Summary: there is fault by the Council in its delayed response to the complaint but that this did not cause injustice so no remedy is justified. The other parts of the complaint have either been put before the SEND Tribunal or are inextricably linked to the Tribunal process and they are not therefore matters that this office can address now

The complaint

1. The complainant, whom I shall refer to as Mr B, says that Wokingham Borough Council has failed to fulfil its duties with regard to meeting Mr B’s son’s assessed special educational needs. In particular he says it:
1. failed to ensure that the provision detailed in his son’s Education, Health and Care Plan was fully made or to meet the full costs of the provision detailed as necessary to meet his son’s special educational needs in his Plan since 2017. This specifically refers to its failure to meet the full costs of full-time Applied Behavioural Analysis (ABA) provision until September 2020;
2. wrongly made an agreement with Mr B in December 2016 that is would only issue an EHC Plan naming Mr B’s preferred school and identifying ABA as provision that was required to meet his special educational needs if Mr B agreed to meet half the cost of providing that ABA. Between March 2019 and August 2020 Mr B contributed £28,290 towards that provision; and
3. failed to deal properly with Mr B’s complaint to the Council about these failings. Specifically it delayed from February to July 2020 in providing a response at stage 1 of the complaints procedure and failed to provide a response at all at stage 2 of that procedure.
2. Mr B has not complained about the requirement in the EHC Plan that he was also to pay for the cost of his son’s transport to school. I did however seek information about this to satisfy myself that this was an acceptable decision in the circumstances.
3. This complaint was made on Mr B’s behalf by a representative who is his solicitor.

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The Ombudsman’s role and powers

4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
5. In addition 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)
6. 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.
7. 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)
8. 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)

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How I considered this complaint

9. I carefully considered the written information provide by Mr B’s solicitor and made written enquires of the Council on the complaint. I considered all the information before reaching a draft decision.
10. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a 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 should have happened

12. The Council has a published complaints procedure which has two stages. At stage 1 the procedure says that a written response will be provided in 15 working days. The procedure says that if the complainant remains unhappy they may ask for the matter to be considered at stage 2 of the procedure when an officer will be appointed to investigate further and a written response provided in 20 working days.
13. 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. Section B of an EHC Plan details the child’s special educational needs, section F details the special educational provision required to meet the special educational needs and section I names the school the child will attend.
14. Paragraph 29 of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (as amended) states that “The Tribunal may, at the request of the parties but only if it considers it appropriate, make a consent order disposing of the proceedings and making such other appropriate provision as the parties have agreed”. The Tribunal does not have to agree to a consent order but may do so “if it considers it appropriate”.

Background

15. X is nine years old. He has a diagnosis of autism and has an Education, Health and Care Plan.

What happened

16. In response to my enquiries the Council has provided details of an appeal Mr B made to the SEND Tribunal in 2016 about X’s special educational needs in section B of his EHC Plan issued in 2016 and about the school named in section I of that Plan. Mr B wanted School Q named in section I. It is clear from the Tribunal decision that Mr B was legally represented when he submitted this appeal. The Tribunal issued a consent order which confirmed that Mr B’s appeal to the Tribunal would be concluded without a hearing because he had reached an agreement with the Council. The agreement attached to the consent order confirms:
• agreed amendments to sections B and F of X’s EHC Plan and confirmed X would attend School Q with support there in the form of ABA provision being arranged by Mr B;
• the cost of the ABA provision would be shared between the Council and Mr B with the Council paying 50% of this up to a maximum of £20,000 and the parents paying the other £50% with Mr B invoicing the Council for its share;
• Mr B would transport X to School Q and not require the Council to make this provision;
• if Mr B decided to cease paying the agreed parental contribution he would tell the Council and the Council would then amend X’s Plan to remove the ABA provision;
• if the parents were unable to continue to pay the agreed contribution or provide transport the Council would amend the Plan to name alternative provision but they would have a right of appeal to the SEND Tribunal about such an amended Plan; and
• if the Council wanted to end the agreement they were required to give the parents one month’s notice, amend the Plan and continue to fund the ABA provision until a new Plan was finalised and X began attending a new school or the time for appealing to SEND had passed and no appeal was lodged.
17. So it seems clear that the “agreement” referred to in part b) of the complaint as summarised was in fact reached as a result of an appeal to the SEND Tribunal and is confirmed in the consent order issued by that Tribunal.
18. Mr B paid 50% of the cost of the ABA provision up until September 2020. Whilst Mr B’s solicitors have argued that what happened was that Mr B paid for all provision made to X whilst he was being taught at home and the Council paid that which was provided in school, the Council denies this was the case stating it paid up to £20,000 per year as agreed in the agreement.
19. In September 2020 the Council agreed to cover the full cost of the ABA provision. The Council says this is because by then X had been attending School Q for four years and to move him would cause him unnecessary disruption. It refers to case law which considered this and which guided the Council’s decision on this.

Mr B’s complaint to the Council

20. Mr B’s solicitor says he complained to the Council on Mr B’s behalf in February 2020 and chased up a response in March, twice in April, in June and again in early July 2020.
21. The complaint submitted in February 2020 states that X’s EHC Plan had been recently amended in January 2020 and complained about the details of the “contract” the Council agreed with Mr B suggesting it was the result of the Council only agreeing to fund the ABA provision when X was in school and requiring Mr B to fund it when he was at home and stated this was unlawful. The solicitor stated that Mr B wanted X to attend school full time and that therefore the Council was required to pay the full cost of the ABA provision and that Mr B should be reimbursed for those fees he had already paid. They argued that the terms of the original agreement were unlawful and that if the Council did not agree to amend the EHC Plan to remove the inclusion of the limits on its ABA funding and agreeing to reimburse those costs Mr B had already met they would apply to the Hight Court in the form of a judicial review of the 2016 contract, amendment of the EHC Plan and reimbursement of the ABA fees Mr B had already paid.
22. The Council responded to the February letter referring to it as a “letter before action” rather than a complaint on 4 March stating the history of the matter complained about:
• the Council had issued an EHC Plan in 2016 which did not include ABA provision and proposed a special needs school;
• Mr B appealed to the SEND Tribunal in 2016 and that during these proceedings Mr B’s solicitor wrote to the Council proposing School Q and offering that Mr B would contribute to the cost of ABA provision in that school rather than proceed with the Council’s preferred school and provision; and
• after visiting the proposed school and further correspondence with Mr B’s then solicitor the Council essentially agreed to the arrangement and a formal written agreement was reached.
23. In that letter the Council did not accept the agreement was unlawful and stated that Mr B would have a right of appeal against any amendment to the Plan. The Council offered mediation to try to resolve the matter.
24. Mr B’s solicitor responded in mid-March stating essentially that the agreement was unlawful and confirming that mediation had been arranged.
25. The Council replied in late March reiterating its belief that the agreement was not unlawful. Mr B’s solicitor replied disagreeing with this response in early April.
26. Shortly after Mr B’s solicitor wrote to the Council again stating that mediation had not had the desired outcome and stating that this letter was “…sent in accordance with the pre-action protocol which governs judicial review proceedings”. It appears however an outcome of the mediation was the removal of some wording from the amended EHC Plan which referred to the Council’s contribution to the ABA provision up to £20,000. It asked the Council to reimburse the costs accrued for ABA provision to date and for its agreement to arrange and fund all provision in future or it would apply to the court for judicial review.
27. The Council replied in mid-April rejecting the solicitor’s claim and asking for clarification on whether Mr B wanted to make a complaint under the Council’s complaints procedure and, if so, asking him to make such a request and attaching details of the complaints procedure. The Council confirmed it would be considering amending X’s EHC Plan further to the mediation discussions. This was later clarified by the Council, after a request from Mr B’s solicitor for this, that the Council would consider amending the Plan if Mr B ceases to make the payments he had agreed to for the ABA provision. The Council went on to issue an amended plan.
28. Mr B’s solicitor said that his letter of 9 April confirmed he submitted his request for a refund as a complaint.
29. The Council provided its response to this complaint on 8 July. This response was largely a reiteration of what had been agreed in 2016 with regard to the provision and payment of ABA.
30. Mr B’s solicitor submitted a request for consideration at stage 2 slightly before the stage 1 response was provided by the Council in July. Presumably this request was made as a result of the delayed response at stage 1. As a consequence the Council asked for details of Mr B’s dissatisfaction with the response as at stage 1 before agreeing to escalate the matter to stage 2. The Council says the solicitor did not provide these details. Nonetheless the Council appears to have provided a further response in late July 2020, in which it stated it would not be reimbursing the fees paid by Mr B as this was agreed at Mr B’s request in 2016 and confirming that Mr B would have a right of appeal if the Council decided to amend the Plan.
31. In mid-August Mr B’s solicitor confirmed he would be initiating judicial review proceedings against the Council though it appears this did not happen.

Was the Council at fault and did this cause injustice

32. It seems clear that the original agreement that Mr B would pay 50% of the cost of the ABA provision was agreed within the process of Mr B’s application to the SEND Tribunal in 2016. As I have detailed in paragraph 4 above we cannot investigate a complaint if someone has appealed to a tribunal such as the SEND Tribunal about the same matter. It seems clear that the agreement reached was a way of resolving the matter that Mr B had appealed to the Tribunal about, namely the identified needs and the school named. Whilst Mr B’s solicitor provided details of this agreement to us in the form of a solicitor’s letter it was not clear that this agreement formed part of the Tribunal process. It is also clear from the information now provided by the Council that the Tribunal issued a Consent Order detailing this agreement in 2016. I cannot consider the agreement further as we cannot consider a complaint which is about a matter that formed the subject of an application to the SEND Tribunal. Mr B could have pursued the matter to a final Tribunal Hearing at that time if he did not want to make the agreement reached though it is my understanding it was his solicitor who put the offer forward. I am satisfied that he was legally represented at the Tribunal and should therefore have been fully informed about the options at the time.
33. In the complaint to this office Mr B’s solicitor says that X was originally issued with an EHC Plan in July 2017 and stated that the Plan stated that X should receive full time 1:1 support in school from an ABA tutor at School Q. The solicitor went on to say that because X was struggling to maintain full time attendance in school in 2017 the Council agreed with Mr B then that he would receive funded support at school at home subject to a limit of £20,000 from the Council. As detailed above this is not entirely correct as the decision in relation to the ABA provision and the funding of this was in fact reached following an appeal to the Tribunal in 2016 with the Order details as a result of that appeal also detailed above. Mr B’s solicitor alleges that over time X began attending school more and that the family was therefore unreasonably being required to fund the ABA provision in school rather than at home and this was not legal. It is clearly not the case that the Tribunal Order in 2016 differentiated between provision at home and provision in school: the agreement for 50% payment by Mr and 50% by the Council was reached irrespective of where the provision was made and there was no mention of home-based provision in that Order. As stated above we do not have the jurisdiction to consider a matter which was before the Tribunal which was effectively the case with this issue as it relates to the agreement made and included in the Consent Order with regard to payment of the ABA provision.
34. Mr B had further rights of appeal to the SEND Tribunal in January and April 2020 when the Council issued amended EHC Plans and if he was unhappy with the content of those he could have appealed to the Tribunal about those. He chose not to but that does not mean that we should consider any ongoing dissatisfaction with appealable matters now and I have seen no evidence to suggest that it would have been unreasonable to have expected him to do so.
35. Mr B has complained about the handling of his complaint by the Council. I have considered all the correspondence that Mr B’s solicitor says formed the complaint to the Council and the Council’s responses. I do not consider it was clear from the correspondence before April that these letters were a complaint to the Council as they all referred to Mr B’s intention to judicially review the Council if it did not agree to take the action Mr B’s solicitor requested. This is outside the scope of the complaints process. It was not until April 2020 that the issue of the matter being a complaint was confirmed. The Council provided a response around three months later but that response was largely a repetition of its response to the threat of legal action to which it had responded previously as the matters raised were the same. The Council’s response should have been provided more quickly under the published timescales but I do not consider the delay in the response amounted to injustice to Mr B as the issue raised in the complaint were identical to those already been responded to by the Council’s legal team outside the complaints process. The Council did provide a response at stage 2 of the complaints procedure.
36. As stated I asked the Council for information about transport provision to School Q but it is now clear that this too was covered in the agreement that was reached in 2016 following the appeal to the SEND Tribunal. It seems clear from the agreement that Mr B was happy to provide the transport but if he had not been he could have pursued the appeal to the final hearing to ask the Tribunal to resolve that. For this reason this is not a matter I am considering further.

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Final decision

37. There was fault by the Council in the form of its delayed response to the complaint after it was confirmed as such in April 2020 but that this did not cause injustice and I am not therefore seeking any remedy for this. I am not considering the other parts of the complaint as the matters in them have either been put before the SEND Tribunal or are inextricably linked to the Tribunal process and are therefore not matters that this office can address now.

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Investigator's decision on behalf of the Ombudsman