Summary: Miss X complains that the Council failed to provide special educational provision for her daughter in line with her Education, Health and Care plan. She also complains that the Council ignored her request for a personal budget and failed to respond to her complaint. Miss X says her daughter lost out on provision she was entitled to receive. She says the Council’s failures have caused her unnecessary distress, anxiety and stress, and meant she spent time and trouble trying to resolve the problems. The Ombudsman finds the Council at fault. The fault caused Miss X injustice. The Council will apologise to Miss X and make a payment to reflect the injustice. The Council will also make an improvement to its service.

The complaint

1. The complainant, who I refer to here as Miss X, complains about the way the Council handled her daughter’s special educational needs. Specifically, she complains that the Council:
1. failed to provide the provision set out in her daughter’s Education, Health and Care plan;
2. ignored her request for a personal budget; and,
3. failed to respond to her complaint.
2. Miss X says her daughter, D, has lost out on provision she was entitled to receive. She says the Council’s failures have caused her unnecessary distress, anxiety and stress, and meant she spent a lot of time and trouble trying to resolve the problems.

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What I have investigated

3. I have investigated the Council’s actions from June 2019 (when the First-tier SEND Tribunal made its decision about D’s EHC plan) to April 2021 (when the Ombudsman accepted Miss X’s complaint).
4. I have investigated the majority of Miss X’s complaint. The final section of this statement gives my reasons for not investigating the parts of her complaint about healthcare.

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The Ombudsman’s role and powers

5. 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)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. 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)
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
10. 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)
11. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We may refer to it as the SEND Tribunal in this decision statement.
12. 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

13. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
14. I considered the relevant legislation, statutory guidance, and policies, set out below.

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What I found

What should have happened

Education, Health and Care (EHC) plans

15. Section F of an Education, Health and Care (EHC) plan sets out the special educational provision required. This must be detailed and specific. Councils must make sure children with an EHC plan get the support they need. The council has a legal duty to provide the special educational provision specified in the EHC plan. The council cannot delegate this duty to a school or other body. If a school’s resources, either financial or expertise, cannot make the provision outlined in the plan, the council must provide it.

Personal budgets

16. Once a child has an Education, Health and Care (EHC) plan, a council must make sure it provides the provision set out in the EHC plan. Normally, a council will do this by providing funding to the child’s school. However, councils can consider making a payment to the parent so they can organise the provision themselves. This is called a direct payment.
17. In order for a parent to request a direct payment, a council must first identify a personal budget. A personal budget is the notional amount of money that would be needed to cover the cost of making the special educational provision set out in the EHC plan.
18. The Special Educational Needs and Disability Code of Practice (‘the Code’) provides statutory guidance on the law and the regulations. The Code says councils must consider each request for a personal budget on its individual merits. It says councils must prepare a personal budget unless it would have an adverse impact on services the council provides or arranges for other EHC plan holders, or where it would not be an efficient use of the council’s resources.
19. The Code says if a council refuses a request for a personal budget, it must set out its reasons in writing and inform the parent of their right to request a formal review of the decision. The council must consider any subsequent representation made by the parent and notify them of the outcome, in writing, setting out reasons for the decision.

Complaint handling

20. The Council’s complaints procedure says it will respond to a complaint at stage one within 10 working days. It says its timeframe to respond to a complaint at stage two is 20 working days.

What happened

21. Miss X’s daughter, D, has special needs and has an Education, Health and Care (EHC) plan. In June 2019, the First-tier Special Educational Needs and Disability (SEND) Tribunal ordered changes to D’s EHC plan. The Council issued the amended EHC plan in July.
22. The EHC plan said D would get a certain number of speech and language therapy sessions from a speech and language therapist, and a certain number of weekly sessions of sensory processing therapy from an occupational therapist. The EHC plan also set out other more general provision to be provided by teachers and support staff at D’s school.
23. In August, Miss X asked the Council for a personal budget.
24. In September, the Council wrote to Miss X. It said it had considered her request for a personal budget. It said making a direct payment to her would have an adverse impact on other services it provides and arranges for other children with EHC plans. It also said direct payments would not be an efficient use of its resources. For these reasons, the Council said it would not agree to a personal budget. The Council offered to meet with Miss X to discuss the support and provision.
25. In November, Miss X complained to the Council that D’s special educational provision, as set out in the EHC plan, was not being provided. She also complained that the Council said she could not have a personal budget.
26. In December, the Council sent its stage one complaint response. It said it was aware that D had not received certain provision at the school “on a consistent basis” and apologised for this. It said it was largely due to a lack of therapists who could accommodate D on their caseloads. It acknowledged it had been an ongoing issue. The Council said it had now secured all therapy provision, and would secure the missed therapy provision.
27. In January 2020, Miss X asked the Council to deal with her complaint at stage two. The Council acknowledged this request.
28. In March, at the annual review of D’s EHC plan, Miss X asked the Council for a personal budget.
29. In July, Miss X complained to the Ombudsman.

Analysis

Failure to provide special educational provision

30. Miss X complains that the Council failed to provide the provision set out in her daughter’s Education, Health and Care (EHC) plan (part a of the complaint).
31. D’s EHC plan sets out what special educational provision will be provided. The two main elements are speech and language therapy (to be provided by a speech and language therapist) and sensory processing therapy (to be provided by an occupational therapist). The school provides the rest of the special educational provision.
32. I have seen reports from the speech and language therapist. These reports say that D’s speech and language therapy input began in December 2019. There is no evidence of any speech and language therapy provided from July 2019, when D’s EHC plan was issued following the Tribunal’s decision, to December 2019. This is fault. In its complaint response, the Council acknowledged this fault in that it recognised that D had not consistently received the therapy she should have received.
33. This fault caused D injustice because she did not receive the speech and language therapy she should have received at school during the autumn term 2019.
34. The Council told the Ombudsman that, in order to remedy the inconsistency in therapy provision, it has established its own in-house therapist team with an occupational therapist and a speech and language therapist who will deliver all EHC plans’ provisions. This is positive. However, I have seen no evidence that the Council has put in place additional speech and language therapy sessions to make up for the missed sessions from the autumn term 2019.
35. I am satisfied that D has received all the speech and language therapy set out in her EHC plan from December 2019 to April 2021 (the end of the scope of this investigation).
36. D’s EHC plan says she should receive a certain number of hourly sessions per week to be delivered by an occupational therapist. I have seen reports from the occupational therapist. The reports acknowledge there was a gap in this provision during the autumn term 2019. The Council has also acknowledged this gap in provision.
37. However, the reports say that additional occupational therapy provision was provided from January 2020 to October 2020. I am therefore satisfied that D received all the occupational therapy provision she should have between September 2019 and April 2021 (the scope of this investigation). The sessions may not have taken place when they should have, but I am satisfied that ultimately it has been completed. The main point here is that D has not missed out on any occupational therapy provision.
38. For this reason, I do not find fault with the Council regarding occupational therapy provision for D in line with her EHC plan.
39. Miss X complains that D has not seen a feeding specialist since 2018.
40. D’s EHC plan says she should have six-monthly reviews by a feeding specialist, to be delivered by an occupational therapist. Given the occupational therapist’s progress reports, which I have seen, I am satisfied that this has been completed in line with the EHC plan. I find no fault here.
41. Miss X complains that there is no daily support to get D to the toilet at home. She says this is provided at school. However, Miss X was not able to tell me what she thinks the Council should provide to meet this need.
42. I find that there is nothing in D’s EHC plan that says there should be support to help D to the toilet at home. The EHC plan says D needs an assessment of her toileting needs, nothing more than this. I cannot find the Council at fault for not providing something that is not in the EHC plan. For this reason, I do not find fault here.

Miss X’s request for a personal budget

43. Miss X complains that the Council ignored her request for a personal budget (part b of the complaint).
44. Miss X asked the Council for a personal budget in August 2019. The Council responded a month later, having considered her request. The Council refused Miss X’s request on the basis that it would have an adverse impact on other services it provides and arranges for other children with EHC plans. It also refused Miss X’s request on the basis that it was not an efficient use of its resources.
45. The Council is entitled to refuse requests for personal budgets for these reasons: this is in line with the SEND Code of Practice. Therefore, I find no fault with the Council’s decision in September 2019.
46. However, as I have said above, the SEND Code of Practice says if a council refuses a request for a personal budget, it must inform the parent of their right to request a formal review of the decision. The Council did not do this when it wrote to Miss X with its reasons for refusing her request. This is fault.
47. This fault caused Miss X injustice because it denied Miss X the right to ask the Council to formally review its decision.
48. In March 2020, Miss X asked the Council again for a personal budget. I have seen no evidence that the Council considered this request. This is not in the line with the Code, which says councils must consider any subsequent representation made by the parent, and must notify the parent of the outcome in writing. This is fault.
49. This fault caused Miss X an injustice because she was entitled to have her request considered formally. It is understandable that Miss X concluded that the Council had ignored her request.

Complaint handling

50. Miss X complains that the Council failed to respond to her complaint (part c of the complaint).
51. Miss X complained in November 2019. The Council responded at stage one a month later. Miss X then asked the Council to respond to her complaint at stage two. The Council acknowledged this request in January 2020. To date, the Council has failed to respond to Miss X’s complaint at stage two. This is fault, and is not in line with the Council’s complaints procedure, set out above.
52. I find this fault caused Miss X injustice in that it cost her time and trouble, and caused unnecessary distress.
53. The Council calls its failure to respond to Miss X’s stage two complaint “an oversight”. The Council says it now has a dedicated coordinator to oversee complaint responses and supervise actions. This is positive.

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Agreed action

54. Within four weeks of this decision, the Council has agreed to apologise to Miss X for:
• failing to inform her in September 2019 of her right to request a formal review of its decision to refuse a personal budget;
• failing to consider her subsequent request for a personal budget in March 2020; and,
• failing to respond to her stage two complaint.
55. Within four weeks of this decision, the Council has agreed to make a payment to Miss X of £900. This made up as follows:
• £600 to reflect the missed speech and language therapy for D for one term (autumn term 2019); and,
• £300 to reflect Miss X’s time and trouble and the unnecessary distress caused by failing to respond to her complaint at stage two.
56. In arriving at the figure of £600, I have considered the Ombudsman’s published guidance on remedies. The Ombudsman generally recommends between £200 to £600 per month for loss of special educational provision.
57. I have considered D’s special educational needs, the fact that I find D received the rest of the special educational provision set out in her EHC plan, whether the period affected was a significant one in D’s school career, and whether there is any additional provision now that can remedy some or all of the loss. I have seen no evidence that the Council intends to make up, or has made up, any of the missed speech and language therapy sessions D should have received in the autumn term of 2019.
58. I also bear in mind that while the EHC plan was issued in July 2019, schools were on summer holidays until September. For this reason, there was no expectation that speech and language therapy would be provided in July or August 2019.
59. I consider that a sum of £200 per missed month of speech and language therapy remedies the injustice caused by the loss of this provision. I consider that there were three months (September, October and November 2019) where there is no evidence of speech and language therapy provided. £200 multiplied by the three months in question adds up to £600. This should be used to benefit D’s education.
60. In arriving at the figure of £300 for Miss X’s time and trouble and unnecessary distress, I have considered the Ombudsman’s published guidance on remedies. The Ombudsman generally recommends between £100 to £300 for injustice like this. In this case I consider a payment at the top end of the scale is appropriate. This is because of the lengths of time involved: the Council should have responded to Miss X’s complaint by early February 2020.
61. Within three months of this decision, the Council has agreed to remind staff, including relevant management, of the need to inform parents of their right to request a formal review of a Council decision to refuse requests for personal budgets, in line with the SEND Code of Practice.

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Final decision

62. I have completed my investigation. I find the Council at fault. The fault caused Miss X and her daughter injustice. The Council has agreed to take action to remedy the injustice and make a service improvement to make sure the fault does not happen again.

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Parts of the complaint I have not investigated

63. Miss X told me that she wants to complain that the Council has not provided a proper assessment of healthcare needs, no proper care package, no access to bathing at home, issues with feeding and toileting, and no proper access to a toilet at home.
64. Miss X did not bring this complaint to the Council when she complained in November 2019. She also did not complain to the Ombudsman about this until August 2021. Miss X told me that she complained about this to the Council at the end of 2018 and there was a meeting in early 2019 about it.
65. As I have said above (paragraph nine), the Ombudsman cannot investigate complaints that are more than 12 months after the complainant first had knowledge of the problem, unless there are good reasons to do so.
66. In this case, I find that Miss X had knowledge of this issue in 2018 and she complained about it at that time. Miss X could not give a reason why she did not raise this complaint with the Ombudsman at the time. I am not satisfied there are good reasons to exercise our discretion and investigate as far back as 2018. For this reason, I have not investigated this part of Miss X’s complaint.
67. Further to this, Miss X complains that in June 2019 the SEND Tribunal judge ordered the Council to incorporate D’s bathing and feeding needs and provision into D’s EHC plan. She complains that this was not in the final amended EHC plan.
68. The Ombudsman cannot challenge what is or is not in an EHC plan. This can only be done by the SEND Tribunal. For this reason, this part of Miss X’s complaint is outside the Ombudsman’s jurisdiction.
69. Miss X may wish to raise these issues at the SEND Tribunal when she appeals D’s EHC plan (I understand there is an appeal in progress at this time). She may also wish to raise a fresh complaint with the Council about these issues. If she remains dissatisfied after the Council has considered her complaint, Miss X may wish to bring a fresh complaint to the Ombudsman.

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Investigator's decision on behalf of the Ombudsman