Summary: Mr F complains about the way the Council implemented the Tribunal’s order in relation to SEN provision for his son and that it wrongly refused a personal budget. We have found fault. The Council has agreed to make a payment to Mr F to acknowledge the injustice caused.

The complaint

1. Mr F complains that the Council:
1. Failed to put education otherwise than at school (EOTAS) provision in place for his son J following the SEND Tribunal order in October 2020.
2. Implemented the SEND Tribunal decision and J's EOTAS inappropriately and in a way that did not reflect what the SEND Tribunal ordered and was not structured around meeting J's needs.
3. Failed to check that the SEN provision had been properly put in place after November 2020.
4. Failed to ensure the indicative personal budget for an ABA tutor to deliver EOTAS was sufficient and failed to review it to ensure its sufficiency.
5. Failed to provide him with details of organisations that provide advice and assistance in connection with personal budgets.
6. Wrongly refused a personal budget for ABA tutor support in school and wrongly tried to split the ABA support budget between school and home for the purpose of a personal budget.
7. Wrongly refused a personal budget for SALT.
8. Had a review process for the personal budget decisions which was set up in favour of the Council, was not procedurally fair or independent and the Council did not adequately explain its decision.
2. Mr F says as a result, delivery of EOTAS as ordered by the SEND Tribunal was delayed for 10 months and J did not have an individual education plan until April 2021.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether an organisation’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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. 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.
9. 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

10. I considered the information Mr F sent, the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice, January 2015 ("the Code")
• The Children and Families Act 2014
• The Special Educational Needs (Personal Budgets) Regulations 2014
11. Mr F 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

Special educational needs

12. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
14. Where the Tribunal orders a council to amend an EHC Plan, the council shall amend the plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014)
15. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Personal budgets

16. A personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC plan, where the parent or young person is involved in securing that provision. The personal budget regulations say councils may not make direct payments for the purpose of funding a place at a school.
17. Parents and young people can request a personal budget when the draft EHC plan is being prepared, reviewed or re-assessed. The Code says 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.
18. Councils must consider a request for a personal budget and must prepare one, unless disaggregation of funds for a personal budget:
• would have an adverse impact on other services which the local authority provides or arranges for children and young people with an EHC plan which the authority maintains; and/or
• would not be an efficient use of the authority’s resources.
19. The Council has a SEND complex case panel which considers requests for personal budgets. The panel consists of a senior SEND manager, an educational psychologist, a clinical officer and a social care officer.
20. A personal budget may be provided in the form of direct payments to the young person or their parent, for them to purchase the support themselves. It is also possible for the funds to be held by the council or school, which will then commission the support specified in the plan, or for a third party to manage the direct payments on behalf of the parent or young person. Details of a proposed personal budget should be included in section J of the draft EHC plan.
21. Where a council decides not to make direct payments (or provide a personal budget) it must tell the child’s parent its decision in writing, giving reasons. Parents have a right to request a review of the decision. The Code says councils must consider any representations made and inform the parent in writing of the outcome of the review, giving reasons. In Greenwich, an independent SEND advisor reviews the panel's decisions.
22. If a personal budget is agreed, the child’s parent or the young person should be given an indication of the level of funding that is likely to be required to make the provision specified, or proposed to be specified in the EHC plan. An indicative figure can be identified through a resource allocation or banded funding system. The Code says councils should be clear that any figure discussed at this stage is indicative and is a tool to support the planning process. The final allocation of funding budget must be sufficient to secure the agreed provision specified in the EHC plan and must be set out as part of that provision.

What happened

23. I have set out the key events leading to Mr F’s complaint. This is not intended to detail all that has happened or summarise all the correspondence between Mr F, the Council and the School.
24. Mr & Mrs F’s son, J, has diagnoses of autistic spectrum disorder, severe speech and language delay and other conditions. The Council issued an EHC plan for J in 2019, when he was seven years old and attending a mainstream primary school (“the School”). This said he should receive 32.5 hours per week of one-to-one support from an applied behaviour analysis (ABA) tutor, daily speech and language therapy and other strategies and support.
25. The School employed a full-time ABA tutor, supported by an independent ABA consultant. During the COVID-19 lockdown in 2020, Mr & Mrs F recruited the independent ABA consultant to support J at home. Mr F has made a separate complaint about the SEN provision during this time. From September 2020, J was attending school in the morning and receiving tutor support at home in the afternoon.

SEND Tribunal 2020

26. Mr F appealed to the SEND Tribunal about J’s EHC plan. The Tribunal considered whether J's special educational provision should include:
• EOTAS for part of the school day.
• Speech and language therapy (SALT) for 60 or 90 minutes per week.
• SALT during the eight weeks of the school holidays.
• Specified occupational therapy (OT).
• Physiotherapy.
27. On 16 October 2020, the Tribunal ordered that the description of J’s SEN and the provision in the EHC plan should be amended. This meant a new EHC plan (and its provision) had to be in place by 20 November 2020.
28. The order said that EOTAS for part of the school day should be included in J's SEN provision and that J required (amongst other things):
1. 32.5 hours of one-to-one ABA work per week with trained ABA tutors, delivered in part in school and in part otherwise than in school.
2. A SALT programme of 20 minutes per day, plus 60 minutes of SALT input per week from a qualified speech and language therapist.
3. An OT programme of an initial block of 12 weekly one-hour therapeutic intervention sessions. Provision to then be reviewed.
4. A physiotherapy programme of 30 minutes twice a week, to start within three weeks of the re-issue of the EHC plan and to be delivered by one of J's ABA tutors.
5. An individual education plan (IEP), reviewed each half-term
6. ABA tutors to facilitate his participation in small group, whole class and whole school activities.
29. The Tribunal said the School remained responsible for the delivery of EOTAS as J remained on its roll and it was responsible for employing the ABA tutor (and had the funding to do so). It said “Although the parents will have to be regularly consulted and involved in the planning, particularly when the tutor and therapists have to attend their home, they will not be able to decide what proportion of each day J spends in school. That decision will have to be made by educational professionals.” The Tribunal did not specify how the EOTAS or SEN provision should be delivered.

Development and implementation of the new EHC plan

30. The Council started to arrange implementing the Tribunal’s order. The NHS OT service advised it would not be able to provide the programme, so the Council contacted a private OT which replied in December 2020. It also made referrals to SALT and physiotherapy services and met with the School on 5 November.
31. The School then sent the Council and Mr F its plan of how the School could deliver the Tribunal’s order. The School’s plan said the School ABA tutor would work with J in the morning and the independent ABA consultant would work with him at home in the afternoon. The SALT, physiotherapy and OT would be provided at school. The School suggested the OT programme would start in the spring term. Mr F considers the School’s plan was a fait accompli and non-negotiable. He is concerned the School’s proposals were prepared to suit the school, rather than to meet J’s needs and that the parents had not been involved in its development.
32. The Council issued a new EHC plan on 16 November 2020 incorporating the revised wording ordered by the Tribunal. The plan also said J should receive a social care personal budget of £67.20 per week (£11.20 per hour) to help him access the community.
33. The School invited Mr & Mrs F to a half-termly “EOTAS Review” in December. The meeting was postponed by the School after it received Mr F’s response, which contained a number of issues that needed to be considered. Mr F says the Council has never replied to the letter.
34. In response to my enquiries, the Council sent reports from the independent ABA consultant, SALT and the physiotherapist showing J’s progress in the autumn of 2020.

Annual review January 2021

35. The annual review of J’s EHC plan was held in January 2021. It found J had made progress against his targets, but his long-term outcomes were not discussed as there had not been sufficient time to work on them since the Tribunal and Mr & Mrs F had queried some of them. New short-term outcomes were identified.
36. The Review recommended the EHC plan be amended to include (amongst other things) amended outcomes, an additional OT assessment and that J should not move up to Year 5 in September 2021.
37. At the Review, Mr & Mrs F requested personal budgets for ABA tutor time and for SALT as they considered J’s EOTAS was not being delivered in the way the Tribunal had intended. They were concerned that dividing his ABA provision between home tutoring and school tutoring, was failing to reflect the holistic nature of his Plan or the “blended/split package of support” envisaged by the Tribunal.
38. The Council wrote to Mr & Mrs F on 19 March 2021 that it had decided to make no changes to the EHC plan. It would consider their request for a personal budget at its complex case panel.
39. The School produced an IEP for J in April 2021.

Request for personal budgets

40. The complex case panel considered the request on 31 March 2021. It agreed that Mr & Mrs F could have a personal budget to fund the ABA tutor time that was delivered at home. It did not agree to one for ABA delivered at school. This was because the ABA tutor time in school was delivered and managed by the School (using council funding). The panel said a personal budget could not be used “for education taking place in a school”.
41. The panel also refused the request for a personal budget for SALT on the grounds that SALT was provided as part of a larger contract with the NHS, and it was not possible to disaggregate a personal budget from the overall budget. The Council considered that to do so would have an adverse impact on services and would be an inefficient use of the Council’s resources.
42. The Council wrote to Mr & Mrs F giving these reasons for its decision on 14 April. Mr F asked for the decision to be reviewed. The Council says its independent SEND advisor reviewed and upheld the Panel’s decision to refuse the request. The Council’s letter to Mr F of 7 June 2021 refers only to the review of the request for a personal budget for ABA. It says:

“The LA still stands by its decision which is both fair and practical of 14th April 2021 agreeing to a personal budget for home and not for school. The LA considered your request in line with The Special Education Needs (Budgets) Regulations 2014 and provided you its reasons for refusal (s6 and 7).”

43. The Council wrote to Mr F on 17 May 2021 setting out details of the personal budget it had agreed to, for the ABA provided at home. It said this would be £17,480 per annum, made up of 20 hours per term-time week at a standard hourly rate of £23 per hour. It proposed direct payments would start on 1 July 2021.

Mr F’s complaint

44. On 20 June 2021 Mr F complained to the Council about the EOTAS and personal budgets. He said:
• The Council had failed to involve the parents in planning the delivery of the EOTAS.
• The School’s plan was structured around its requirements, not J’s needs. As a result the same ABA tutor was not with J all day, his therapies were not delivered at home and at school, and all his educational curriculum and therapies were delivered only in the mornings. This was not in line with what the Tribunal had intended.
• The Tribunal order had intended SALT to be delivered at home and at school, but this was not being done as the School had a blanket policy not to allow its ABA tutor to go to J’s home.
45. In relation to the personal budgets, Mr F complained that:
• The Council had not explained how the budget had been calculated and the budget of £17,480 was insufficient as the independent ABA consultant’s hourly rate was £40 per hour, not £23.
• The Council had not provided any details of organisations that provide advice and assistance in connection with personal budgets and the information on its website about its local offer was out of date.
• The School had already advised it would stop funding the home ABA tutor from 30 June 2021, placing pressure on the parents to accept a personal budget which was too low.
• It did not make sense to start the personal budget only three weeks before the end of 2020/2021 academic year. It would be better to start at the beginning of the 2021/2022 academic year.
• The decision to refuse a personal budget for school ABA had not been properly reviewed. The review had been carried out by the same officer who had presented the case to the panel and who had been the Council’s representative at the meeting with the School to plan the provision. Mr F complained the review “was set up in favour of the Local Authority, was not procedurally fair, was lacking in independence (and therefore subject to bias and prejudice) and has inadequate reasoning.”
• The Council’s letter of 7 June did not refer to the SALT personal budget.
46. The Council then wrote to the School and in response, on 1 July 2021, the School agreed to a personal budget being provided for the whole ABA provision (at school and at home).
47. The Council advised Mr F on 16 July that it had reconsidered its position and now agreed to the parents holding the direct payments for 32.5 hours of ABA tutor provision from September 2021. It then advised that it would fund the ABA tutor up to a cap of £25 per hour and separately fund the ABA consultant.

The Council’s responses to Mr F’s complaints

48. The Council replied to Mr F’s complaint on 12 August 2021. It said:
• The meeting on 5 November 2020, that Mr F had not been invited to, was an internal meeting, not the official planning meeting.
• The Local Authority had worked to ensure EOTAS was delivered in the way the Tribunal had envisaged.
• SALT provision specified in EHC plans was provided by the Council’s commissioned provider. Mr F had not asked the SALT provider to deliver therapy in the home.
• £23 per hour for ABA tuition was a standard rate used by employment agencies and self-employed ABA tutors. The Council apologised this had not been explained in its letter. The Council had considered this was sufficient to secure the agreed provision, but an increased amount had now been approved.
• The Council had not provided Mr F with information on organisations that could advise on personal budgets. The website information on the Local Offer was being updated.
• The Council had not intended to pressure Mr F into accepting a personal budget in the form of direct payments. It could provide the school with the funding, or commission the ABA support to be delivered in and out of school.
• The School had advised the Council it would cease funding the ABA at home from 1 July to allow Mr F to receive the personal budget, but this had now been changed.
• The decision to refuse the personal budget had been reviewed by the SEND advisor, who was not employed by the Council, but the letter to Mr & Mrs F with the outcome of the review was sent by a council officer.
49. Mr F remained dissatisfied and asked for the complaint to be escalated to the next stage.
50. The Council’s final complaint response of 14 September 2021 confirmed its stage one response. It clarified that the ABA tutor would be funded at £25 per hour, but the independent ABA consultant would be funded at £40 per hour. The Council also said the Tribunal order did not include SALT to be delivered at home.

Events since coming to the Ombudsman

51. Mr F appealed to the SEND Tribunal in May 2021. In January 2022 the Tribunal ordered J’s EHC plan to be amended and a new EHC plan was issued in February 2022.
52. In response to a further complaint from Mr F about lack of OT provision, in March 2022 the Council accepted there had been a loss of OT provision from September to December 2021. It offered to pay Mr F £1,725 to compensate for this. It also made a payment to Mr F of £345 for two other lost sessions of OT.
53. These events were not part of my investigation.

My findings

54. Mr F complains the Council did not implement the Tribunal’s order appropriately. It is not for the Ombudsman to determine how SEN provision should be made. My role is to consider whether what was set out in the EHC plan and ordered by the Tribunal was delivered. In response to my draft decision, Mr F said I should consider the notes of the Tribunal’s discussion and the spirit of their order. I cannot interpret the spirit of what the Tribunal intended or consider notes of the discussion. I must consider what it ordered, which was then set out in the new EHC plan.
55. The evidence shows that from November 2020 J received 32.5 hours per week of ABA support, SALT and physiotherapy. This is in line with what was ordered by the Tribunal and specified in the EHC plan, which does not say there needs to be a single ABA tutor or that SALT must be delivered at home. So, whilst I appreciate it was not delivered in the way Mr F expected or found suitable, I find there was no fault as J received the SEN provision set out in his EHC plan.
56. Mr F was concerned that he was not involved in planning the delivery of the new EHC plan. It was not fault for the Council and School to meet to discuss how they would deliver the provision. Mr F says the School’s plan was a fait accompli, but I have seen no evidence that the Council would have refused to consider Mr F’s suggestions. Nor have I seen an order from the Tribunal that Mr F had to be involved in all meetings between the Council and School. So I do not find fault, but I consider it would have been good practice to have held a planning meeting with Mr F before the new EHC plan was issued on 16 November 2020.
57. There was a delay in providing OT until January 2021 and J’s IEP was not produced until April 2021. This is fault as these should have been delivered in November 2021. This means J missed out on OT provision from November to December 2020; I have calculated this as missing four hours of OT (one hour per week from mid-November until the Christmas holiday). The lack of an IEP causes some uncertainty about whether J’s targets and support were appropriate from November 2020 to April 2021, although I note that his targets were reviewed in January 2021.
58. I have seen no evidence of fault in the way the Council checked the SEN provision. It was aware of the OT delay and it reviewed the progress reports made at the January 2021 annual review. This is what we expect of councils when ensuring provision is in place.
59. The Council has accepted it failed to provide Mr F with details of organisations that provide advice and assistance in connection with personal budgets and that the information on its website about its Local Offer was out of date and incorrect. This is fault, but I have seen no evidence it caused injustice to Mr F.
60. There was no fault by the Council when it refused the request for a personal budget for SALT in April 2021. It was entitled to determine that a personal budget was not an efficient use of its resources and may have an adverse impact on other services. It set these reasons out in its decision letter. This is in line with the Regulations so I do not find fault.
61. There is no requirement for an indicative personal budget to be sufficient; the Code says an indicative figure can be identified as part of the planning process, but councils should be clear it is indicative. The final personal budget must be sufficient to secure the agreed provision specified in the EHC plan. This means it would not have been fault for the Council to suggest an indicative budget of £23 per hour for the ABA tutor. However, having reviewed the Council’s letter of 17 May 2021, I find it is not clear that the proposed budget is indicative. It implies that £23 per hour is the final amount. This is fault as £23 per hour was not a sufficient final budget.
62. The Council corrected this on 4 August 2021 when it clarified that there were separate rates for the ABA tutor (£25 per hour) and independent ABA consultant. This was prior to the personal budget starting in September 2021, so I consider no injustice was caused to J by the incorrect budget proposed in May 2021.
63. Mr F says the Council was wrong to split the ABA support between school and home for the purpose of a personal budget. The Council was entitled to consider that a personal budget for ABA at school may be inefficient or have an adverse impact on other services and to refuse the request for a personal budget for ABA at school. However, I find the Council did not properly explain its decision in the letters of 14 April or 7 June and that it used an incorrect reason. It said a personal budget could not be used for “education taking place in a school”. However, the Regulations say direct payments cannot be used to fund a school place. It is possible to use a personal budget to fund SEND provision delivered in school. The Council needed to consider and explain why doing so would have been inefficient and have an adverse impact. It did not do so, which was fault.
64. The Council changed its view about the personal budget for ABA provision in July 2021, so the injustice caused to Mr F is limited to uncertainty about the personal budget from April to July 2021.
65. The 7 June 2021 letter does not reply to Mr F’s request for a review of the decision not to allow a personal budget for SALT. This is fault and means it is unclear whether there was a review of the SALT decision. However, as there was no fault in the Council's original decision to refuse the personal budget for SALT, I consider it likely it would have been refused again. I therefore do not consider this fault causes any further injustice than the uncertainty identified in the above paragraph.
66. I have seen no evidence the Council’s personal budget review process is procedurally unfair. An independent SEND advisor reviews the complex case panel’s decision. This is in line with the Code. However, I find the Council did not properly explain the review process to Mr F and the review decision letter is unclear about how Mr F’s representations were considered or how the decision was reached. It also did not address his request for a review of the personal budget for SALT. This is fault, causing uncertainty and distress.
67. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. The Ombudsman’s guidance on remedies recommends a payment to acknowledge uncertainty caused by fault to be a moderate sum up to £300.

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Agreed action

68. Within a month of my final decision, the Council has agreed to pay Mr F:
• £460 in respect of the four hours of lost OT, to be used for J’s educational benefit.
• £300 to acknowledge the uncertainty caused to him, as set out above.

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Final decision

69. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman