Summary: Mrs X complained about delays in providing special educational needs support to her daughter, Y, and failings in the Council’s complaints handling. The Council was at fault. This caused frustration for Mrs X and missed provision for Y. The Council should apologise, make payments to reflect the injustice caused, and take action to improve its timescales for responding to communications from service users.

The complaint

1. Mrs X complained the Council:
1. Delayed in obtaining a sensory assessment for her daughter, Y;
2. Delayed in making payments for swimming and an exercise bike from Y’s personal budget;
3. Failed to respond to her complaint dated 21 July 2021 and failed to respond to a separate complaint dated April 2022 at stage 2 of its complaints process.
2. Mrs X said the failures caused frustration, and avoidable time and trouble pursuing the Council. In addition, the family were out-of-pocket in relation to the delayed payments. She also said the failings meant Y missed out on support for her sensory needs as set out in her Education Health and Care (EHC) plans between April 2021 and April 2022.

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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. 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

5. I considered:
• The information Mrs X provided and discussed the complaint with her;
• The information the Council provided in response to my enquiries;
• Relevant law and guidance, as set out below; and
• Our guidance on remedies, available on our website.
6. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Special educational needs (SEN)

7. A young person with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the young person’s needs and what arrangements should be made to meet them.
8. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether educational providers are providing all the special educational provision for every student with an EHC plan. However, councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

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

9. Councils can agree to a personal budget instead of arranging specific provision itself. This means funds are made available to the parent or carer to arrange the provision or purchase the specified equipment.
10. There is a right of appeal to the SEND tribunal in relation to the content of an EHC plan and the educational placement named in the plan. 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. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Complaints handling

11. This Council’s complaints policy says it aims to respond to complaints at stage 1 as quickly and informally as possible, and within 20 working days. If the complainant remains unhappy, they can ask for it to be considered at stage 2, and it will:

“review your complaint and advise you within 5 working days whether the complaint will be progressed to stage 2. If we do decide to put the complaint forward to stage 2 this will involve some-one independent of the service you are complaining about, looking into your outstanding issues and reporting to the Director or designated Assistant Director responsible”.

12. It also says:
• “In most cases, we’ll give you a full response to your complaint within 20 working days. If we need more time to provide the response, we will contact you”: and
• “We will look into your complaint thoroughly and fairly”.

What happened

a) Delay in obtaining a sensory assessment

13. In September 2020 Y moved to post 16 education at a college. She had an Education, Health and care (EHC) plan, which was reviewed in January 2021 by the college. The review indicated that an assessment of her sensory needs by an occupational therapist (OT) was needed. In response to my enquiries, the Council said it understood the college would be arranging the assessment.
14. Following this, Y decided not to continue with the college course and the Council issued an amended EHC plan in early April 2021, which the family appealed. In June 2021, as part of the appeal, an educational psychologist confirmed a sensory OT assessment should have been completed, in line with earlier plans. The Council issued a further amended plan in late July 2021, naming a specialist education provider and Y started with the new provider in September 2021. The appeal was concluded in early November 2021 and the Council issued a further amended plan in December 2021.
15. Organisation A was identified to carry out the sensory assessment. The Council asked it to provide a quotation in early August 2021. The Council asked again in early September and received the information on 9 September. The Council provided forms for Mrs X to complete in early October, which Mrs X returned directly to Organisation A. Organisation A offered an appointment in mid November but Mrs X advised the date would not work, and a further appointment for the assessment was arranged for 29 November.
16. Organisation A said it would issue its report three weeks after the assessment. Mrs X asked for an update from Organisation A, which told her the report could not be issued because it had not been paid. Mrs X contacted the Council about this on 22 December 2021. The Council did not respond, and Mrs X resent the email on 7 January, in case it had been overlooked due to the Christmas break. The Council confirmed it would look into the matter.
17. Mrs X heard nothing further and raised it with us as part of a separate complaint. On 25 January, we asked the Council to try to resolve the matter. The Council could not trace receipt of an invoice from Organisation A, so it contacted them the same day. Organisation A said it had sent an invoice in December 2021 but could not confirm who it was sent to within the Council. Organisation A resent the invoice on 26 January 2022. The Council approved and made the payment. It sent a further email to Organisation A on 10 February to say payment had been made and asked when the report would be sent. Organisation A provided the report on 15 February.
18. Mrs X complained about the delay in obtaining the sensory assessment in April 2022. The Council responded in May. It accepted there was a lengthy delay in processing the assessment and payment paperwork, for which it apologised. It said, whilst not an excuse, the delays were due to staff absence, staff turnover and increased demand on the team. It appreciated the delay was frustrating for Mrs X and that updates would have been helpful.
19. The delay in obtaining the sensory assessment meant a consequent delay in arranging OT support, which was not in place until April 2022.

b) Delay in making payments from Y’s personal budget

20. As part of the appeal decided in November 2021, the Council agreed to include in Y’s EHC plan weekly swimming sessions or the provision of an exercise bike as set out in a physiotherapist report dated June 2021. The amended plan, dated December 2021, stated this provision could be delivered using a personal budget.
21. Mrs X said the Council agreed to fund the swimming sessions on 23 November 2021. In the event Y was not able to access the swimming sessions and stopped after five sessions. The total cost for those sessions was £470.50, including travel costs.
22. On 7 February, Mrs X asked the Council to fund an exercise bike. She provided information about the cost (£209.99) on 28 February and the Council agreed to fund this on 22 March 2022. She accepted this would cause a short period without provision.
23. Mrs X complained on 20 April 2022. She said:
• There was a delay in making payment for the swimming sessions between 23 November 2021 and 25 March 2022; and
• There was a delay in arranging payment for the exercise bike, which she had ordered on 31 March 2021, but had not yet been paid for.
24. The Council responded on 10 May 2022. It said:
• Where requests are made for payments from personal budgets, or changes are made to how the personal budget is used, this must be approved by its specialist education panel;
• The Christmas period meant it took longer for the payment for swimming lessons to be approved and paid;
• In relation to the exercise bike, timescales for submitting paperwork to its panel, approving the expenditure and making payment were “within expected timescales”, although it accepted there was a delay in communicating with Mrs X due to staff annual leave.
25. Mrs X remained unhappy. She said that, as a result of the delay in arranging payment, there was a six week period with no provision, for which the Council had not apologised.
26. The Council responded on 15 June 2022. It acknowledged it had taken too long to arrange the payments and said it would review its processes.
27. In response to my enquires, the Council said it received information about the cost of swimming sessions, including travel costs, on 10 January and the payment was approved on 24 January. On 7 February Mrs X asked to make a change to the budget. The Council then had to calculate the total costs for swimming. It waited for details of the exercise bike cost before arranging payment to make sure that Y was definitely making the change. Payment was made for the swimming sessions on 23 March. Costings for the exercise bike were received on 28 February, considered by its panel on 21 March and payment was made on 26 April. The Council acknowledged a delay in dealing with the paperwork for this payment.

c) Complaints handling

28. Mrs X complained to the Council in July 2021. She said that “across the offices, I am getting no response from family co-ordinators and no adherence to deadlines set by other services with regards to support for my children”. She was referring here to support she was seeking for Y and also for her son, Z, who also has an EHC plan. She provided details of a number of emails in relation to each of her children in June and July 2021 that had not been responded to or where there was a delay in responding.
29. The Council responded on 22 July 2021. It said it would deal with the matter as a complaint as Mrs X had requested but acknowledged the level of communication was “nowhere near good enough”. It asked Mrs X what would be useful for her and her children at that point. Mrs X said she wanted the appeal concluding in relation to Y and set out actions needed in relation to Z. The concerns about support for Z will be considered by the Ombudsman separately.
30. Mrs X contacted the complaints team again in late August as she had not heard further about the complaint. The Council responded on 24 September. It said:
• It apologised for the poor level of communication and its delay in responding.
• Its SEND team was experiencing high demand and was trying to balance conflicting priorities. It would endeavour to improve its response times.
• It noted the SEND team was now in more regular communication and hoped it could continue to work in a positive way to support Mrs X and her family.
31. The 24 September email was sent without a letter heading and without the usual information about escalating to stage 2 of the complaints process if the complainant remained unhappy. Mrs X said this meant she did not realise this was a complaint response. In her complaint to us, Mrs X said it was not an acceptable complaint response and was late. In particular, the response did not address the communication issues in detail, which meant she considered the Council had not investigated her complaint thoroughly in line with its policy. She also said communications had not improved following the complaint.
32. Mrs X made a separate complaint on 20 April 2022 about the delay in obtaining the sensory OT assessment, and the delays in making payments for swimming sessions and the exercise bike. The Council responded on 10 May. Mrs X asked it to consider the complaint further at stage 2 on 12 May. The Council responded on 19 May. It said it had liaised with the relevant team to consider how to resolve the matter as efficiently as possible and the relevant head of service would respond further within 10 working days. Mrs X said she wanted a stage 2 response in line with the Council’s complaints policy, and the Council responded it was exercising its discretion not to do so in order to provide a more proportionate response.
33. The Council sent a further response on 15 June.
34. In response to my enquiries, the Council said its policy allows it some flexibility to consider the best way to resolve a complaint. On this occasion, it decided it was appropriate to refer the matter to its new Head of Special Educational Needs (SEN) so they could address Mrs X’s concerns.

My findings

a) Delay in obtaining a sensory assessment

35. The Council accepted there was a delay in obtaining the sensory assessment, which was fault.
36. Mrs X says the delays meant a consequent delay of 12 months in arranging OT support for Y following the annual review in January 2021. However, not all the delay in that period was due to Council fault.
37. The Council said it initially understood the college would be arranging the sensory assessment. I have not seen evidence the Council confirmed this with the college. That may have been the position in January 2021, but circumstances changed when Y decided not to pursue the course.
38. Shortly after that decision, the Council issued an amended plan, which was appealed, and the issue of the sensory assessment was then taken forward as part of the appeal. It is likely the appeal added to the delay, but I cannot take into account the appeal period.
39. There was some delay in obtaining a quotation from Organisation A between early August and early September 2021, but I cannot hold the Council responsible for Organisation A’s delay in providing that information. There was a further delay in December, but I cannot hold the Council responsible for a delay in receiving the invoice. There was a delay, however, between Mrs X drawing the Council’s attention to this on 22 December and it making contact with Organisation A on 25 January. There was no undue delay in arranging payment after receiving the invoice on 26 January.
40. Therefore, although it took a full year to obtain the sensory assessment report, which caused frustration for Mrs X and a consequent delay in arranging OT support for Y, I cannot hold the Council responsible for all the delays in that period. There was no delay in arranging the OT support after the sensory report was issued. However, on balance, but for the Council’s delays, the support could have been arranged three months earlier.

b) Delay in making payments from Y’s personal budget

41. The Council agreed to pay for swimming sessions, including travel costs, in late November 2021. It received details of the costs on 10 January but did not arrange payment until 23 March. This delay was fault.
42. Mrs X asked to change from swimming to an exercise bike on 7 February. The Council received details of the cost of the exercise bike on 28 February but did not arrange payment until 26 April. This delay was fault. Mrs X purchased the exercise bike for delivery in early April 2022.
43. These faults meant Mrs X was out-of-pocket. In addition, Mrs X said Y missed provision for nine weeks in total, although she acknowledged the change from swimming to an exercise bike would result in a short period without provision. On balance, I find Y missed provision for an additional four weeks as a result of the Council’s delay.

c) Complaints handling and poor communication

44. Mrs X complained in July 2021 about the Council’s failure to respond to some emails and its delay in responding to others. The Council accepted its communication was poor, which was fault.
45. Having agreed to consider this as a formal complaint, the Council should have issued a full complaint response within 20 working days. Its response, in September 2021, was late. Whilst it apologised for the poor communication and said it would endeavour to improve response times, it was not clear that this email was a complaint response. It did not add anything to the July email, except to say it would try to make improvements. It did not explain what action it would take to achieve that. It did not set out what action Mrs X could take if she remained unhappy. This was not an appropriate complaint response and was fault.
46. Although this caused Mrs X some frustration, she had made other complaints so she was aware she could ask the Council to consider the complaint at stage 2 and that she could complain to us.
47. In relation to the complaint in April 2022, the Council’s policy allows it some flexibility to decide whether to consider a complaint at stage 2. I am aware Mrs X made other complaints about the support provided to her children. In the circumstances, it was appropriate for the Council to ask its new Head of SEN to consider how her ongoing concerns could be addressed and was not fault.

Remedy

48. In response to my enquiries, the Council offered to pay Mrs X £300 for the distress and time and trouble caused by the failings it accepted. I am satisfied this is an appropriate financial remedy for the injustice Mrs X experienced. However, it does not remedy the lack of provision for Y, about which I will make a further recommendation.

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Agreed action

49. Within one month of the date of the final decision, the Council will:
• Apologise to Mrs X for its delay in obtaining the sensory assessment, its delay in making payments to her, its poor communication and the failings in its complaints handling;
• Pay Mrs X £300 for the frustration, additional time and trouble caused, and for the period she was out of pocket in relation to the payments; and
• Pay Y £400 for the missed provision as a result of its delays.
50. Within three months of the final decision, the Council will:
• Carry out an analysis to identify how quickly its SEN team responded to communications from service users in the six month period to the date of the final decision; and
• Either develop a plan of action to ensure it responds within its published timescales in future or reviews its policy to ensure its published timescales are realistic and achievable.
51. The Council will provide us with evidence of the actions taken.

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Final decision

52. I have completed my investigation. I found fault leading to personal injustice. I recommended action to remedy that injustice and prevent recurrence of the fault.
53. 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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Investigator's decision on behalf of the Ombudsman