Summary: The complainant complains about the Council’s handling of his son’s Education, Health and Care Plan and says the Council has failed to comply with a decision by the court. The Council says it has paid for support for which the complainant has provided invoices. The Council and the complainant have also agreed to settle the outstanding payments. We find the Council at fault and that it has provided a suitable remedy. We are not investigating other parts of the complaint for jurisdictional reasons. The complainant’s appeal to the Special Educational Needs and Disability Tribunal and judicial review proceedings against the Council removes those other issues from our jurisdiction.

The complaint

1. The complainant, who I refer to as Mr X, complained about the Councils handling of his son’s Education, Health and Care (EHC) Plan. Mr X says following the court’s decision on his judicial review application the Council failed to pay the costs he incurred in providing his son, Y, with ABA.
2. Mr X wants the Council to compensate him for the financial losses he has incurred. These include the costs of the ABA. Mr X wants the Council to review its use of its contractor and properly consider Y’s needs at the next EHC Plan review.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes limits on what we can investigate.
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. SENDIST is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SENDIST’))
6. Case law has established that we cannot investigate any loss of education or other fault by a council from the date the right of appeal to SENDIST arises until the date the appeal is completed. Any loss of education or other fault during this period which is a consequence of the decision being appealed (such as the choice of placement) is outside jurisdiction even though this means the injustice will not be remedied. (R (on the application of ER) v The Commissioner for Local Administration (2014))
7. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
8. Case law has established that where an alternative remedy has been used (such as a right of appeal to a tribunal or court proceedings) we have no jurisdiction to investigate related matters or to provide an additional remedy. (R v The Commissioner for Local Administration ex parte PH (1999))
9. 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)

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How I considered this complaint

10. In considering the complaint I have:
• Read the information provided by Mr X and his representatives;
• Put enquiries to the Council and reviewed its response;
• Researched and taken legal advice on the relevant law, guidance and policy including the law setting out the Ombudsman’s jurisdiction;
• Shared with Mr X and the Council my draft decision and reflected on the comments received before making this final decision.
11. 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 found

What happened

12. Mr X’s son, Y, has special educational needs. He has an EHC Plan.
13. Between 2017 and 2019 the Council amended Y’s EHC Plan at least three times. Mr X twice appealed to SENDIST about the content of the EHC Plan, first in 2017 and again in 2019. In 2018 Mr X took judicial review proceedings against the Council, asking the court to consider the Council’s failure to make the special educational provision set out in Y’s EHC Plan.
14. Mr X complained to the Council in 2019. He brought his complaint to the Ombudsman in 2020. Mr X is unhappy with the way the Council handled Y's EHC Plan. Mr X is also unhappy he had to appeal to SENDIST and go to court to secure the special educational provision he wants Y to receive. Mr X said the Council did not respond fully to his complaint.

EHC Plans, appeals and judicial review

15. In July 2017, the Council issued an EHC Plan but did not include provision for Applied Behaviour Analysis (ABA) in Section F. Mr X appealed this EHC Plan to the Tribunal.
16. On 5 March 2018, the Council issued a further EHC Plan again without any ABA Provision.
17. However, on 26 March 2018, the Tribunal upheld Mr X’s appeal and ruled the EHC Plan should include 30 hours of ABA in Section F. The Council issued a final plan in April 2018 including ABA provision. Mr X’s solicitor wrote to the Council saying it had acted in breach of its duty by not providing the ABA provision.
18. Mr X then applied for a judicial review to rule on the legality of the Council’s action in May 2018. In August 2018, the Council issued a further EHC Plan. This EHC Plan removed the ABA provision the Tribunal had ordered the Council to include. Therefore, Mr X added this EHC Plan into his judicial review application.
19. The court ruled on the judicial review application in December 2018. It found the Council’s action unlawful. It quashed the August 2018 EHC Plan and ordered the Council to provide 30 hours ABA provision as set out in the April 2018 EHC Plan until it reviewed and issued a new EHC Plan.
20. In its judgement issued on 11 December 2018 the court said:

“the (Council) shall with effect from the date of this Order fund 30 hours ABA provision for (Y) at home for each of the 38 weeks of the normal school year. Such funding will continue unless or until the (Council) amends (Y’s) EHC Plan”

“The past period of breach and the financial and other costs to (Y’s) parents as a result cannot be a proper basis for changing the normal statutory procedure for the future. (Y’s) parents could have sought compensation but have chosen not to do so in the present proceedings”.

21. On 25 January 2019, the Council issued a final EHC Plan which Mr X appealed. The Tribunal ended its consideration of the appeal by consent order on 29 October 2019.

Payment of costs

22. The Council says it can pay for the ABA provision either by paying the provider direct or by Mr X passing invoices from the provider for payment. Mr X and the Council chose the latter arrangement with Mr X presenting invoices for payment by the Council.
23. Mr X says the Council did not pay all the costs of the ABA provision meaning he had to continue paying for provision out of the family’s income. Mr X says this deprived the family of the benefit of that money.
24. In response to my enquiries the Council says it has paid every claim Mr X presented but that he did not present the costs for provision between February and October 2020. Wider costs the Council says did not form part of the court’s or tribunal judgements, however the Council says as a ‘goodwill’ gesture the Council refunded added costs.
25. To support its response to my enquiries the Council provided a record of the payments it made to cover the costs of the ABA consultant and tutors. The Council also provided a record of the costs claimed (and which it refused) for swimming, motivators, stationery, and equipment (iPad). The unpaid claims total £3,200.39 for the period December 2018 to January 2020.
26. The Council says it recognises the damage to the relationship between Mr X and the Council arising its failure to include the ABA provision in the EHC Plan. This resulted in Mr X appealing twice to the Tribunal and taking court action.

27. To resolve the issues the Council offered with Mr X’s agreement to hold:
• A virtual informal disagreement resolution meeting, or
• A virtual formal disagreement resolution chaired by a qualified mediator.
28. That disagreement resolution meeting has now taken place. The Council says Mr X and the Council agreed the Council would pay for Y’s swimming, provision of an iPad and related software but not for stationery and motivators. The Council has paid for the items agreed. The Council says therefore it has delivered a remedy for any fault.

Analysis

29. Mr X had to appeal to SENDIST and go to court to secure the special educational provision for Y. However, Mr X’s appeal and judicial review action means we have no jurisdiction to investigate his complaint about the Council’s provision of the support set out in the EHC Plans the subject of his appeals.
30. The law limits what the Ombudsman may investigate. Case law referred to in paragraphs 6 and 8 of this statement limits what we may investigate. We cannot investigate any lack of educational provision while Y waited for the decision of the SENDIST appeals and judicial review proceedings. I recognise therefore the appeal decision and successful judicial review may not have addressed all Mr X’s concerns or provided a complete remedy. However, the law prevents me recommending a remedy for any lack of provision during these periods.
31. I find the Council at fault in not paying the costs associated with the ABA programme and for equipment such as an iPad as named in the EHC Plan without delay. The Council has remedied that through meeting with Mr X, and paying for the support as agreed in the meeting. Therefore, I find the Council at fault and that it has offered a suitable remedy.

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Final decision

32. In competing my investigation, I find the Council at fault and that it has offered and agreed a suitable remedy.

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Investigator's decision on behalf of the Ombudsman