Summary: There was fault in failing to secure special educational provision after a Tribunal order and delay in agreeing a personal budget. This caused loss of education and unnecessary distress, time and trouble. The Council will pay a financial remedy and make service improvements. The complaint is upheld.

The complaint

1. Ms X complains the Council has failed to implement the provision in her son’s Education, Health and Care (EHC) plan following a Tribunal decision in Autumn 2021.
2. Ms X says this has impacted her son’s education, caused distress, and caused unnecessary time and trouble to her in resolving the situation through the complaint process.
3. Ms X has asked for a personal budget to source support herself but says there has been poor communication and delay meaning some provision is still not yet secured.

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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. When someone has suffered because of fault, we try to put them back in the position they would have been if that error had not happened. Where that is not possible, we may recommend a financial payment to acknowledge the impact of faults.
7. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
8. 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.
9. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

10. I have considered information provided by Ms X and the Council.
11. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014
• The Special Education and Disability (SEND) Regulations 2014
• The SEND code of practice: 0 to 25 years.
12. I have considered the Ombudsman’s Guidance on Remedies.
13. 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

Key facts

14. The following is a summary of key events. It does not include everything that happened.
15. The Tribunal ordered the Council to amend the EHC plan. The Council had five weeks to do so, which was by the end of November 2021. The Code says provision should ordinarily be in place on the date a new plan is issued.
16. In March 2022, the Council’s stage one response to Ms X’s complaint found:
• Speech and language therapy was not yet in place, but the Council had recently identified a provider who would get in touch with Ms X shortly.
• Occupational therapy was not yet in place, the Council had approached several therapists and only recently been successful in finding one who could assist, this person would contact Ms X shortly.
• The Tribunal recommendation for a mentor was actioned in February, but Ms X’s son would not engage with the Early Help worker at that time. The Council said it would ask Early Help to try again.
• The Council was still seeking professionals to support sleep, hygiene and behaviour as set out in the EHC plan. It mentioned one service it had approached.
17. The Council apologised for the delay in securing the provision but offered no financial remedy for the period Ms X’s son had been without the above provision.
18. Ms X replied to the Council that:
• She had provided it with details of therapists who were able to assist in November so did not agree it had not been possible to identify therapists earlier.
• An apology was not an appropriate remedy for months of lost provision.
• When her son would not engage with Early Help, she spoke to the team by phone and explained she did not consider Early Help was the right service to mentor her son. This was due to his complex difficulties and because the staff were not trained in interpersonal counselling. Ms X said her son needed someone who could provide consistency and had a good understanding of his needs. Ms X asked for a personal budget to source a suitable mentor herself, but the Council did not respond.
• Ms X also did not agree the service suggested for sleep/hygiene/ behaviour support had the right expertise. Ms X was paying privately for a specialist in cognitive behaviour therapy (CBT) and wanted a personal budget to use this person as well as to secure a sleep training professional.
19. In May 2022 the Council responded to the complaint at stage two. It acknowledged there had been delay in approaching speech and occupational therapists and that its communication with her could have been better. It said a need for better communication with families had been identified within a recent SEND Review and it was intending to address this via a SEND action plan. The Council said Ms X had now accepted a different Early Help worker so it would not explore other options via a personal budget. The Council said it would consider a budget for the CBT specialist and this request would be actioned quickly. The Council agreed a personal budget for the sleep package.

20. In August 2022 Ms X told me the stage two response had resolved the sleep/hygiene issue as she was able to secure provision with the budget provided. Ms X says she has been advised a budget for behaviour / psychological support has been approved but further clarity is required about how many weeks per year of this provision she can commission. Ms X also told me the Council had offered her £100 time and trouble payment for the delay in resolving this matter. Ms X told me she refused this payment as it does not reflect the time her son had missed out on this support.
21. Since issuing my draft decision, the personal budget has been agreed at £1265 per year for behaviour / psychological support.
22. Ms X told me she still does not agree Early Help can provide the expertise and consistency her son requires; she would prefer to find a mentor her son connects with, and who can work with him over a long period.

Analysis

23. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act).
24. The Council has acknowledged fault and delay in putting provision in place. I have found:
• a four month delay in securing occupational and speech therapy
• a six month delay in securing sleep/hygiene support and a mentor
• a nine month delay (to date) in securing psychological and behaviour support; this loss of provision is continuing.
25. I also find there was delay and poor communication with Ms X about her personal budget requests. The Council has acknowledged this.
26. The Council has considered the request for a personal budget for a mentor but decided that the Early Help worker is an appropriate person. The Ombudsman cannot question a council’s decision, if it took the decision properly and fairly (Local Government Act 1974, section 34(3), as amended). We cannot intervene in the professional judgment of council officers. If the situation changes and the mentoring is not working as anticipated, then Ms X can ask the Council to reconsider her request for a different mentor.
27. I agree with Ms X that a financial remedy is appropriate for the period Ms X’s son lost out on his special educational provision and that an apology is not a sufficient remedy.
28. Our Guidance on Remedies recommends payment of £200 to £600 per month to acknowledge the impact loss of provision has on a child’s education.

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Agreed action

29. The Council has already acknowledged the fault and apologised.
30. Within four weeks of my final decision, the Council will:
• Pay Ms X’s son £1500 for the lost provision to date, this should be paid in the child’s name into an account where parents have oversight and control and used for the child’s educational or social benefit.
• Refund £855 private costs for behavioural / psychological support Ms X has self-funded since the amended EHC plan was issued in November 2021.
• Pay Ms X £200 to acknowledge her time and trouble and her own distress arising from the fault.
• Secure the outstanding psychological / behaviour support, or provide Ms X with the budget to do so.
31. Within eight weeks of my final decision the Council should review its procedures to ensure it has robust processes in place to:
• Check special educational provision in an EHC plan is put in place on time
• Respond to personal budget requests in a timely way
• Consider whether its SEND action plan is sufficient to address the problems identified in this investigation or whether further improvements are required
• Ensure its action plan around better communication is being met
• Ensure when responding to complaints where there has been a loss of provision it considers whether a financial remedy is suitable. This might have avoided Ms X needing to bring her complaint to the Ombudsman
• Ensure its commissioning arrangements are sufficient to meet the needs of children and young people locally.
32. Within eight weeks of my final decision the Council should provide a report to the Ombudsman setting out what steps it has taken in response to the recommendations made.

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Final decision

33. I have completed my investigation. There was fault and delay in putting in place special educational provision following a Tribunal decision and in responding to requests for personal budgets. This caused loss of education and unnecessary distress, time and trouble. I am satisfied the recommendations set out above represent a satisfactory remedy for the faults identified.

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Investigator's decision on behalf of the Ombudsman