Summary: There was fault in how the Council dealt with the Special Educational Needs provision of the complainant’s daughter. The Council has agreed to make payments to remedy the injustice this caused.

The complaint

1. The complainants, who I shall refer to as Mr & Mrs C, complain that the Council failed to deliver the provision detailed in their daughters Education Health and Care (EHC) plan. I shall refer to Mr & Mrs C’s daughter as D. Mr & Mrs C say this has negatively impacted D’s development.

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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
3. 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)
4. 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

5. As part of my investigation I:
• Communicated with Mr & Mrs C via their representative, and considered information they provided.
• Made enquiries with the Council and considered their response and the information it provided.
• Considered the relevant statutory guidance.
6. I also sent a draft version of this decision to both parties and invited their comments.

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What I found

Provision for special educational needs

7. In the past a child with Special Educational Needs (SEN) may have needed a Statement of Special Educational Needs (the Statement). The Statement sets out the child’s needs and what arrangements would be made to meet them.
8. Councils are in the process of transferring pupils with statements onto Education Health and Care (EHC) plans following the introduction of a new scheme in 2014.
9. Councils have a duty to secure the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
10. A Personal Budget is an amount of money the council identifies to deliver provision set out in an EHC Plan where the parent or young person or child is involved in arranging the provision. The budget may be paid through direct payments to the individual or to the education placement.

What happened

11. Mr & Mrs C have a daughter, D, who has Special Educational Needs (SEN) arising from several diagnoses including dyslexia and dyspraxia. She had therefore been subject to a statement since 2013.
12. In February 2018, the Council completed its transfer from a statement to an EHC plan, issuing its final version of the plan.
13. Mr & Mrs C disagreed with the contents of D’s EHC plan, and successfully appealed to the tribunal. The hearing concluded in September 2018.
14. In accordance with the tribunal’s decision, the Council issued an amended EHC plan in October 2018. The plan detailed the provision that the Council would provide and included eight hours per week of specialist numeracy and literacy tuition, which would be provided at her school.
15. In November, Mr & Mrs C contacted the Council and asked why D’s specialist tuition was not being met. The Council said it had arranged payments to the school for it to provide the tuition. The Council said it would contact the School to ask why the provision was not being met.
16. In December, Mr & Mrs C contacted the Council again and asked for an update. The Council said that when it had issued the final EHC plan the Council had not informed the school that it needed to provide the provision. The Council apologised for the confusion.
17. In February, Mr & Mrs C contacted the Council to complain that the school had still not been providing D’s specialist tuition. The school told the Council that it understood that the provision would be delivered via a personal budget, and that it could not provide the provision.
18. The Council held a conference call with Mr & Mrs C in May 2019 to discuss the provision. The Council agreed that it would source a tutor to provide six hours a week of tuition, and that the remaining two hours would be arranged by Mr & Mrs C, paid for with a personal budget.
19. The Council were unable to source a tutor until October. However, complications meant that even when sourced, no tuition was provided. Mr & Mrs C subsequently requested the personal budget be increased to cover the full eight hours of weekly provision.
20. In November 2019, the Council agreed to increase D’s personal budget to cover the full hours. Due to staff absenteeism, there was a delay in arranging this. However, it was subsequently arranged and backdated to November 2019.
21. The Council agreed to allow Mr & Mrs C to carry over the remining funds to the next financial year and the final sum was used in December 2020

Analysis

22. The Council had a duty to ensure the provision in D’s EHC Plan was put in place. It should have taken steps to do so upon issuing their final EHC plan in Early October 2018.
23. The Council believed D’s school would be providing the provision and put in place funding for this. However, it seems the Council did not communicate this to the school meaning D’s provision was not met.
24. A personal budget has been in place since November 2019 to cover the full eight hours of specialist tuition. I will therefore look at the period from October 2018 to November 2019.
25. I consider the Council was at fault for failing to carry out its duty to arrange D's SEN provision, when it issued D’s EHC plan in early October 2018. When considering school holidays, there was a delay of six months before an alternative solution was agreed, with no provision in place in between.
26. The Council did agree to a personal budget for four and a half hours of provision between May and November. However, this did not cover the full eight hours of provision and it failed to provide the tuition it promised during this period. This is also fault.
27. Considering school holidays, the Council’s failure to meant that D went without around half of her provision for a further five months. This is also fault.
28. Where fault has resulted in a loss of educational or provision, we normally recommend a remedy payment.
29. It would be difficult to assess the precise impact the lost provision would have on D, and I note that there will have been EHC reviews since the events of this case to assess D’s needs and the ongoing provision needed to meet those needs.
30. I therefore consider it appropriate to recommend a remedy payment in this case, rather than recommend the Council put arrange the lost sessions. Having considered the facts of this case, including D’s SEN and school year, I consider the Council should offer to make a payment of £200 per month where there was no provision in place, to acknowledge the impact of the loss of that provision.
31. I consider the Council should offer a further £100 per month, where it only arranged a personal budget to cover around half of D’s provision. This lower payment is to reflect the fact that there was some provision in place during this period.
32. I also consider that Mr & Mrs C suffered undue stress in the form of inconvenience and frustration in their pursuit of D's SEN provision. It is for this reason that I also consider it appropriate for the Council to offer a payment of £150 to remedy the impact the loss of provision had on them.

Agreed action

33. The Council has agreed that within one month of the date of my final decision, it will:
• Offer to make a payment of £1200 to Mr & Mrs C to acknowledge the loss of provision during the six months where no specialist tuition was in place. This should be used for the benefit of D’s education.
• Offer to make a payment of £500 to Mr & Mrs C to acknowledge the further five-month period where it arranged a personal budget which did not meet the full number of hours needed to meet D’s tuition provision. This should also be used for the benefit of D’s education.
• Offer to pay Mr & Mrs C an additional £150 to recognise the distress the Council’s fault had on them, in the form of inconvenience and frustration.

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Final decision

34. I have concluded my investigation on the basis that there was fault which caused an injustice.

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Investigator's decision on behalf of the Ombudsman