot know how the Council considered his concerns or whether it did so appropriately. The failure to keep proper and appropriate records is poor administrative practice and is fault. The Council upheld this part of his complaint and said it did not act appropriately to follow up his concerns. I do not feel further consideration of this point can add anything to this finding. The Council has apologised to Mr X which is an appropriate remedy. It said it has taken action to improve its services.
35. The Council supported Mr X’s decision to remove Y from the school and agreed to find Y an alternative placement. This was a significant change in circumstances, as Y was no longer attending the school named in their EHC Plan. Despite this, the Council did not arrange an early review of Y’s Plan. This is fault. Because it did not review Y’s Plan, the Council was not bound by the statutory timescales to agree and issue an amended EHC Plan after a review meeting, and the delays caused Mr X frustration and distress.
36. The Council agreed in July 2018 that the school was no longer suitable for Y. By September, the Council had not identified an alternative school placement and did not arrange home tuition for Y. That was fault, which meant Y missed out on the educational provision and support laid out in their EHC Plan between September and November 2018.
37. The Council agreed to find Y an alternative placement in July 2018 but did not consult with any schools until October. None of the schools consulted were suitable, but it then further delayed in contacting other schools and did not find a suitable school until May 2019. This delay is fault which caused Mr X and Y ongoing frustration and uncertainty. However, from November 2018 onwards, Y was receiving education at home in line with their EHC Plan. I cannot say the continued delay caused Y an ongoing injustice from November onwards.
38. In October, Mr X requested the Council provide direct payments to allow him to secure Y’s provision, but the Council did not consider this request as part of a review of Y’s EHC Plan. It said it agreed to his request but there is no documentation related to this decision. This lack of records is poor administrative practice. The law says a request for a personal budget and direct payments can only be made whilst an EHC Plan is being prepared or during a review of a Plan. By agreeing to his request outside of these conditions, the Council did not follow the correct procedures. It did not review Y’s EHC Plan, prepare a personal budget or agree which elements of provision could be secured with a direct payment. This is fault. The failure to follow the correct processes contributed to subsequent confusion and delay.
39. The Council said it would fund the home tuition from November 2018, but the direct payments did not start until June 2019. This was a seven-month delay which caused Mr X financial loss, frustration and distress. The Council accepted the delay had a significant financial impact but has since settled the outstanding payments and refunded Mr X for educational resources. This is an appropriate action to remedy the financial loss. There is no ongoing financial loss caused to Mr X.
40. In deciding the recommended action below, I have consulted the Ombudsman’s guidance on remedies. Any agreed payments are outside of any provision allocated for Y’s EHC Plan.

Agreed action

41. Within one month of this decision the Council will:
• Pay Mr X £1000 to be used for Y’s educational benefit. This is to recognise the loss of Y’s education and support between September and November 2018;
• Pay Mr X £300 to acknowledge the frustration and distress caused by the delays in reviewing Y’s EHC Plan, identifying an alternative school placement and setting up the direct payments;
• Remind relevant officers of the importance of keeping proper and appropriate documentation to record officer decision-making and actions.
42. Within three months of this decision the Council will review its procedures to:
• Ensure it appropriately reviews a child’s EHC Plan before the statutory annual review if there is a significant change in the child’s needs or circumstances;
• Minimise delay in identifying alternative education provision, should the school named in a child’s EHC Plan no longer be suitable;
• Ensure requests for personal budgets and direct payments are only considered when the Council is drafting a child’s EHC Plan or when it reviews a child’s Plan, in line with the statutory guidance;
• Ensure that once the Council has agreed direct payments for provision in an EHC Plan, these payments are set up without delay.

The Council should provide evidence to the Ombudsman it has completed these actions and any other actions it has already taken to improve its services.

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Final decision

43. I have completed my investigation. I have found fault and made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman