Summary: Miss X complained the Council has not provided her daughter, Y, with Occupational Therapy (OT) specified in her Education, Health and Care Plan (EHCP) since May 2022. Miss X also complained the Council has not provided a personal budget when she requested this and its communication has been difficult. Miss X says she has been funding Y’s education and this has put financial pressure on her family. Miss X has been put to time and trouble to complain. There was fault in the way the Council communicated with Miss X, delays in dealing with the personal budget request and not providing Occupational Therapy for Y.

The complaint

1. Miss X complained the Council has not provided her daughter, Y, with Occupational Therapy (OT) specified in her Education, Health and Care Plan (EHCP) since May 2022. Miss X also complained the Council has not provided a personal budget when she requested and communication has been difficult. Miss X says she has been funding Y’s education and this has put financial pressure on her family. Miss X says she has been put to time and trouble to complain.

Back to top

The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. 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.

Back to top

How I considered this complaint

5. I read Miss X’s complaint and spoke to her about it on the phone.
6. I considered information provided by Miss X and the Council.
7. Miss X and the Council the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

8. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
9. The Council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a Council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
10. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.
11. The Ombudsman has issued a number of Focus Reports about the common failings seen in Special Education Needs complaints, the most recent published in 2019. The aim of publishing these reports is to help drive improvements through Councils learning from faults in the cases we see and investigate.
12. A Personal Budget is an amount of money identified by the Council to deliver provision set out in an EHC plan where the parent or young person is involved in securing that provision.
13. The child’s parent or the young person has a right to request a Personal Budget, when the Council has completed an EHC needs assessment and confirmed that it will prepare an EHCP.
14. Councils must set out in their arrangements for agreeing Personal Budgets. They should develop and agree a formal approach to making fair and equitable allocations of funding and should set out a local policy for Personal Budgets.
15. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
16. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
18. Miss X previously complained to the Ombudsman about matters in this case. The previous investigation covered issues with education provision, EHCP and funding up to May 2022. This complaint is about service provision and funding since May 2022.

What happened

19. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
20. Y has Special Educational Needs (SEN) and anxiety. She was on a significantly reduced timetable but has not accessed school since May 2021 due to her anxiety. Miss X stated she funded Science and Technology and English education subscriptions to ensure Y received an education while she could not attend school. Miss X explained she also funded horse riding and canine assisted learning. Y’s previous school funded some equine facilitated learning.
21. Miss X applied for a personal budget in April to fund Y’s education provision, horse riding and canine assisted learning.
22. Y’s final EHCP was issued in May 2022. The Council informed Miss X of her appeal rights to the tribunal. Miss X stated the plan was not correct and named mainstream education as the type of provision. Miss X had requested Education Other Than At School (EOTAS). The EHCP did specify OT provision Y needed.
23. The Council contacted Miss X the following week and refused the personal budget request. The Council stated it needed to establish if a school could meet Y’s needs before it would consider the personal budget request.
24. Miss X complained to the Council about poor communication and problems with the EHCP. Miss X stated although she usually gets a response from the Council, information was not forthcoming, and she often needed to request information more than once.
25. The Council issued a revised EHCP in June. The Council informed Miss X of her appeal rights to the tribunal. This plan did not name an education setting but did confirm Miss X’s personal budget request. The Council confirmed it was approaching schools and would comment further when it has received responses from them.
26. The Council responded to Miss X’s complaint at the end of June. It accepted there were delays in contact with Miss X and stated the team were dealing with high workloads and was having to prioritise work.
27. Miss X requested the Council escalate her complaint to stage two the following day and stated the Council had not fully addressed her concerns.
28. At the start of July, the Council contacted Miss X to confirm the schools it had consulted had responded and none stated they could meet Y’s needs. The Council confirmed the request for EOTAS would go back to a panel meeting.
29. Miss X responded and questioned if the Council would consider the personal budget request again.
30. The Council contacted Miss X at the end of July and confirmed EOTAS would be named in Y’s EHCP.
31. The Council responded to Miss X’s stage two response the following day. The Council accepted its communication was not good enough at times. The Council also accepted there had been a delay in a decision being made about the personal budget. The Council apologised and acknowledged the service was not good enough.
32. Miss X met with the Council in August. The Council confirmed Y was registered as EOTAS. It also confirmed the equine facilitated learning, funded by Y’s previous school, would be funded by the Council from September. The Council stated it would consider the personal budget request again if Y was unable to access Council accredited provision.
33. Miss X contacted the Council in September and again requested the personal budget request was considered. She stated the provisions Y was accessing were working for her and those provisions knew her. Miss X questioned why changing the provision would be beneficial to Y.
34. At the start of October, the Council confirmed with Miss X no providers responded positively to its request to support Y. It stated it would consult with management and consider the personal budget request again.
35. At the end of October, the Council considered the personal budget request again at a panel meeting. This meeting refused the request. It noted the request would ultimately be granted for this case once it has been to a different meeting.
36. Miss X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Miss X would like the Council to acknowledge its fault in this case.
37. In response to my enquiries the Council stated it had taken over funding for Y’s equine facilitated learning previously funded by Y’s previous school. The Council confirmed the personal budget has now been agreed for one year. It confirmed the personal budget would be backdated to the start of September 2022. The Council has acknowledged there has been delay and communication difficulties with Miss X on this case. The Council also confirmed it has not provided Y with any OT support since the EHCP was issued in May.

My findings

38. It is clear from documentation, and the Council has acknowledged, communication has been difficult. This is fault and has caused Miss X distress and uncertainty throughout this case.
39. The Council was late consulting with schools. Had the consultation taken place before issuing the EHCP, it is likely EOTAS and the personal budget would have been approved sooner. This delay is fault.
40. It was open to Miss X to challenge the Council’s decision to name mainstream provision in the May EHCP and again when the revised plan was issued in June at the SEND Tribunal. The Council accepted the EHCP needed to be revised and ultimately named EOTAS as Miss X originally requested. These are not matters I can consider as the route to challenge this was via the Tribunal.
41. The Council has acknowledged it has not provided Y with the OT provision specified in the EHCP. This is fault and Y has not received any OT provision for one school term.
42. The Council stated it followed its process regarding Miss X’s personal budget request. The process included consulting on the education offer for Y and when EOTAS was agreed following another process for accessing specialist provision. Once this process was completed it considered the request again. Although the application was initially declined at a meeting, the notes of the meeting stated the request would ultimately be approved. It is unclear why the decision could not have been made at the meeting if it was acknowledged this would be the eventual outcome. The failure to do so added further delay and uncertainty for Miss X and Y.
43. The Council has confirmed it has now approved a personal budget for Y. There was a delay, but the personal budget has been approved and backdated to the start of September. The delay is fault and has caused Miss X frustration and uncertainty about Y’s education.
44. The Council confirmed it does not have current, up to date policies for EOTAS or personal budgets, so I am unable to follow the process it stated it followed. The Council has indicated it is in the process of developing new and comprehensive policies for both. The failure to have policies which are up to date and fit for purpose is fault and caused Miss X further confusion and distress.

Back to top

Agreed action

45. To remedy the outstanding injustice caused to Miss X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Miss X for its poor communication, delays and not providing Y with the OT provision specified in her EHCP.
• Pay Miss X £200 for the delay in agreeing the personal budget.
• Pay £300 for not providing OT provision for one academic term. This money should be used for Y’s benefit.
• Evidence OT provision has started and is being delivered in accordance with the requirements of the EHCP.
46. The Council should take the following action within three months of my decision:
• Provide the Ombudsman with its policies on EOTAS and personal budgets.
47. The Council should provide evidence of the actions taken to satisfy the recommendations.

Back to top

Final decision

48. I have completed my investigation. I have found fault by the Council, which caused injustice to Miss X and Y.

Back to top

Investigator's decision on behalf of the Ombudsman