Summary: Ms X complained the Council did not properly consider her request for a personal budget to provide education for her son, Mr Y and failed to implement the provision set out in his Education, Health and Care plan between November 2021 and July 2022. There was no fault in the Council’s decision not to provide a personal budget for direct payments. However, the Council failed to provide most of the special educational provision for Mr Y. The Council agreed to pay Mr Y £2800 to recognise the education he missed, reimburse the costs Ms X accrued in arranging some of Mr Y’s provision and pay her £500 to recognise the time and trouble caused to her by the Council’s fault.

The complaint

1. Ms X complained the Council did not properly consider her request for a personal budget to provide education for her son, Mr Y and failed to implement the provision set out in his Education, Health and Care (EHC) plan between November 2021 and July 2022. Ms X said the Council has failed to meet its public sector equality duty and has caused Mr Y to miss education. This caused her and Mr Y distress and Ms X has had to pay for the provision herself.

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What I have investigated

2. I have investigated the special educational provision arranged by the Council and its decision following Mr Y’s request for a personal budget and direct payments made after the SEND tribunal. I have not considered request for direct payments before that for reasons explained in paragraph 70.
3. Ms X complained to us in March 2022. However, I have considered the educational provision from November 2021 to the end of the academic year in July 2022. This is because the matter is one of continuing injustice.

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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. 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)
6. 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)
7. 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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How I considered this complaint

8. I considered the documents provided by Ms X and discussed the complaint with her on the phone.
9. I read the documents the Council provided in response to my enquiries.
10. I considered the Special Educational Needs (Personal Budgets) Regulations 2014, and our Guidance on Remedies which is available on our website.
11. Ms X 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

Relevant legislation

Education, Health and Care Plans

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the person’s needs and what arrangements should be made to meet them.
13. 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.
14. There is a right of appeal to the SEND Tribunal about the content of the final EHC plan. An appeal right about the content is only engaged once a final EHC plan has been issued. Once the Tribunal has ordered a council to amend the content in the EHC plan, it must issue the amended plan within five weeks.
15. 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).

Personal budgets

16. A personal budget is an amount of money the council identifies as necessary to deliver the provision set out in an EHC plan where the parent or young person is involved in arranging that provision. The young person or parent has a right to request the personal budget and the council must prepare a budget. Personal budgets must be focussed on securing the provision agreed in the EHC plan.
17. A direct payment is a payment made to the parent or young person so they can arrange all or part of the provision themselves, rather than the council doing this for them.
18. A council can only make direct payments when it is satisfied that:
• the recipient will use them to secure the agreed provision in an appropriate way;
• they will act in the best interest of the young person when securing the proposed agreed provision;
• the direct payments will not have an adverse impact on other services the council provides for young people with EHC plans; and
• securing the provision by direct payments is an efficient use of the council’s resources. (The Special Educational Needs (Personal Budgets) Regulations 2014).

Equality duty

19. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
20. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The protected characteristics include age and disability.
21. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010.

What happened

22. Ms X’s adult son, Mr Y, has additional needs that require special educational provision. The Council issued an Education, Health and Care (EHC) plan for Mr Y in July 2020 naming an educational placement. In September 2020 the placement broke down.
23. Mr Y, with the support of Ms X and a legal representative appealed to the SEND Tribunal about sections of the EHC plan including the named placement and section F which specified the provision he needed.
24. The tribunal hearing was significantly delayed by the impact of COVID-19. In the interim Ms X supported Mr Y to identify and attend various educational experiences. Ms X stated Mr Y was involved with volunteering and work experience, received music lessons and was completing an arts qualification by September 2021.
25. Mr Y was 22 years old by October 2021 when the tribunal upheld his appeal. It ordered the Council to amend section F in Mr Y’s EHC plan and to name education other than at school (EOTAS) rather than a school or college. The tribunal noted the EOTAS status was intended to support Mr Y in returning to a mainstream provision.
26. The Council issued Mr Y’s amended EHC plan in November 2021. The EHC plan said Mr Y needed a bespoke educational package of 25 hours per week higher level teaching assistant (HLTA) support. The HLTA would support Mr Y with:
• Undertaking academic study and lessons
• Exploring educational and training opportunities
• Doing a daily activity programme for 30 minutes a week devised by speech and language (SAL) therapist
• Continuing his current volunteering and work experience opportunities and help him to explore and engage with new volunteering and work experience sessions in the community
• Other holistic activities such as discrete support in the community, time management skills and engaging with therapies.
27. The EHC plan specified the provision Mr Y needed. It included the following each week:
• 60 minutes maths skills
• 20 minutes spelling skills
• 30 minutes with a qualified teacher on Bronze Arts Award
• 30 minutes music lesson
• 45 minutes SAL therapy with a qualified therapist (and the HLTA would initially receive one-hour weekly training from the therapist for 6 weeks)
• 15 minutes SAL therapy with the HLTA
• 1 hour communication development programme delivered by SAL therapist (for 6 weeks)
• 30 min group therapy with a SAL therapist or counsellor
• 30 Mins OT support for sensory and physical difficulties
• 30 mins OT support on life skills
• 60 mins executive function intervention programme
28. The day after the tribunal’s decision Mr Y’s legal representative requested a personal budget and a direct payment to Ms X. This was to enable Ms X to secure the agreed special educational provision outlined in the EHC plan.
29. The Council consulted a tutoring service in October 2021. The Council provided it a draft copy of section F of Mr Y’s EHC plan. The tutoring service said it could provide the provision specified but had previously tried to engage Mr Y in tutoring and had not been successful. It did not say how it would provide the provision and asked the Council for a timetable to understand what was required. The Council advised it to speak with Mr Y.
30. The Council issued the finalised EHC plan for Mr Y in the middle of November 2021. At the same time the Council declined to provide a personal budget. It said it did not consider it was appropriate for Ms X to receive the personal budget as it believed she intended to use it to pay herself to deliver some of the EOTAS package.
31. The tutoring service contacted Ms X to arrange a tuition session for Mr Y. Ms X explained Mr Y required support attending work experience two days a week. The tutoring service asked the Council if it was expected to chaperone Mr Y. The Council stated the tutor should only offer hours of tuition and not to chaperone.
32. The tutoring service contacted Mr Y and said it would provide some tuition, life skills and community-based work in the local area. It said tutors would not be able to accompany him to work experience or volunteering. Ms X replied on Mr Y’s behalf and said they wanted to await a final decision about provision of direct payments before deciding how to move forward.
33. Ms X asked the Council to review its personal budget/direct payments decision. Ms X said she and Mr Y believed the decision to refuse it to be unreasonable and not in line with the SEN regulations about personal budgets.
34. A SAL therapist contacted Ms X in December 2021 to arrange an initial online therapy session with Mr Y. Ms X responded and stated they were waiting for the outcome of the Council’s review of its personal budget decision. She said the therapy would be able to progress once the Council had arranged the HLTA.
35. The Council contacted three OTs, two in November and one in December 2021. They were not able to provide a service.
36. Ms X complained to the Council in December 2021. She complained the Council had failed to provide the special educational provision outlined in the EHC plan and failed to follow process in making its decision about personal budget/direct payments. She said the tutoring service the Council had arranged could not provide a tutor who could carry out the HLTA role as specified in Mr Y’s EHC plan.
37. Ms X employed an educational support worker to support Mr Y to attend his work experience and volunteering sessions in January 2022, as she was no longer able to do so.
38. The Council reviewed its decision on Mr Y’s personal budget. It considered professional reports by the OT and educational psychologist. It reviewed Mr Y’s EHC plan, Mr Y and Ms X’s representations and the Council’s personal budget policy. It decided the Council could not adequately ensure the quality of the specialist provision Mr Y would be receiving without incurring extra cost, if arranged by Ms X. It decided a direct payment for Mr Y would not be the most suitable and efficient use of its resources in relation to his education.
39. The Council provided a stage one response to Ms X’s complaint in January 2022. It apologised for the delay in providing its response and explained it was caused by the Council officer taking compassionate leave. It said the provision it offered was suitable to meet Mr Y’s needs and it would not provide Ms X with direct payments. It said:
• The tutor company could provide 25 hours HLTA support
• It intended for a music and arts service to provide the music provision (and it could provide further details if Ms X would like them)
• It had a SAL therapist on standby to provide the SAL therapy
• It had been unable to commission an OT
40. The Council contacted Ms X and asked if the SAL therapist could make contact to begin the provision. Ms X stated the therapist would need to liaise with the HLTA which the Council had not provided.
41. Ms X complained to the Council in February 2022 at stage two. She said the Council had not:
• Followed the correct process in making its decision about the direct payment of a personal budget, or in reviewing that decision
• Properly investigated her complaint about the lack of special educational provision
• Considered the EOTAS package required co-ordination of provision in order for it to be successful. This should be the role of the HLTA which the Council had not provided
42. Ms X asked the Council to provide a number of remedies to her complaint which included a financial remedy for the loss of income she had suffered as a result of needing to support Mr Y while the provision was not in place. Ms X also asked the Council to reimburse her for the amounts she had spent on music lessons, work experience placement and the educational support worker she had put in place in the absence of the Council providing it.
43. The Council met with Mr Y and Ms X and the tutoring service in March 2022 to discuss the provision. Ms X set out that Mr Y needed support to attend the volunteering and work experience specified by the tribunal:
• Work experience (two days a week) to include travel training, life skills, social communication and emotional support
• Volunteering (one afternoon)
• Music provision for arts award
• Liaising with the SAL therapist and OT when they had been arranged
44. The Council stated it would not be possible to have 25 hours HLTA support along with the activities outlined. The Council suggested the tutoring service could contact Mr Y to discuss what support he wanted from the tutoring service, and it could support with the therapies once they were in place.
45. Following the meeting Ms X asked the Council to fund the provision she had put in place for Mr Y from his personal budget.
46. The Council responded to Ms X’s complaint at stage 2 in March 2022. It said:
• The tutors it intended to commission to provide the EOTAS were appropriately qualified
• It had been unable to commission an OT
• It said educational provision and SAL therapy was available to Mr Y, but he had not taken it up
47. Ms X was dissatisfied with the Council’s response and complained to us.

Events occurring after complaint to us

48. In April 2022 the Council reviewed Mr Y’s EHC plan. Updates on Mr Y’s progress were provided by the educational support worker, music teacher, and the volunteering and work experience placements arranged by Ms X. It recorded that Mr Y was making good progress. It decided the EHC plan was appropriate and did not need to be amended.
49. Ms X told me Mr Y had tried working with the tutoring service previously and had not managed to engage with it. She also stated that online SAL therapy would not meet Mr Y’s needs. She said she had supported Mr Y, paid for the provision and then employed the educational support assistant to support Mr Y to attend volunteering and work experience when she was no longer able to do so.
50. In response to my enquiries the Council stated Mr Y’s work experience and volunteering were not specified in Section F of Mr Y’s EHC plan and it did not regard them as special educational needs provision.
51. The Council said it had made arrangements for OT and SAL provision for Mr Y from September 2022. It also said it intended for Mr Y to join the educational pathway at the work experience provider Ms X had previously arranged for him.

My findings

52. The Ombudsman is not an appeal body, and I cannot question the Council’s decision just because Ms X does not agree with it. We consider whether there was fault in the way the Council made its decisions. If there was no fault in the decision making, we cannot question the outcome.

Personal budget

53. The Council considered the request for a personal budget and direct payments in October 2021 and reviewed its decision when requested to do so. The Council took two months to review its decision but provided an explanation for the delay and apologised for this, which is an appropriate remedy. The Council outlined the information it considered and explained the reasons it refused the request to Ms X. The Council acted in line with the guidance and there is no fault in the way it made its decision to refuse the direct payment request.

HLTA provision

54. The Council provided a copy of section F of the EHC plan to the tutoring service which set out the role of the HLTA and the provision. Although this was not the final amended version it was sufficient to understand the provision required. The Council said the tutoring service should only provide hours of tuition and not accompany Mr Y to his work experience and volunteering placements, but Mr Y’s EHC plan does not refer to tuition. The plan states Mr Y should be supported to continue his current volunteering and work experience opportunities, and the tutoring service proposed by the Council did not enable this. That was fault.
55. The Council met with Mr Y and Ms X in 2022 and stated it could not provide the 25-hour HLTA support alongside Mr Y’s work experience and volunteering. At the time Mr Y was engaged in those activities for two and half days a week and his EHC plan specified the HLTA should support him to continue those activities. Mr Y had previously tried to engage with the tutoring service and had not been able to. The Council did not set out how the tutoring service would meet Mr Y’s needs and it has failed to demonstrate this to me during my investigation. That was fault.
56. The failure to provide HLTA support as set out in the EHC plan between November 2021 and July 2022 identified in the above paragraphs was fault. The faults meant Mr Y missed the opportunity to develop vital life and communication skills and Ms X had to pay for the work experience placement and support him to attend herself, and then to pay an educational support worker to support Mr Y when Ms X was no longer able to do so.

Music provision

57. The Council stated it intended to provide the music provision set out in the EHC plan in January 2021, however it has not provided any evidence of it arranging or informing Mr Y and Ms X about that provision. That is fault and meant that Ms X continued to arrange and pay for Mr Y’s music and arts award lessons.

Therapy provision

58. Part of the HLTA role was reliant on input from other services including SAL therapy and OT. Ms X stated the therapy services could not be in place until the Council arranged the HLTA role. The Council suggested it would arrange the HLTA role once the therapies were in place. There is nothing in the plan which specifies in which order provision should be put in place and it is reasonable to expect some flexibility while a number of services are co-ordinated.
59. The Council arranged a SAL therapist to provide SAL intervention to Mr Y. Ms X initially asked the therapist to wait while the Council reviewed its decision on Mr Y’s personal budget. The Council offered SAL provision again and Ms X stated it could not proceed until the HLTA was in place. There is nothing in the EHC plan which states online therapy is not appropriate for Mr Y. The Council offered SAL provision and there is no evidence that provision was inappropriate for Mr Y’s needs, as such there is no fault in the Council’s actions. However, the Council’s failure to provide the HLTA provision was fault and meant there was no one to liaise with the SAL therapist and provide the HLTA-led SAL therapy for Mr Y.
60. The Council recognised in its stage two response it had not been able to commission an occupational therapist to provide that element of Mr Y’s plan. It did not make any attempt to remedy the injustice caused to Mr Y by that failure. The records show the Council made three attempts to source an OT at the end of 2021 but made no further enquiries after that. The failure to provide the OT support was fault and means that Mr Y missed out on the OT provision in his plan from November 2021 until July 2022.

Equality duty

61. Although I have found fault in the Council’s actions in providing the special educational provision, I have not found any evidence that fault was as a result of the Council failing to consider its equality duty towards Mr Y. The Council was aware of Mr Y’s disabilities and his educational needs and there is no evidence of direct or indirect discrimination.

Injustice and Remedies

62. As a result of the Council’s faults Mr Y did not receive the full provision outlined in his EHC plan. The EHC plan identified significant support for an adult of 22 years with the intention of returning to mainstream education. The injustice to Mr Y is reduced due to the actions of Ms X. Had Ms X not supported Mr Y to attend his volunteering, work experience and music lessons he would have received none of the provision in his plan, other than the direct SAL therapy.
63. Mr Y asked the Council for a personal budget so Ms X could arrange the EOTAS. The Council declined and I did not find any fault in that decision. Ms X asked the Council to fund the provision she had arranged in March 2022 and the Council stated it believed the tutoring provision it offered was appropriate, my finding is that it was not. The provision that Ms X funded between November 2021 and July 2022 was some of that specified in the EHC plan as ordered by the tribunal. Ms X provided copies of the invoices she paid to fund Mr Y’s work experience, music lessons and the educational support worker to support Mr Y to attend those activities. The invoices total £5454.15 for the relevant period.
64. Although Ms X arranged an educational support worker, they did not provide the 25 hours HLTA support a week Mr Y was assessed as needing. At a maximum the worker provided 10 hours and 15 minutes. Therefore, Mr Y missed no less than 14 hours and 45 minutes of HLTA support a week between November 2021 and July 2022. I have made a recommendation to remedy that injustice.
65. I have not made a recommendation for the Council to improve provision for Mr Y going forward. This is because the Council has already indicated the steps it intends to take to meet Mr Y’s needs, outlined in paragraph 51. It is open to Ms X to complain to us again in the future if she remains dissatisfied with the Council’s actions.

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Agreed action

66. Within one month the Council will:
• Write to Mr Y and apologise and pay him £2800 to recognise the injustice caused to him by it failing to provide the HLTA support, the OT provision and the HLTA-led element of the SAL provision
• Write to Ms X and apologise and pay her £500 to recognise the frustration and time and trouble caused to her by the Council’s failure to provide the special educational provision for Mr Y
• Reimburse Ms X the £5454.15 she spent funding elements of the provision for Mr Y as outlined in paragraph 63
67. Within two months the Council will:
• Review its processes for commissioning or arranging occupational therapy provision to ensure it can access assessment and therapy services when children and young people require it
• Review how it assures itself that providers it commissions to deliver specialist provisions can meet the educational provision specified in children and young people’s EHC plans
68. The Council will provide us with evidence it has done so.

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Final decision

69. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

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Parts of the complaint that I did not investigate

70. I have not investigated the Council’s decision about the personal budget made in March and September 2021. This is because at the time Mr Y and Ms X had a right of appeal to the SEND Tribunal which they had used. The matter of the personal budget was directly linked to the provision of education which was the matter under consideration by the SEND Tribunal. As set out in paragraph 15 we cannot consider matters that are inextricably linked to the matters under appeal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman