Summary: Mrs Y complains on behalf of her daughter, Miss K, the Council delayed in issuing an amended Education, Health and Care Plan following a Tribunal decision and delayed in producing a personal budget. We have upheld Mrs Y’s complaint because there is evidence of fault by the Council, which caused Miss K to miss out on certain educational provision. Mrs Y was caused distress and put to significant time and trouble chasing the Council. We also find the Council failed to register and process Mrs Y’s complaint. To remedy this, the Council has agreed to apologise to Miss K and Mrs Y, and make several payments to Miss K, a payment to Mrs Y and certain service improvements.

The complaint

1. The complainant, who I shall refer to here as Mrs Y complains, on behalf of her daughter, Miss K, that the Council:
1. failed to issue a final amended Education, Health and Care Plan (EHC Plan) for Miss K within five weeks of the Special Educational Needs and Disability (SEND) Tribunal decision of 25 January 2021;
2. failed to put in place Miss K’s personal budget in a timely manner. These costs relate to: petrol costs, psychological therapy, resources to support home tuition and one-off provision costs;
3. failed to arrange the full package of special educational provision (SEP) for Miss K. More specifically, the Council failed to arrange 30 hours tuition per week out of term time, psychological therapy and four hours tutoring per week;
4. failed to respond to her request that Miss K attend cookery classes during college holidays; and,
5. failed to register her formal complaints and process these in line with its complaint procedure.
2. Mrs Y says she has incurred costs to cover the support and resources the Council failed to provide, which came to approximately £7000. She says she is now in debt because of the Council’s failure to meet the cost of the provision specified in Miss K’s personal budget.
3. Mrs Y says the Council’s delay in issuing the EHC Plan, providing Miss K’s personal budget and full package of SEP has had a significant negative impact on Miss K and her family. She says Miss K’s needs have not been met and she has missed out on the full provision in her EHC Plan.

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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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. 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)

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How I considered this complaint

10. I spoke with Mrs Y about her complaint. I considered the information Mrs Y and the Council sent to me.
11. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.
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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What I found

What should have happened

Education, Health and Care Plans

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child or young person’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections, which include:

• Section B: The child or young person’s special educational needs (SEN). 
• Section F: The special educational provision (SEP) needed by the child or the young person.  
• Section I: The name and/or type of school. 

14. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this.
15. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.

Responsibility for making arrangements

16. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. It has a duty to secure the specified SEP in an EHC plan for the child or young person. (Children and Families Act, Section 42) The council is only relieved of this duty if the child or young person has made suitable alternative arrangements themselves. If a parent does make alternative arrangements the council must satisfy itself those arrangements are suitable.
17. 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.

Due diligence

18. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the SEP 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 SEP 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.

Appeal rights

19. 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 or young people must consider mediation before deciding to appeal.
20. Where the Tribunal orders a council to amend an EHC Plan, the council shall amend the EHC Plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014 – The SEN Regulations) 

Personal budgets

21. A SEN personal budget is an amount of money identified by the council to deliver provision set out in an EHC Plan. The Council can identify elements of the provision which can be made via a direct payment. Councils must ensure that children and young people with EHC Plans receive a level of support which will help them “achieve the best possible educational and other outcomes”.
22. Councils must consider each case on its individual merits.
23. Personal budgets are optional for the parent or young person. But, Councils are under a duty to prepare a personal budget when requested by a child or young person with an EHC Plan (Children and Families Act, Section 49(2))
24. The SEN Regulations provide potential opt outs for Councils where services are provided through a block contract, represent inefficient use of resources or impact on services available to others. In essence the Council is not allowed to make an SEN direct payment if to do so would lead to additional costs.
25. Parents or young people can only request personal budgets during the assessment for an EHC Plan or at statutory review of an existing plan, not at other times.
26. Personal budgets should focus on securing the provision identified in the EHC Plan and be designed to meet the outcomes agreed in the Plan. Personal budgets must be specified in Section J of EHC Plan.
27. There is no right of appeal to the SEND Tribunal against a decision not to provide a personal budget or direct payment.
28. If a Council refuses a direct payment it must give reasons in writing and tell the parent or young person they have a right of review (SEN Regulations, section 7) Requests for LGSCO to investigate before a review would usually be premature.

What happened

Scope of the investigation

29. Case law has decided that I cannot investigate any matter complained of that is inseparable from any appeal made to the SEND Tribunal. I cannot investigate or comment on any decision made by the SEND Tribunal. However, I have referred to SEND Tribunal decisions, where necessary, to understand the action taken by the Council and sequence of events.

Chronology

30. Mrs Y’s daughter, Miss K, is a young person above compulsory school age who has special educational needs (SEN). Miss K has an Education, Health and Care Plan (EHC Plan).
31. In late January 2021, the SEND Tribunal issued a decision about Mrs Y’s appeal about Miss K’s amended Plan from April 2020. The Tribunal noted that Miss K had been out of education for some time following a placement breakdown. The Tribunal decided that Miss K and Mrs Y’s placement preference of College One, an independent specialist post-16 college, should be named in Section I.
32. Regarding Section F of Miss K’s EHC Plan, the Tribunal decided:

• Miss K’s education should take place 52 weeks per year with provision set at six hours per day between Monday and Friday;
• Miss K should begin at College One three days a week and, after a period of transition, start attending five days a week;
• During college holidays, the Tribunal decided Miss K reasonably required 30 hours of tuition per week to be spread across subjects and experiences as decided by Miss K and her tutors;
• the Tribunal ordered four hours additional tuition per week to make sure relationships with Miss K’s tutors were maintained; and,
• resources for Miss K’s home tuition should be provided by way of annual provision through an appropriate budget to support Miss K’s tutors.

33. In late February, Miss K began attending College One three days per week.
34. On 20 March, Mrs Y complained to the Council. She said the Council had failed to issue an amended Plan within five weeks of the SEND Tribunal decision. Mrs Y asked the Council to explain how the family could request reimbursement of the petrol costs for transporting Miss K to and from College One and to confirm when Miss K’s 30 hours tuition per week during the Easter term break would begin.
35. A few days later, the Council held a meeting with Miss K, her parents, Miss K’s social worker and College One. This meeting was about increasing Miss K attendance at College One. The record of the meeting shows the Council said it would amend Section F of Miss K’s EHC Plan so that it said Miss K would attend College One five days per week from 20 April.
36. On 30 March, Mrs Y told the Council she wanted to make a formal complaint.
37. On 1 April, the Council replied to Mrs Y. It said Mrs Y’s concerns had been forwarded to a Senior Officer in its Special Education Needs and Disabilities Assessment and Review Team (SENDART) to address.
38. On 7 April, the Council arranged maths and English tuition for Miss K. The agreement between the Council and tuition provider, Tuition Provider A, was for seven hours tuition per week during college holidays with dates and times of tutoring to be agreed with Miss K and Mrs Y.
39. In mid-April, the Council’s Customer Relations team replied to Mrs Y’s complaint from 30 March. It said it had forwarded Mrs Y’s concerns to a Senior Officer in SENDART as this was “a more effective and timelier way of finding a resolution”.
40. On 6 May, the Council’s Customer Relations team asked Mrs Y to confirm the details of her complaint so it could consider it under stage one of its process.
41. On 19 May, Mrs Y wrote to the Council with details of her complaint. She said this was the third complaint she had made, but she still had not received a final Plan.
42. In mid-June, Mrs Y asked the Council to escalate her complaint. She complained she continued to source support for Miss K because the Council had failed to provide timely support and resources.
43. Two days later, Mrs Y complained to the Ombudsman. She said she had put in three formal complaints to the Council and made numerous calls without a satisfactory response.
44. We asked the Council whether it had responded to Mrs Y’s complaint. The Council told us it had not put Mrs Y’s complaint through its complaint process yet.
45. In mid-July, the Council completed a personal budget form for Miss K for decision by its SEN Panel. This included details of Mrs Y’s request for a suitable camera for Miss K, computer software and a video game to support Miss K’s learning as well as an increase in the personal budget for the following:

• cookery ingredients: an increase from £25 to £50 per week
• art materials: an increase from £15 to £30 per week
• funding for a food hygiene course: an increase from £25 to £50 per week

46. On 13 August, a solicitor, acting on behalf of Mrs Y and Miss K, sent a pre-action protocol letter before claim (under the judicial review procedures) to the Council concerning the Council’s failure to issue a final EHC Plan and its failure to provide the SEP in Miss K’s Plan. Mrs Y has not proceeded with the judicial review.
47. The solicitor told the Council the family could no longer afford to fund transport themselves and asked it to resolve the payment issues ahead of Miss K’s return to College One in September.
48. On 18 August, the Council issued Miss K’s final amended EHC Plan. In Section J, this stated that funding for Miss K’s out of term provision, which included 30 hours tuition per week, four hours tuition per week, tuition resources and a suitable camera were still to be confirmed.
49. The Council replied to Mrs Y’s solicitor:

• it apologised for the unacceptable delay in issuing the Plan;
• it said adult social care services would resolve the transport cost issues before the beginning of the autumn term; and,
• the Council asked for information on the camera model and cost so it could consider reimbursing the cost. It also asked for details of the weekly or monthly cost of art, craft and food supplies to complete the personal budget.

50. The Council sent a further email to Mrs Y’s solicitor asking Mrs Y to request reimbursement of transport costs from its adult social care services. The Council confirmed transport costs for Miss K had been agreed at £738 per week.
51. In January 2022, Mrs Y complained again to the Ombudsman. She said the Council had failed to register her complaints.
52. On 20 January, Mrs Y’s solicitor wrote to the Council again.
53. A week later, the Council replied. It said:

• it had asked Mrs Y to provide further information about the camera requested and other software, but had not received this from her;
• in the past, the Council provided a weekly personal budget of between £15 and £25 for food, cookery, arts and craft materials. It accepted the personal budget was yet to be confirmed, but it would not reimburse claims above £25; and,
• it had asked Miss K’s psychologist for an updated report to decide whether this provision would continue.

54. In February, the SEN Panel considered some of Miss K’s personal budget.
55. In early March, Mrs Y’s solicitor sent a second letter before action to the Council. It is my understanding Mrs Y did not proceed with the judicial review.
56. On 17 March, the Council replied to Mrs Y’s solicitor. It said:

• it accepted the Council was under a duty to secure all of the SEP in Section F of Miss K’s Plan. This included specialist psychological therapy. It accepted the Council had experienced difficulties securing the provision. But, the Council said Miss K’s family had made suitable alternative provision here, which relieved the Council of its duty to secure this provision. Nevertheless, the Council agreed to reimburse Miss K’s family for the costs incurred of £3,580.
• it accepted that the Council had not yet provided Miss K with a suitable camera; teaching materials such as a video game and social stories; and core subject resources (including plastic building blocks to help Miss K develop her knowledge in maths). It agreed to provide these items, along with the other teaching materials and core subject resources, either through a direct payment to Mrs Y or the Council purchasing these directly. It asked Mrs Y to confirm which option she preferred.

57. On 23 March, the Council began consulting possible therapy providers for Miss K.
58. Two days later, the Council agreed to commission a therapist that it considered suitable over a nine-month period (between April and November 2022).
59. On 1 April, Miss K began psychotherapy sessions arranged by the Council.
60. On 25 April, following consideration by the Council’s SEN Panel meeting on 7 April, the following personal budget was agreed for Miss K:

• four hours per week additional tuition during college term time with Tuition Provider A would take place outside the family home;
• 30 hours tuition per week during holidays could be used flexibly across maths and English tuition with Tuition Provider A and cookery school; and
• a personal budget of up to £25 per week for cookery resources.

Analysis – was there fault by the Council causing injustice?

Delays in issuing Miss K’s final EHC Plan

61. Following the SEND Tribunal decision in January, the Council should have issued the final amended Plan by 2 March 2021. But, the Council failed to issue the Plan until 18 August. This delay of five and a half months is fault (part a of the complaint). This meant Miss K missed out on having an up-to-date EHC Plan in place during this time and denied her appeal rights to the SEND Tribunal. Mrs Y was caused uncertainty and put to time and trouble chasing the Council.

Council handling of Miss K’s personal budget and provision

62. Mrs Y complains the Council failed to put in place Miss K’s personal budget in a timely manner (part b of the complaint). More specifically, this relates to: petrol costs transporting Miss K to and from College One, psychological therapy, resources to support home tuition and one-off provision costs.
63. Based on the evidence seen so far, I find the Council at fault here. This is based on the following:
1. The SEND Tribunal decision from January 2021 stated: “we accept that without resources, [Miss K’s] home tuition is limited. We conclude that resources for her tutors do amount to special educational provision and we order the parental proposal. We specify this as an annual provision of the specified resources or appropriate budget.” However, when the Council issued Miss K’s final Plan in August, the Council failed to specify the agreed personal budget for: on-going costs associated with Miss K’s cooking, arts and craft resources, and one-off costs for a camera, subscriptions to two computer software packages, and a video game to support Miss K’s learning. This is fault. By August, Mrs Y had gone to significant time and trouble requesting clarity from the Council about what financial support would be provided. She had complained to the Council about this on several occasions without resolution.
2. Prior to issuing Miss K’s Plan in August, the Council missed several opportunities to provide Mrs Y with its decision on her personal budget request. In mid-July, following a further complaint by Mrs Y about Miss K’s personal budget and provision, the Council completed a personal budget form for consideration by its SEN Panel. But, it is not clear what decision, if any, was made by the Panel following this and whether any decision was shared with Mrs Y. This is fault.
3. Instead, it is my understanding that it took until the end of April 2022 for the Council to agree to a personal budget of up to £25 per week for cookery resources. At the end of May 2022, shortly after my enquiry letter to the Council, a Senior Officer in SENDART confirmed a red camera had been purchased for Miss K as well as annual subscriptions for the two pieces of software that Miss K needed to support her learning, social stories and the plastic building blocks. I understand these resources were available for Miss K to use from June 2022. Given the final Plan should have been issued by early March 2021, this meant there was a delay of over a year before these resources – which the Tribunal considered to be SEP - were put in place by the Council. This is fault. Miss K missed out on this provision. Mrs Y went to significant time and trouble trying to get the Council to confirm the personal budget.
4. it remains unclear what decision the Council’s SEN Panel has made about Mrs Y’s request for a personal budget for art and craft supplies of £25 per week. This was included in the form considered by the SEN Panel in April 2022, but it is not included in the personal budget that was signed by Mrs Y following this meeting. This is fault. If it is the case that the Council has refused this request, it should have set this out in writing to Mrs Y and provided her with details of her right to request a formal review of the decision (as stated in the Council’s Personal Budgets Policy for Children and Young People with Education, Health and Care Plans 2021-2023). Conversely, if it is the case that the Panel has approved this request, this would mean Mrs Y has missed out on support of up to £400 over the 16 weeks out of term tuition.
5. at the end of May 2022, a Senior Officer in SENDART asked Mrs Y for further information before she could buy the video game for Miss K. It remains unclear whether Council has now bought the video game for Miss K.
6. Miss K began attending College One at the end of February 2021. The final Plan from August 2021 included a transport allowance of £3,115.40 per year. But, this was later increased by the Council in an email to Mrs Y’s solicitor, which said transport costs for Miss K had been agreed at £738 per week for 36 weeks in the year (after deducting college holidays). Based on the evidence I have seen, including the Council’s Statement of Mrs Y’s account and records of payments to Mrs Y, the Council began reimbursing the petrol costs and providing this element of this personal budget from the end of December 2021. It is not clear why it took the Council ten months to begin making these payments or confirm the weekly agreed budget, but I find such a prolonged delay to be fault. This caused Mrs Y stress and uncertainty about when the significant costs of travel would be reimbursed and how much would be covered. The Council has since reimbursed the outstanding petrol costs, which I find suitably remedies the quantifiable loss Mrs Y experienced.
7. in my view, much of the fault causing injustice here was caused by the Council failing to promptly set out a clear personal budget when finalising Miss K’s Plan. Rather, Miss K’s personal budget is set out in a number of documents, such as personal budget forms and replies to Mrs Y’s solicitor, which has made it difficult to be sure when and what decisions have been made by the Council. Based on the Council’s Personal Budgets Policy for Children and Young People with Education, Health and Care Plans 2021-2023, it does not have any clear timescales in place for responding to personal budget requests from parents of young people. I find this likely contributed to the delays in this case and the distress and confusion caused to Mrs Y. I have recommended a personal remedy and several service improvements around this.
64. I understand there was some dispute between the Council and Mrs Y about which camera and plastic building blocks should be provided. On 17 March 2022, the Council replied to Mrs Y’s solicitor refusing Mrs Y’s request for a camera that cost £230 and plastic building blocks at a cost of over £200 because it did not consider the particular models were reasonably required by Miss K. Instead, the Council agreed to a much cheaper camera model that it said suitably allowed Miss K to photograph recipes, arts and crafts, and building blocks that cost £13. This was a decision the Council was entitled to make, and it provided clear reasons for its refusal. Without fault in how it reached its decision, I cannot question its content.
65. Where I do find the Council at fault here is in its failure to provide Mrs Y with details of her right to request a review of the Council’s refusal decision. Mrs Y missed out on this opportunity. As the Council has now purchased these specific items and Miss K is making use of them, I do not consider it a worthwhile outcome to recommend it offers to review its decision. On balance, it is unlikely the review would lead to a different outcome for Mrs Y. I have, however, recommended a service improvement aimed at the Council providing information on an applicant’s right to request a review of its refusal decisions.
66. Mrs Y complains the Council failed to arrange the full package of SEP for Miss K and failed to respond to her request that Miss K attend cookery classes (parts b, c and d of the complaint).
67. Section F of Miss K’s EHC Plan from August 2021 says Miss K should receive specialist psychological therapy twice a week for up to 90 minutes at a time for approximately three months. Following this, it was hoped Miss K would be able to reduce this input to one session a week of around 90 minutes then to an hour per week of direct therapy within six to nine months. I find the Council failed to arrange this provision during the following periods:

• as explained above, the Council should have issued Miss K’s Plan by 2 March 2021 and arranged this above SEP from this date. Mrs Y chased the Council to put this provision in place throughout the summer term 2021, but it failed to do so. This is fault. I find this meant Miss K missed out on the specialist psychological therapy provision between March and June 2021;
• In June 2021, Mrs Y arranged and paid for psychotherapy sessions for Miss K when the Council failed to arrange this provision. Mrs Y covered these costs between June and December 2021. Mrs Y went to significant time and trouble asking the Council to reimburse these costs, including by instructing solicitors. In March 2022, the Council wrote to Mrs Y’s solicitor agreeing to reimburse the cost of £3,580. It said Miss K’s family had made suitable alternative provision here, which relieved the Council of its duty to secure this provision. Although the Council is entitled to do that, I have seen no evidence the Council communicated this to Mrs Y before she began incurring these costs. That was fault. Rather, I find, on balance, Mrs Y felt she had to arrange the provision herself while the Council failed in its duty to secure the provision. Mrs Y experienced financial strain until the Council reimbursed the quantifiable loss.
• In March 2022, the Council began commissioning specialist psychological therapy for Miss K that it considered suitable. This delay of a year is fault (parts b and c of the complaint). It caused Miss K uncertainty about when the Council would arrange this provision for her.

68. Miss K’s EHC Plan also states, as per the SEND Tribunal’s decision, that the Council should arrange:

• 30 hours of tuition per week during holidays to be spread across subjects and experiences as decided by Miss K and her tutors; and
• four hours additional tuition per week.

69. Based on the evidence I have seen, on 7 April 2021, the Council arranged with Tuition Provider A that Miss K should receive seven hours tuition per week during college holidays with dates and times of tutoring to be agreed with Miss K and Mrs Y. This led to Miss K receiving 11 hours of out of term tuition over two weeks (during the April 2021 college holiday). Miss K received some tuition during this college holiday, but the Council failed to provide up to a total of 60 hours tuition. This is fault. Miss K missed out on the full package of tuition provision.
70. Council records from the SEN Panel meeting in February 2022 show the previous personal budget that provided Miss K with out of term tuition “lapsed in May 2021” and had not been considered by the Panel since. This is fault. I find that, because of this fault, Miss K missed out on: one week of out of term tuition during the summer half term holiday 2021; seven weeks of tuition during the summer 2021 college holiday; and one week of tuition during the autumn 2021 half term holiday.
71. At the February meeting, the SEN Panel decided to cover the outstanding out of term tuition fees with Tuition Provider A for December 2021 (when Miss K received 63 hours of tuition over two weeks) and to provide a personal budget for the February 2022 half term holiday. A further SEN Panel meeting in April 2022 led to the Council agreeing that Tuition Provider A would provide 30 hours of tuition during college holidays. Based on the invoices and statement of Miss K’s account, I find these show Miss K had access to 30 hours of out of term tuition from December 2021 onwards. I do not find Miss K missed out on out of term tuition from December 2021 onwards.
72. Based on the evidence I have seen, the Council began arranging the additional four hours tuition per week with Tuition Provider A from January 2022 and its SEN Panel agreed in April that this tuition would be provided outside the family home. The Council should have arranged this provision from March 2021. This delay of ten months is fault causing Miss K to miss out on this provision during this time.
73. Lastly, Mrs Y complained the Council failed to respond to her request that Miss K attend cookery classes during college holidays.
74. In Mrs Y’s complaint to the Council in June 2021 she made a clear request that Miss K have access to cookery classes during college holidays. The Council failed to respond to this request until April 2022 when its SEN Panel agreed the 30 hours tuition per week during college holidays could be used flexibly across maths and English tuition and attending cookery school. This delay in responding to Mrs Y’s request is fault. I find, on balance, if the Council had responded to Mrs Y’s request in June 2021, it is likely the Council would have agreed to Miss K’s tuition being used flexibly in this way as this was also in line with Miss K’s EHC Plan. This meant Miss K missed out on access to cookery classes during seven weeks of tuition during the summer college holiday 2021; one week of tuition during the autumn half term holiday 2021; and three weeks during the winter college holiday. Mrs Y was put to time and trouble chasing the Council for a decision and caused uncertainty about what decision would be made.
75. Where fault has resulted in a loss of educational provision, including SEP, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on the child or young person.
76. In this case, I am recommending the Council make the following payments to Miss K for the loss of educational provision:
1. a monthly payment in the mid-range of £300 per month for the time Miss K missed out on specialist psychological therapy and the four hours tuition. This covers the period between March 2021 and end of May 2021 (a total of two and a half college months). The total payment for this time period is £750;
2. a payment of £100 in total for the two weeks missed “out of term” tuition during the April 2021 college holiday. This payment is at the lower end of the payment range because Miss K had access to some out of term tuition during this time (11 hours), but not all;
3. a monthly payment at the higher end of the payment range of £600 per month for the time Miss K missed out on any “out of term” tuition, including cookery classes, and the additional resources in her personal budget. This covers the summer 2021 holiday and one week of tuition during the autumn 2021 half term holiday. This covers a time period of eight weeks and comes to a total of £1,104;
4. a monthly payment of £200, which is at the lower end of the payment range, for the autumn term 2021, when Miss K missed out on the four hours tuition with Tuition Provider A, and spring term 2022 (until end of March 2022), while Miss K was without specialist psychological support. This covers five and a half college months and comes to a total of £1,100;
5. a payment of £200 per month for the remaining college holidays during the 2021/22 academic year when Miss K missed out on access to cookery classes and the additional resources in her personal budget to support her home tuition. This covers the winter term 2021 holiday; February 2022 half term holiday and April 2022 holiday. This is at the lower end of the payment range because Miss K had access to most other out of term tuition during this time. This covers a time period of seven weeks and comes to a total of £322;
6. although the Council failed to arrange specialist psychological support for Miss K from March 2021, Miss K had access to this from June to December 2021 through the psychotherapy arranged by Mrs Y. I have taken this into consideration when recommending the above payments. The Council has reimbursed Mrs Y for the costs incurred, which suitably remedies the quantifiable loss here. This goes further than I could recommend as some of the therapy sessions fell outside the expectations of Miss K’s Plan (by including family therapy).
77. For the reasons explained above, I uphold parts b to d of Mrs Y’s complaint because there is evidence of fault by the Council causing injustice.

Complaints handling

78. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to give it this opportunity.(Local Government Act 1974, section 26(5))
79. In this case, I have decided to investigate Mrs Y’s complaint because the Council missed several opportunities during the summer 2021 where it could have provided Mrs Y with a formal complaint response. Instead, its customer relations team forwarded Mrs Y’s complaint to SENDART to respond, but without a relevant department maintaining oversight of how and whether Mrs Y’s complaint had been suitably responded to under the Council’s complaints procedure. This is fault (part e of the complaint).
80. Mrs Y continued consistently raising the matters complained of with the Council after this time, but it again failed to provide Mrs Y with a stage one complaint response. This is fault. The Council’s failure to put Mrs Y’s complaints through its complaints process meant Mrs Y was put through a drawn out process without a clear resolution to her complaint. In comments on my draft decision, the Council accepted that its provisions, under its complaint procedure, to send a stage one complaint response were not being consistently followed. This caused Mrs Y distress and frustration. She went to significant time and trouble complaining. I have factored this into my recommended payment below and the fact Mrs Y, understandably, felt she had to instruct solicitors to support her with the issues complained of.

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Agreed action

81. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Miss K for the fault causing injustice identified above;
2. apologise in writing to Mrs Y for the fault causing injustice identified above;
3. make Miss K a payment of £300 for the significant uncertainty and distress caused. I have factored in the delay in issuing Miss K’s Plan, during which time she was denied SEND Tribunal appeal rights, and the delay of over a year in completing Miss K’s personal budget under Section J;
4. make Mrs Y a payment of £500 to recognise the significant avoidable distress, uncertainty and time and trouble she was put to, including the financial strain she was put under while the Council failed to arrange therapy for Miss K;
5. make Miss K a payment of £1,850 in total for the missed term time educational provision (as detailed in paragraph 76, bullet points a and d above). This is made up of two payments of £750 and £1,100;
6. make Miss K a payment of £1,536 in total for the missed out of term time educational provision (as detailed in paragraph 76, bullet points b, c and e above). This is made up of three payments of £100, £1,104 and £322; and,
7. review Miss K’s current personal budget and produce a clear breakdown of agreed support and the total sums awarded, which should be included in Section J of Miss K’s EHC Plan. The Council should include details of when the one-off provision was purchased (including the video game) and any ongoing personal budget costs were agreed so there is one, clear record of Miss K’s personal budget. The Council should include whether a personal budget for arts and craft material has been agreed and, if so, consider reimbursing Mrs Y the budget for the 2021/22 academic year.
82. When recommending the above payments, I have considered the Ombudsman’s published guidance on remedies.
83. Within three months of my final decision, the Council has agreed to carry out the following service improvements:
• circulate a reminder to relevant staff of the time limits for complying with SEND Tribunal decisions, including that the Council should issue the final amended EHC Plan within five weeks of a SEND Tribunal decision to change a Plan;
• review its Personal Budgets Policy for Children and Young People with Education, Health and Care Plans 2021-2023 to ensure there are clear timescales for staff to make decisions on personal budget requests;
• circulate a reminder to relevant staff of the need to put the reasons for any personal budget refusals in writing and provide details to applicants of their right to request a review of its decision (as stated in its 2021-2023 Personal Budgets Policy). The Council should review any relevant template letters to make sure it is clear when staff should include details of the review process;
• establish a mechanism to make sure complainants referred by its customer relations team to SENDART or another service receive a complaint response in line with the Council’s complaint procedure. For example, the Council should consider creating a system whereby its customer relations team records when it receives a complaint, when the complaint is passed to SENDART/another service and when SENDART/another service sends a stage one or final complaint response to make sure oversight is maintained over the complaint process. As explained in paragraph 79 above, this mechanism should be aimed at making sure a relevant department maintains an oversight of how and whether complaints are suitably responded to so that complainants receive a timely complaint response when referred on by its customer relations team and prompt signposting of the Ombudsman at the end of the process. Guidance on this should be circulated to staff, with a reminder on when complaints should receive a stage one complaint response. The Council should report back on the outcome of this; and,
• ask a Senior Officer in SENDART to review this decision and share any identified learning from it with relevant staff members.
84. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

85. I have completed my investigation.
86. I have decided to uphold parts a to e of Mrs Y’s complaint. This is because I have seen evidence of fault by the Council causing injustice. The above recommendations are suitable ways for the Council to remedy this, which the Council has agreed to.

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Investigator's decision on behalf of the Ombudsman