London Borough of Richmond upon Thames (21 010 908)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 15 Aug 2022

The Ombudsman's final decision:

Summary: Mr and Mrs B complained the Council failed to secure adequate education and other provision to help meet their daughter’s special educational needs between March 2019 and July 2021. The Council’s contractor acknowledged fault and offered a remedy for the injustice caused. We reconsidered that remedy taking account of costs incurred by Mr and Mrs B in meeting their daughter’s needs and the Council’s contractor agreed a revised remedy, detailed in this statement.

The complaint

  1. A representative complains on behalf of ‘Mr and Mrs B’. They say the Council:
      1. failed to ensure their daughter ‘C’ received education between March 2019 and October 2019 despite knowing she was not attending her secondary school;
      2. has acknowledged failing to ensure C received adequate education and therapeutic interventions in line with an Education, Health and Care Plan (EHCP) between October 2019 and July 2021. But it has not provided an adequate financial remedy to reflect the costs Mr and Mrs B incurred in ensuring at least some of that provision was met;
      3. failed to provide certain information requested during the complaint procedure.
  2. Mr and Mrs B say as a result C has missed out on education and they have incurred unnecessary expenses.

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What I have investigated

  1. I have investigated those complaints summarised at paragraph 1a) and 1b) above. For reasons set out at the end of this statement I did not investigate the complaint summarised at 1c) above.

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The Ombudsman’s role and powers

  1. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
  3. 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. There are various constraints on the Ombudsman’s powers to investigate. Of potential relevance to this complaint, we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  5. In addition, 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. We cannot investigate a complaint if someone has appealed to a tribunal about the matter complained about. (Local Government Act 1974, section 26(6), as amended)
  6. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with a placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged, if that is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
  7. 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

  1. Before issuing this decision statement I considered the following:
  • the written complaint made by a representative on behalf of Mr and Mrs B and any supporting information they provided; this included information provided in reply to my enquiries;
  • exchanges between a contractor providing children’s services on behalf of the Council and Mr and Mrs B about the matters covered by the complaint which pre-dated our investigation;
  • information provided by the Council and Mr and Mrs B’s representative in reply to enquiries;
  • any relevant law, Government guidance or council policy as referred to in the text below; as well as any relevant guidance published by the Ombudsman.
  1. I also gave Mr and Mrs B, the Council and its contractor a chance to comment on a draft of this decision statement. I took account of any comments made before completing this investigation and issuing this final decision statement.
  2. 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

Legal Background – children with special educational needs

  1. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
  2. 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.

Children absent from school for health reasons

  1. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them (Education Act 1996, section 19(1)).
  2. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
  3. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
  4. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he/she may have. (Education Act 1996, section 19(6))
  5. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
  6. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Chronology of key events

Events up to October 2019

  1. I note at the outset that the Council contracts its children’s services to a third party organisation (a not for profit social enterprise). I will refer to this organisation as ‘the contractor’ throughout.
  2. I consider the beginning of events covered by this complaint to be March 2019. C attended an independent school. She was in Year 10 of her education and not known to the Council or its contractor as a child with special educational needs (SEN). However, C had such needs and since September 2018 her school attendance had declined. Mr and Mrs B say it was in March 2019 they first contacted the contractor for any support it could offer.
  3. The contractor has no record of any contact from Mr and Mrs B then. However, it became aware of C’s absence from school in June 2019 and Mr and Mrs B were in touch with its SEN service from this time. Mr and Mrs B requested the contractor assess C for an EHCP. The contractor gave Mr and Mrs B advice about that process; what was involved, timescales and so on. The emails from the SEN service clearly show that it knew C was not attending school. And C’s school also sent an email to the Council where it said she was “unable” to attend school because of her needs.
  4. As well as C’s case being open to the SEN service, until September 2019 the contractor’s Educational Welfare Service (EWS) also took an active involvement in C’s case. In closing the case, the EWS referred to a meeting it had attended at the school earlier that month. It said the school was “accepting [of C’s] health needs and responding accordingly, managing [C’s] attendance through their responsibilities for supporting children with health needs”. The email noted C was in contact with a range of professionals, was being assessed for an EHCP and this support was in place for C’s “return to school”.
  5. The school sent an email back to the EWS in mid-October 2019 which made clear C was not attending school. It referred to Mr and Mrs B having “pulled” C from the school.
  6. Towards the end of October 2019, a consultant psychologist said C was not fit to attend school.

Events between November 2019 and July 2020

  1. At the end of October 2019, the Council finalised an EHCP. This did not name a setting for C’s education. It said she needed a specialist placement to meet her special educational needs.
  2. Mr and Mrs B appealed the EHCP. Initially, as part of their appeal, they wanted C’s independent school named as the education setting in the plan. However, over time their view changed and by the time the appeal was heard (initially in June 2020 with a second hearing in July 2020) they asked the plan name an education provider I will call “Provider X”. This is a service that provides bespoke 1:1 tuition for pupils.
  3. Between October 2019 and July 2020 Mr and Mrs B paid for some home tuition for C (from a different provider to Provider X). The tutors liaised with C’s school and helped her to provide work that could be assessed for her GCSEs. C remained on the school roll and the Council knew this. The tutoring service charged around £5600 for this support.
  4. In May 2020 the contractor contacted ‘Provider Y’. This is a specialist service for pupils with specific SEN. It provides both a school and a tuition service. There were initial exchanges between the services before Provider Y indicated a willingness to consider the request. But then one of the contractor’s officers told Provider Y they did not know if C would engage in tuition, given Mr and Mrs B had made their own arrangements. The Council repeated a similar message in June 2020.
  5. In July 2020 a SEND Tribunal heard submissions from Mr and Mrs B and the Council. It considered Mr and Mrs B’s suggestion that C’s named education setting on her EHCP should be Provider X. While the tribunal agreed some amendments to C’s EHCP it did not agree with this proposal. It considered Provider X would not meet C’s need for small group learning, something advised by professionals supporting her. C’s EHCP therefore continued to say that C needed a ‘specialist provision’ without naming an education setting.

Events after July 2020

  1. C’s final amended EHCP set out a stepped plan for her to return to education. In the first instance this said she should receive 1:1 tuition at home, building up to small group learning. The plan also identified C should have weekly sessions with relevant professionals – a speech and language therapist, a clinical psychologist and an occupational therapist.
  2. In August 2020 Mr and Mrs B commissioned Provider X to begin delivering 1:1 tuition for C. The provider delivered four days a week full time tuition for C. The cost of this service was around £29,000 between August 2020 and January 2021.
  3. The contractor says from August 2020, it consulted Provider Y a second time about C receiving post-16 education. It says that it wrote to Mr and Mrs B suggesting Provider Y could provide interim tuition for C. But an email from Mr and Mrs B’s representative in late September 2020 said the family had received “no further update” on whether Provider Y could meet interim provision for C.
  4. In reply to that email, the contractor said it still considered Provider Y a “possibility” and asked Mr and Mrs B’s representative for details of the home tuition she received; which was for specific A-level subjects. In early November 2020 the contractor told Mr and Mrs B’s representative that Provider Y could offer tuition in those subjects. And later that month described Provider Y as “the current option” for C. But in reply to my enquiries the Council has confirmed its contractor never made a “formal offer” that C receive education from Provider Y.
  5. These discussions coincided with other consultations the contractor undertook with various schools to see if they could meet C’s needs. None of those consultations resulted in the contractor identifying any other alternative placement for C where she could receive education on an interim or permanent basis.
  6. With regard to C’s therapeutic needs, in August 2020, the contractor agreed it would fund speech and language therapy and clinical psychology for C. Since the beginning of the events covered by this complaint Mr and Mrs B had commissioned these services privately.
  7. After August 2020, Mr and Mrs B say they incurred a further £3155 in clinical psychology costs which were not reimbursed by the contractor.
  8. In October 2020, the contractor also said it would also fund occupational therapy at a rate of £85 per session for C. I saw emails it exchanged with a provider in September 2020, suggesting they could provide a service for C in clinic for this price. But when this was proposed to Mr and Mrs B’s representative they advised that traveling to clinic was not considered “a viable option” for C. And that she currently received provision from a therapist commissioned by Mr and Mrs B who visited the home. I noted the representative enquired further at the end of November 2020 if the contractor was willing to fund this, but I cannot see it replied.
  9. Mr and Mrs B say as a result it was not until January 2021 the arrangement to fund occupational therapy took effect. By then they had paid £2910 in meeting the costs of this therapy; around £1100 of which they had incurred since the SEND tribunal.

Mr & Mrs B’s complaint and responses

  1. In February 2021 Mr and Mrs B’s representative made a complaint to the Council.
  2. The contractor replied and in its initial reply of April 2021, it:
  • acknowledged delaying in issuing a draft EHCP in October 2019, which it attributed to waiting on specialist input from services outside the Council including an occupational therapy report (although the Council also accepted it had been late in commissioning that). It accepted also the draft lacked some important detail;
  • acknowledged also that it had failed to make any interim provision or therapies for C between the end of October 2019 and August 2020 (in respect of speech and language therapy and clinical psychology) and the beginning of December 2020 in respect of occupational therapy;
  • noted however the SEND tribunal did not award costs;
  • said it had tried to learn lessons and would be providing additional training for staff to try and avoid a repeat. It would also review its process when it received a request for assessment from a pupil attending an independent school and review its process when it rejected a request for interim tuition;
  • said it would put a senior manager in charge of C’s case moving forward in recognition of “an extremely poor service” given to C;
  • apologised and offered a financial remedy of £21,000. It said this comprised:
      1. £9600 to reflect 16 months when C did not have any appropriate SEN provision between the end of October 2019 and April 2021 (a payment at £600 a month).
      2. £3600 to reflect its failure to provide speech and language therapy and clinical psychology services between the end of October 2019 and September 2020 – equivalent to an award of £200 per month over nine months for each service failure; a further payment of £2400 for a failure to provide occupational therapy between the end of October 2019 and beginning of December 2020;.
      3. a payment of £300 for failing to adhere to directions from the SEND Tribunal causing delay;
      4. a payment of £3600 to reflect a failure to complete post-16 transfer planning for C;
      5. a payment of £500 for ‘maladministration’ (not specified);
      6. a payment of £1000 for distress and inconvenience.
  1. In May 2021 Mr and Mrs B asked the contractor to review its response. They said the financial remedy did not reflect their costs, nor that the lack of adequate provision for C would extend to July 2021.
  2. In its final response the contractor:
  • agreed any remedy should reflect the lack of adequate provision for C until July 2021. It suggested a total award of £12,600 as a remedy for 21 months of lost provision;
  • said it was not willing to pay for the provision delivered by Provider X as by that time the Council had already told Mr and Mrs B about “more suitable support” available from Provider Y;
  • proposed a total figure for a financial remedy of £20,100 – removing from the earlier offer of a financial remedy the proposed payments to reflect delay in completing post-16 transfer planning (£3600) and for delay in actioning SEND tribunal directions (£300);
  • appended details of all schools consulted between November 2019 and September 2020. Provider Y was not included.

Mr & Ms B’s complaint to the Ombudsman

  1. Mr and Mrs B’s representative says the contractor’s offer of financial remedy is inadequate as it does not reflect the following:
  • the time C spent out of school between March and October 2019;
  • the costs incurred in maintaining C’s place at her independent school and private tuition up to July 2020 and the costs of Provider X after August 2020 (around £36,000);
  • that while the Council had offered to fund occupational therapy at £85 per hour they were paying £120 an hour for this;
  • that overall the Council’s offer left a significant shortfall in the expenses Mr and Mrs B had incurred in paying for clinical psychology, speech and language therapy and occupational therapy.
  1. Mr and Mrs B say the contractor put an over-reliance on the possibility Provider Y could have met C’s needs. They consider it may not have been suitable for C’s needs and that they never received any detailed information about the service it provided.

Findings

Ombudsman’s jurisdiction – time

  1. I note that Mr and Mrs B’s complaint contains elements which are a ‘late complaint’; i.e. they invite consideration of the contractor’s actions during events that took place more than twelve months before Mr and Mrs B complained.
  2. I have decided in this instance that I should exercise discretion to consider all of Mr and Mrs B’s complaints summarised in paragraph 1a) and 1b). That is why I have taken the start date for the events covered by the complaint as March 2019.
  3. I have taken this approach as I consider since this time there has been a continuous sequence of events. I do not consider it would be reasonable or fair to exclude consideration of any event falling during this time, simply because it occurred more than 12 months before Mr and Mrs B complained. Because all the events are linked to the matter of C’s special educational needs and how those should be met. I also consider investigation will be practical given the events are not so long ago the Council will no longer have records or recollections of what took place.

Ombudsman’s jurisdiction – alternative remedy

  1. I explained above the Court decision which says we cannot investigate a matter ‘inextricably linked’ to matters under appeal to the SEND tribunal. I consider this rules out an investigation into whether C should have received education provision and therapies between the end of October 2019 (when Mr and Mrs B appealed the EHCP) and July 2020 (when the appeal concluded).
  2. In making this decision I note the contractor did not name an education setting for C’s education either when it issued the final EHCP or by the time of the appeal. But I do not consider this factor significantly distinguishes the case from that considered by the High Court in 2014. As one matter under appeal before the tribunal was the absence of any named education setting in the C’s EHCP.
  3. I have also noted that in October 2019 the contractor received information saying that C was too ill to attend school. However, I consider the reason for C’s medical absence was inextricably linked to her special educational needs. And the question of how those needs should be met was an issue at the crux of the appeal before the tribunal. So, it would not be possible in this case to distinguish a complaint the Council failed to meet C’s education needs as a child with special educational needs, from one that it failed to meet her needs as a child out of school for reasons of illness or otherwise.
  4. Finally, I have noted that notwithstanding the limitations on our investigation, the contractor has acknowledged fault for not securing education for C between October 2019 and July 2020 as part of its response to the complaint. It can choose to do this. But this does not alter the position on our jurisdiction.
  5. It flows from what I have said above that I do not consider it is open to me to ask the Council to provide any remedy to Mr and Mrs B for costs they spent on C’s education and therapy between the end of October 2019 and July 2020. Again, a complaint in these terms cannot be distinguished from one asking us to consider a failure by the Council to make education or other provision in this time.

Complaint about lack of provision March to October 2019

  1. I have been provided with no records, from either Mr and Mrs B or the Council, that enable me to find the contractor knew of C’s absence from school in March 2019. The earliest record I have seen that confirms her absence is dated June 2019.
  2. I have therefore considered whether the contractor was at fault for not doing more to secure an education provision for C between June and October 2019 only. Should the contractor have treated C as a child unable to attend the school because of illness or otherwise?
  3. I find there was no medical evidence available to the contractor to support the view that C was too ill to attend school before October 2019. Although I note the view had been expressed that C could not attend school, for reasons linked to her special educations needs. This could also have been read that she was therefore medically unfit to attend school. It is also clear the contractor knew C was out of school before October 2019.
  4. Between June and October 2019 I find no evidence that shows the contractor checked what education C could receive, or was receiving, while her case was assessed for an EHCP. The contractor knew C received support from various professionals and there are references that show there was an aspiration that C should return to school. But I have seen nothing resembling a plan which showed how that might be achieved. However, in fairness it may have been too early to have a plan, given the ongoing EHCP assessment and because C’s absence was clearly linked to her special educational needs under assessment.
  5. But I consider nonetheless it was still fault for the Council not to have addressed itself to the question of what education C was receiving once it knew she had been out of school for more than 15 days. So, C suffered the injustice of having no consideration given to her receiving any education provision for several weeks before her final EHCP was issued. Although I consider providing education for C in this period would not have been a straightforward matter.
  6. I will expand further on this matter below, when discussing what action the Council and its contractor have agreed to provide to remedy this injustice.

Complaint about provision from July 2020 onward and the Council’s offer of remedy

  1. I have considered next how the contractor went on to meet C’s needs once the SEND tribunal issued a final EHCP. The plan put an onus on the contractor to secure home tuition for C in the first instance, as well as ensure she received various therapeutic interventions.
  2. In terms of the education provision, I note Mr and Mrs B have only asked me to consider the period between August 2020 and January 202, during which time they commissioned Provider X to give tuition to C. I note their decision to use this provider appears to run contrary to the view of the tribunal, which explained its reservations that this provider would be the best fit for C’s needs. This was after taking account of the views of those professionals supporting her.
  3. But that said, it was clearly not envisaged that in September 2020 C would simply be able to return to a school or college setting, even with small group teaching. The EHCP explained C would need a period of home tuition first, building up to a gradual introduction of small group teaching.
  4. I stress the onus was on the contractor to arrange that provision. But I have seen little evidence of any efforts that it made to do so. It had some discussions with Provider Y during Autumn 2020 and relayed some of the detail of those to Mr and Mrs B’s representative. But as it now acknowledges at no point did it make an offer of provision from that provider or any other in that time. So, the contractor was at fault here.
  5. In these circumstances it is more understandable Mr and Mrs B reverted to using Provider X, whose ability to deliver one-to-one tuition to C was not disputed by the SEND tribunal.
  6. There was also an onus on the contractor to begin meeting the costs of any therapeutic support needed by C, or at least in agreeing it would pay for that support arranged by Mr and Mrs B. There was no significant delay in agreeing the cost of speech and language therapy or clinical psychology for C. I have gone through the invoices provided by Mr and Mrs B for the former and find none of these cover a time after the SEND tribunal reached its findings. I find no fault therefore in the contractor failing to meet any invoices for speech and language therapy.
  7. With regard to the invoices from clinical psychologists the picture is more complicated. Mr and Mrs B have provided invoices detailing £3,305 which post-date the tribunal. However, I am not persuaded that all of these relate to services provided for C in line with her EHCP, which envisaged C would have a weekly session with a clinical psychologist. However, I accept that Mr and Mrs B have an arguable case that somewhere in the region of £1000 of these costs were not recompensed by the contractor, which they might reasonably have expected based on C’s EHCP. So, there was fault here.
  8. I also find there was a delay in the contractor agreeing to fund C’s occupational therapy. It seems some of this was due to the contractor enquiring about whether it could secure a better value for money service for C’s occupational therapy. It identified an occupational therapist whose services would cost less than that secured by Mr and Mrs B. But I cannot find evidence that it was viable this therapist could work with C, given her limitations on attending appointments outside the home. And even if I considered the contractor could justify the lower price, it did not begin payments for occupational therapy until 15 January 2021. Mr and Mrs B identify they spent £1152 on occupational therapy between August 2020 and 31 January 2021 and none of this was paid by the contractor. I consider that a fault.

Considerations on injustice and remedy

  1. I have considered next what injustice was caused by these faults. I find the following:
  • First, the onus was left on Mr and Mrs B to continue making education and therapeutic provisions for C that the Council should have been arranging.
  • Second, because the Council failed to make such arrangements, there is also a degree of uncertainty, which we regard as a form of distress. Because while it is clear Mr and Mrs B have made significant efforts to meet C’s education and support needs while she was out of any education institution it is possible that support was sub-optimal. This finding also extends to that period of several weeks at the beginning of the Autumn term 2019, when the Council knew C was out of school but failed to make sufficient enquiries to establish what education she was receiving or may have been capable of receiving.
  1. What is the correct approach therefore for remedying this injustice? The contractor based its recommendation on Ombudsman guidance for a loss of service when a child does not receive a full-time education because of fault by an education authority. It based its award on the highest figure we usually recommend (£600 a month). But we would usually only recommend this figure when a child went without education. That was clearly not the case here. Because Mr and Mrs B made provision for C, I am not persuaded she suffered significant detriment to her education by being out of school or college between August 2020 and January 2021. Or at least a significant detriment over and above what would be inevitable as a result of her special educational needs making her unable to attend school or college.
  2. However, I did suggest above that C’s education may have been sub-optimal for the August 2020 to January 2021 period. In which case I consider it reasonable to make an award towards the lower end of the scale used in our remedies guidance at £200 a month. I consider a fair award for C’s loss of provision for this period would be £1000 therefore. I add another £400 to this amount to reflect any loss of provision before October 2019 taking account that realistically I consider much of this was unavoidable due to C’s special educational needs.
  3. I consider the correct approach to remedying this complaint must also look at Mr and Mrs B’s quantifiable losses. Our remedies guidance makes clear that we can consider making recommendations to recompense parents who spend money on education or therapeutic provision which an education authority should have met. However, we do also reserve the right to reduce an award for those expenses if we consider they are excessive.
  4. I have set out above that Mr and Mrs B spent £29000 on C’s education tuition between August 2020 and January 2021. I consider this was excessive, noting that they secured satisfactory tuition to support C during her GCSEs for around 20% of this cost and for a longer period. In my view therefore a satisfactory remedy in this case would be for the Council or its contractor to pay a percentage of these costs. I consider around 50% would be reasonable or £14,500.
  5. In addition, I identified above around £2000 in unpaid therapeutic tuition. It is also part of Mr and Mrs B’s injustice they have not received repayment for this.
  6. In addition, the contractor has already proposed a figure of £1500 to reflect any distress caused to Mr and Mrs B and C. I consider this appropriate and consistent with our published guidance on remedies.
  7. I also note the contractor agreed to pay £3600 for C’s loss of provision to cover the period February to July 2021. I have not investigated what happened during this period as the complaint made by Mr and Mrs B did not invite me to. But as the Council considered it reasonable to make this award and it is not outside our jurisdiction to consider it, I see no reason to disturb it.
  8. I therefore consider a satisfactory financial remedy for Mr and Mrs B’s complaint should involve the offer of payment by the Council or contractor of £23,000 (£1000 + £400 + £14500 + £2000 + £1500 + £3600)

Agreed action

  1. The Council and its contractor accept these findings. To remedy the injustice caused to Mr and Mrs B and C, the Council has agreed that within 20 working days of this decision it will ensure that its contractor:
  • apologises to Mr and Mrs B and C accepting the findings of this investigation;
  • agrees to pay a total of £23,000 as a financial remedy for the complaint.
  1. In addition, the Council has agreed its contractor will seek to learn lessons from this complaint. I welcome the contractor’s comments on writing to Mr and Mrs B at the first stage of the complaints procedure where it set out certain improvements (see paragraph 42 above). It has agreed in addition that will also ensure relevant staff are briefed at a team meeting or equivalent about the findings in this case. That briefing must include a reminder that staff must act promptly on receipt of a SEND tribunal decision to put in place the provision outlined in a final amended EHCP.

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Final decision

  1. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr and Mrs B and C. The Council has agreed action that I consider will remedy that injustice. Consequently, I can complete my investigation satisfied with its response.

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Parts of the complaint that I did not investigate

  1. I did not investigate that part of the complaint summarised at paragraph 1c) above as I did not consider this matter separable from the other parts of Mr and Mrs B’s complaint. This is because their requests for information cross-referenced other parts of the complaint. In addition, I noted Mr and Mrs B and C would have the right to request information under data protection and freedom of information legislation; something giving rise to a right to appeal to the Information Commissioner’s Office, if dissatisfied with how such a request was dealt with.

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Investigator's decision on behalf of the Ombudsman

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