Summary: We found fault with the Council for failing to put in place all the provision in Y’s Education, Health and Care plan. We also found fault with the annual review process, record keeping and complaint handling. This caused Y an injustice because they missed out on provision they should have received. The Council agreed actions to remedy the injustice.

The complaint

1. Ms X complained the Council failed to put in place the provision set out in her child, Y’s, Education, Health and Care plan (EHCP).
2. She also complained the Council:

• Delayed responding to her personal budget request.
• Failed to carry out the annual review prior to Y’s transition to secondary school.
• Delayed the complaint process.
• Failed to provide information she requested.

3. Ms X said Y missed out on provision they needed for their development and wellbeing. She also said it placed a significant strain on the family. Ms X said she experienced distress and spent many hours trying to resolve the situation with the Council.

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The Ombudsman’s role and powers

4. 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)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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. I investigated matters from September 2019 because Ms X complained to the Ombudsman in 2020 and we returned it the Council to complete its procedure. (Local Government Act 1974, sections 26B and 34D, as amended)
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
9. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
10. If we are satisfied with an organisation’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)
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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How I considered this complaint

12. I spoke to Ms X and considered the information she provided with her complaint. I made enquiries with the Council and considered its response along with relevant law and guidance.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

Education, Health and Care plans (EHCP)

14. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
15. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
16. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
17. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
18. For young people with an EHC plan, preparation for transition to adulthood must begin from year 9 (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.
19. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools.
20. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Personal budgets

21. A personal budget is an amount of money identified by the council to deliver provision set out in an EHC plan where the parent or young person is involved in securing that provision.
22. Council’s must provide information on personal budgets as part of the Local Offer. This should include a policy on personal budgets that sets out a description of the services across education, health and social care that currently lend themselves to the use of personal budgets, how that funding will be made available, and clear and simple statements of eligibility criteria and the decision-making processes.
23. Personal budgets are optional for the child’s parent or the young person but councils are under a duty to prepare a budget when requested. Councils must provide information about organisations that may be able to provide advice and assistance to help parents and young people to make informed decisions about personal budgets.
24. The special educational needs and disability code of practice sets out the mechanisms for delivering personal budgets.

The Council’s complaint procedure

25. The Council has a two-stage complaint procedure.
26. At stage one the Council says it will:

• Acknowledge a complaint within 5 working days.
• Provide a case reference number.
• Send a full response to the complaint within 20 working days.
• Contact the complainant and agree an extension if a full response isn’t possible within 20 working days.

27. If the complainant remains unhappy with the stage one response they can request their complaint is reviewed at stage two. The Council says it will:

• Investigate the complaint independently by the corporate resolution team.
• Reply to the complaint within 20 working days.

What happened

28. What follows is a brief chronology of key events and information. It does not contain all the information I reviewed during my investigation.
29. Y has an EHCP. They have multiple complex needs that affect them both physically and mentally. Y lives with their family. Therapies in their EHCP that are relevant to this complaint include:

• Physiotherapy and hydrotherapy
• Occupational therapy
• Speech and Language

30. Ms X had concerns that Y was not receiving the provision set out in their EHCP. She corresponded with the Council but was unhappy with the responses she received.
31. In June 2020 Ms X complained to the Council. She said she asked the Council for clarity on what EHC provision Y had received but it had not responded. She asked for a detailed response. She also asked for a personal budget to pay for the provision directly as she did not think the Council was fulfilling its duty to put in place the EHC provision set out in Y’s plan.
32. The Council responded at stage one of its procedure in July 2020. It told Ms X:

• Y’s speech and language therapy (SaLT) was being delivered by Croydon NHS speech and language therapy service.
• It believed Y was receiving occupational therapy (OT) through its commissioned service. It told Ms X she should tell the Council if that was not the case.
• If Ms X wanted to consider a personal budget she should tell the Council so it could consider the request.

33. Ms X replied and told the Council she was not satisfied with its response because it did not give any detail about the number of hours of therapy Y had received. She asked for proof of the therapy Y had received since 2018. Ms X made a freedom of information request for this information.
34. Ms X complained to the Ombudsman in September and December 2020 but we did not accept the complaint because it had not been considered at stage two of the Council’s process.
35. Ms X complained to the Ombudsman again in May 2021. We asked the Council to consider the complaint at stage two. It gave Ms X its stage two response in June 2021. The Council:

• Apologised for the delay moving her complaint to stage two.
• Said it had no record of any concerns raised about Y’s transfer to secondary school.
• Confirmed the request for a personal budget was agreed and recorded in section I of Y’s EHCP. It apologised for the delay but said Y was not affected because the school was funded to provide the therapies.

36. In June 2021 the Council agreed to pay Ms X an annual personal budget for Y’s Physiotherapy and Occupational Therapy.
37. Ms X was unhappy with the Councils response and brought her complaint back to the Ombudsman.

My findings

38. I have summarised my findings under the main headings of Ms X’s complaint.

EHCP provision

39. I found fault with the Council. The Council said Y’s school was responsible for putting in place the provision set out in Y’s EHCP. However, the guidance is clear that the Council remains responsible for securing the provision. The Council should have a process in place to monitor the arrangements. It was paying a budget for the provision but was unable to provide accurate evidence that all the provision in the EHCP was in place.
40. It was disappointing that despite numerous opportunities the Council did not identify there were clear gaps in Y’s provision. In its response to my investigation it referred to invoices for academic year 2019/2020 that were for the previous year. It told me the commissioned therapy was taken over by the personal budget during the academic year 2019/2020 but it was not agreed until June 2021 and was not in place until near the end of the academic year 2020/2021. I found its record keeping and audit trails were incomplete, inaccurate and in some cases missing.
41. The email correspondence suggested the hydrotherapy was not being provided for a significant period and this was not all due to COVID-19. Other emails from the school to the Council said there was no funding left for the occupational therapy and physiotherapy once it funded Y’s one to one support.
42. Y suffered a significant injustice. They did not receive all the provision set out in their EHCP. Y was entitled to receive the provision and the Council was responsible for securing it.

Personal Budget

43. I found fault with the Council for delays in the personal budget process. Ms X first asked for information about a personal budget in July 2020. There were significant delays approving the budget from July 2020 to June 2021. After it was approved there were further delays paying the agreed personal budget to Ms X.
44. In April 2021 Ms X emailed the Council about the personal budget. She said:

‘We have not received any update with respect to personal budget, I can't hold the professionals schedule which gets quickly booked. Now they are not able to accommodate Y, so I had to go and find a new provider’.

and

‘We are at the final term of the academic year and still you have not issued the personal budget though it had been approved’.

45. The delay paying the agreed personal budget caused an injustice to both Y and Ms X. Y missed out on provision and Ms X experienced further time, trouble and frustration chasing the Council about the budget over many months.

Annual review/ transition to secondary school

46. I found fault with the Council. Y transitioned from primary to secondary school in September 2020. The Council belatedly provided evidence there was an annual review carried out by the school in October 2019. However, the Council did not attend this key review and did not have any oversight of the process. The review failed to provide any focus or clarity on the transition to secondary school.
47. In its response to Ms X and my investigation the Council said the school was responsible for the EHC provision. The evidence suggested the school was not able to provide all the provision and some needed to be commissioned. This was discussed in the review meeting in November 2020, when it is clear Y was not receiving all the provision set out in their EHCP.
48. On balance it is likely that if the Council had attended the reviews, or had better oversight, of the review and transition process the provision issues could have been identified and resolved much earlier.
49. Ms X would also have had the opportunity to raise her concerns with the Council and some of her frustration and distress about the transition from primary to secondary could have been lessened.
50. I found the Council’s response to Ms X’s complaint about the annual review and transition were dismissive and failed to recognise what a worrying time it can be for a family of a child with such complex needs as Y.

Complaint handling

51. I found fault with the way the Council responded to Ms X’s complaints. There were significant delays and the responses failed to address all of Ms X’s complaint.
52. The Council also missed an opportunity to resolve this complaint during its own complaint handling and this caused Ms X the additional time and trouble of bringing her complaint to us.
53. Ms X asked the Council for evidence of what provision Y had received. The Council failed to provide this information in its complaint responses. I am unclear why the Council asked Ms X to submit a freedom of information request for this information. This is not in the spirit of the SEN code of practice. Section 1.1 lists the principles underpinning the Code, this includes:

• the importance of the child or young person, and the child’s parents, participating as fully as possible in decisions, and being provided with the information and support necessary to enable participation in those decisions

54. Understanding what provision Y did and did not have would appear to be at the core of the information Ms X would need to know to enable her participation in the decision making. The Council’s response caused Ms X frustration.

Summary

55. The core issue in this case was Y’s EHCP provision for the period set out at the start of this statement. There were other issues I addressed in my findings but these all stem from the issues with the EHCP provision.
56. I asked the Council for evidence of Ys provision for this period. I had significant issues getting the information from the Council and the final response remained incomplete and inaccurate.
57. I concluded during my investigation that the Council could not provide the information because it does not have it or could not locate it. This is fault. The Council failed to keep clear and accurate records of Y’s EHCP provision. Where the school was delivering provision, the Council maintains responsibility for securing the provision set out in the EHCP.
58. Whilst some issues may have been a result of COVID-19 there were already significant issues with the provision and on balance I do not think COVID-19 was the major or overriding issue in this case. So, whilst I acknowledge it had an impact on the delivery of some provision for a short period it was not a significant feature of this case.
59. Due to the difficulties with the Council’s information and evidence I cannot say for certain what provision Y did and did not receive. I can say they did not have everything they should have. This made the remedy more difficult to calculate. The agreed financial remedy is in recognition of the missed provision rather than an exact calculation.
60. The Council also agreed a financial remedy to recognise the time, trouble, frustration and distress Ms X experienced. The family was already under significant pressure supporting Y, who has significant needs. The Code says the Council must support the family to facilitate the development of Y and help them achieve the best possible educational outcome. The Council failed to do this and its actions and communication about this case made an already challenging situation worse and more stressful.
61. The Council also agreed service improvement recommendations. I was concerned by the Council’s poor response to this investigation and the evidence of maladministration.

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Agreed action

62. Within one month of my final decision the Council agrees to:

• Pay Y £12900 in recognition of missed provision from September 2019 to April 2021.
• Pay Ms X £700 in recognition of the distress, frustration, time and trouble it caused her.
• Provide evidence the personal budget is being paid to Ms X and the provision set out in Y’s EHCP is in place.

63. Within three months of my final decision the Council agrees to:

• Review its personal budget policy and provide the Ombudsman with evidence of how it will avoid the delays and issues identified in this case.
• Review its monitoring arrangements for EHCP provision that is provided by schools. It should be able to demonstrate how it has used the learning from this case to improve its practice in this area to ensure accurate record keeping and audit trails.

64. The Council should provide the Ombudsman with evidence it has completed the agreed actions.

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Final decision

65. I found fault with the Council causing injustice. I completed my investigation.

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Parts of the complaint that I did not investigate

66. I have not investigated Ms X’s complaint of missed provision prior to September 2019 because it was out of time.
67. I have not investigated any complaints about the schools actions or communication because it is out of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman