Summary: Ms X complained the Council failed to deliver the provision as set out in her son, Mr D’s, Education, Health, and Care Plan. Ms X also said the Council failed to properly consider her direct payment application and failed to communicate properly with her. The Council was at fault for failing to provide Mr D with his entitled provision. This caused Mr D to miss out on his entitled provision and caused Ms X distress, frustration and put her to the time and trouble of complaining. We also find fault with the Council for failing to adhere to its complaint timetable, however we are satisfied the Council has already remedied any injustice. We do not find fault with how the Council considered Ms X’s application or review for direct payments or how it communicated with her. The Council has agreed to remedy the injustice caused.

The complaint

1. Ms X represents her son, Mr D. She says the council has failed to:

• Provide provision as specified in his EHCP.
• Properly consider her request for a personal budget; and
• Communicate properly with her about these matters.

2. Ms X says this has hindered Mr D’s education. She also says this has caused her distress, mental anxiety, frustration and put her to the time and trouble of complaining.

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What I have and have not investigated

3. Ms X has used her right of appeal to the SEND tribunal. By law, I cannot look at matters that have been decided by the tribunal.

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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. 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)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
8. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

9. 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)
10. 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
11. 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

12. We corresponded with Ms X and made enquiries of the Council. I have read the information Ms X and the Council provided about the complaint.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Law and Legislation

14. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give council’s information about its duties.  Councils must make sure the provision in a child’s EHCP is secured.  
15. 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/young person and is non-delegable.
16. Special educational provision for a child or young person may be delivered through a ‘personal budget.’ This means the Council can give the cost of addressing the child’s SEND, in whole or in part, to the child’s parent/carer as a direct payment.  

Personal budgets  

17. The SEND code of practice: 0 to 25 years says a personal budget is the amount of money identified by the local authority that it can give to the young person or parents in order for them to secure provision which is specified in the EHCP.  
18. Parents and young people can request a personal budget when the draft EHCP is being prepared, reviewed or re-assessed. A personal budget may be provided in the form of direct payments to the young person or their parent, for them to purchase the support themselves.  
19. Where a local authority decides not to make direct payments it must tell the child's parent its decision in writing and give the reasons for its decision. Parents have a right to request a review of the decision. Councils must consider any representations made and inform the parent in writing of the outcome of the review, giving reasons. 

The Council’s Complaint Procedure

20. The Council has a two stage complaints process. It should reply within 15 working days to a Stage One complaint. It should respond within 20 working days when dealing with a complaint at Stage Two.

What happened

21. There has been extensive correspondence between Ms X, her legal representatives, the Council and various education providers since May 2021. I have set out a summary of the key events below. It is not meant to show everything that happened.
22. Mr D is a young adult with a diagnosis of Autistic Spectrum Condition (ASC), Attention Deficit Hyperactivity Disorder (ADHD) and has severe learning difficulties. Mr D also experiences severe anxiety. The Council is maintaining an Education, Health, and Social Care Plan (EHCP).
23. The Council issued Mr D with a final amended EHCP on 19 October 2020. This EHCP stated some of Mr D’s entitled educational provision was:

• 36 hours weekly of 1:1 tuition by an Applied Behaviour Analysis (ABA) trained tutor for 42 weeks per year (38 weeks during term time and 4 weeks during the holidays).
• 7 hours weekly input from a senior tutor.
• A review workshop every three weeks of three hours duration.

24. Mr D’s EHCP also said he should receive ABA support in college, regular reviews by an ABA tutor and support in developing his communication and interaction skills. It also specified Mr D should receive behavioural support at home and school, support for self-care needs and supervision during free time around college, and adult support to manage his social time.
25. Ms X contacted the Council in May 2021. She explained Mr D’s ABA provider had reduced his commissioned hours as set out in his EHCP to a reduced timetable. Mr D’s ABA provider supported him with two tutors and a senior tutor. However, due to staffing issues one of Mr D’s tutors needed to reduce their hours.
26. Ms X requested help from the Council in finding a new ABA provider and said she had been informed Mr D’s ABA provider could no longer work with him or provide services after 3 September 2021.
27. The Council contacted Ms X a few days later and said it would find out about other ABA providers for Mr D. It also contacted Mr D’s ABA provider who confirmed due to staffing issues it was only able to provide Mr D with a part time ABA programme for three days a week from 7 June 2021. This would run until the beginning of the new academic term in September when it would stop working with Mr D.
28. Ms X contacted the Council specifically noting that due to Mr D’s condition, transition between education providers needed to be managed carefully and with forethought. She explained that Mr D did not respond well to uncertainty and change.
29. Mr D’s college held his annual review in May 2021. Ms X attended the annual review and explained she was looking into finding alternative ABA providers to support Mr D. Ms X said she had felt overwhelmed and had to provide a lot of support and training to the provider to facilitate its care of Mr D.
30. The Council said it did not have ABA therapists on its framework of providers and it was having difficulty finding providers in the local and surrounding areas. The Council noted there was a shortage of national ABA providers. It provided Ms X with a list of organisations that it believed could help in her search for an ABA therapist and asked her to contact them.
31. Ms X asked the Council to make clear how it would provide provision for Mr D due to the ABA provider not being able to deliver provision on a Monday and Tuesday. She made clear she had not agreed to part time provision for Mr D and expected him to receive full time intensive provision at home and in college as specified in his EHCP.
32. Ms X also told the Council she had emailed an alternative ABA provider.
33. The Council said it was unsure how provision would be delivered to Mr D, but it had referred Ms X to its social care team to offer support in the interim. The Council contacted Ms X and suggested it could increase Ms X’s Direct Payments as a way of supporting Mr D in the interim period while it looked to source alternative ABA providers.
34. Ms X asked for an increase to her Direct Payments in June 2021. The Council agreed to fund an additional ten hours Direct Payment support for Mr D to last until the end of the summer term 2021.
35. A new ABA provider was found in late June 2021. The Council said it agreed to this change in principle.
36. A few days later Ms X contacted the Council to enquire why it was only providing Mr D with 42 weeks of provision. She said she believed Mr D was entitled to 48 weeks of provision and said this had been decided and agreed upon over two years ago.
37. The Council contacted Ms X and explained it was only legally bound to provide the provision as stated in Mr D’s current EHCP. However, it accepted 47 weeks of ABA provision had been put forward two years previously. It suggested the new ABA provider could review Mr D’s needs once he had settled in.
38. Ms X was not satisfied with the Council’s suggestion and said Mr D needed 48 weeks of continued educational provision.
39. Ms X complained to the Council in July 2021. She said:

• She believed the issue of Mr D’s hours had been sorted and that he was entitled to 48 weeks of provision.
• Mr D was not receiving his entitled provision.

40. The Council issued Ms X with a draft amended EHCP on 3 August 2021.
41. In early August 2021 the potential new provider of Mr D’s ABA provision withdrew from discussions. It told the Council Ms X had requested information about staff vaccinations and believed this to be unreasonable. It told Ms X and the Council it no longer wished to be involved in providing provision.
42. Ms X recontacted the Council to ask for help finding another ABA provider. The following day the Council contacted several ABA organisations and ABA consultants. The Council’s notes show it provided Ms X with a list of ABA contacts.
43. Ms X chased the Council for an update. She said that Mr D had not had full educational provision since April 2021. She also said she had found an ABA tutor to support Mr D for three days a week in the interim period while consultations were held to find a full time ABA provider.
44. The Council agreed to fund Mr D’s independent tutor and pay for travel expenses. Mr D’s tutor started work in late August 2021.
45. Ms X found another prospective ABA provider and exchanged emails throughout September and October 2021.
46. The Council responded to Ms X’s complaint in October 2021. It said:

• It was sorry for the delay in responding to Ms X’s complaint.

• The head of service and a senior member of the mayor’s office had met with Ms X to discuss her concerns.
• ABA was not part of its local offer as an intervention therapy. HoweHowever, the Council had contacted a local college who could accommodate tutors for Mr D.
• It had funded Mr D’s provision for 42 weeks in line with his EHCP.
• The remaining six weeks of support was funded through social services.
• It acknowledged Ms X’s request for support for Mr D’s life skills.

47. The Council issued Ms X with a final amended EHCP on 7 October 2021. This said Mr D was entitled to:

• An ABA programme compromising of 36 hours weekly, 1:1 tuition by an ABA trained tutor for 42 weeks per year (38 weeks during term time and 4 weeks during the school holidays)
• Support in college from an appropriately trained ABA
• Flexible arrangements for additional time to be spent in college following regular consultations between the college and ABA consultants.
• An ABA supervisor for six hours with one visit per week.
• Consultation with a Board-Certified Behaviour Analyst (BCBA) for six hours with one visit per month totalling ten visits.

48. Ms X had a right of appeal to the SEND tribunal following the Council’s issuing of Mr D’s final EHCP.
49. In late October 2021, Ms X notified the Council Mr D’s interim ABA tutor had resigned.
50. Ms X remained dissatisfied with the Council’s response and contacted a solicitor.
51. Throughout November and December 2021, Ms X consulted with the Council and a further prospective ABA provider. The prospective ABA provider said it would look to start work with Mr D in January 2022. It told Ms X and the Council it had recruited an ABA tutor and would look to recruit a second tutor.
52. Ms X appealed to the SEND tribunal about the content of Mr D’s EHCP in December 2021.
53. Ms X remained unhappy with the amount of time the Council had taken to deliver Mr D’s educational provision. In late December 2021, Ms X’s solicitor instructed the Council to give notice to the prospective new ABA provider. Ms X also requested the Council return her personal budget so she could find and fund Mr D’s ABA provision herself.
54. The Council replied and said the prospective ABA provider had already recruited two tutors who were able to start work and deliver the identified ABA provision to Mr D in January 2022.
55. The Council agreed to Ms X’s request for a personal budget/direct payment.
56. Ms X contacted the Council in January 2022. She reminded the Council Mr D had not had adequate provision for over nine months. Ms X said she believed the Council had failed to read Mr D’s EHCP or properly consider his needs.
57. Ms X’s solicitor was also in regular contact with the Council and explained Ms X was unhappy with the Council’s personal budget calculations. He asked the Council to reconsider and review Ms X’s personal budget. He also commented there were several issues preventing Ms X recruiting ABA tutors and requested mediation.
58. The Council reviewed its original personal budget decision and replied to Ms X in February 2022. It said it had considered her views and the documentation she had submitted. Its letter noted:

• It had agreed to issue Ms X with a personal budget on 17 December 2022.
• It had reviewed Ms X’s request for additional costs and acknowledged she had not contested the sum proposed for provision of ABA or the resource budget.
• It agreed to increase its original offer to cover some of Ms X’s additional costs.

59. Ms X remained unhappy with the Council’s offer. She raised objections about its decision to pay her monies on a pre-paid card. Ms X said the Council had offered her two options as to how she could receive Mr D’s personal budget and she told the Council she wanted monies to be paid into a separate bank account.
60. In March 2022 the Council contacted Ms X to explain her personal budget had been authorised and asked her to confirm receipt of the pre-payment card.
61. The Council’s notes show it explained to Ms X’s solicitor it was unable to make payments into a separate account whether this was for personal or business use as it needed oversight of spending and quotes. It said it had now issued Ms X with a pre-paid card to prevent any further delay.
62. The Council responded to Ms X’s complaint in April 2022. Its Stage Two response said:

• It had discussed issues directly at mediation.
• It had reviewed Ms X’s personal budget in February 2022.
• It would not agree to further requests on the basis it would be an unreasonable expenditure of public funds.
• It could not make payments into a separate account with little to no scrutiny from the local authority.
• The agreed direct payment was accessible via a pre-paid credit card.
• It did not uphold her complaint.

63. Ms X complained to her MP who contacted the Ombudsman in July 2022. Ms X remained dissatisfied with the Council. It noted Mr D was only receiving 60 per cent of his five days provision a week. Ms X also said the Council was reluctant to fund Mr D’s 48 weeks of tuition and provide her with a personal budget.
64. Ms X and the Council completed the tribunal process and signed a consent order on 14 September 2022.
65. The Council issued Ms X with Mr D’s final amended EHCP. This is dated 12 October 2022. This specified Mr D would receive 36 hours weekly of 1:1 tuition by an ABA trained tutor for 48 weeks a year.

The Council’s Response to my enquiries

66. The Council responded to my enquires in December 2022 it said:

• It had provided Mr D with full educational provision between September 2020 and May 2021.
• Mr D’s provision was partly delivered between May and October 2021.
• Mr D had no provision between November 2021 and March 2022.
• Ms X received a personal budget with the responsibility to source Mr D’s educational provision from April 2022.
• Ms X had appealed to the SEND tribunal.
• It had worked closely with Ms X and any difficulties had been communicated immediately.
• It had held many discussions with Ms X and her representatives to try and resolve the issues.
• Ms X had expectations of ABA providers that were more than what they could provide.
• There were few national ABA providers.
• It had completed a full review of Ms X’s personal budget. It had considered her views and objections and had made decisions in line with its policy.

Analysis

67. I have used my discretion to investigate matters older than twelve months, this is because the Council accepts it did not provide Mr D with adequate provision during that time.
68. In response to my enquiries the Council accepts Mr D did not receive some of his entitled provision between May 2021 and October 2021. The Council said some delay was due to Ms X’s unreasonable expectations and due to a national shortage of ABA providers. I have seen there were attempts by both Ms X and the Council to find alternative and suitable ABA providers to fulfil Mr D’s provision as specified in his EHCP. However, these attempts were unsuccessful. The law is clear, the Council had a duty to provide Mr D with the educational provision as set out in his EHCP. It did not and this was fault. It is caused Mr D to miss out on his entitled education and caused Ms X frustration, distress and put her to the time and trouble of complaining. I have made recommendations to remedy the injustice caused.
69. The Council also acknowledged Mr D received no provision between November 2021 and March 2022. However, the Council’s notes show that by October 2021, an ABA provider had been found that could offer Mr D his required educational provision from January 2022. Ms X exercised her right to refuse this provider and asked the Council to give notice to it in December 2021. She also requested the Council return her personal budget. The Council acted on Ms X’s request, cancelled the ABA provider and in December 2021 agreed to pay her a personal budget so she could find a suitable provider herself. I find fault with the Council for Mr D’s lack of provision between November and December 2021. This caused him to miss out on his entitled provision and continued to cause Ms X distress and frustration. However, I do not find fault with the Council from January to March 2022, as Ms X had control of the personal budget.
70. Ms X was unhappy the Council had not included additional administrative costs in its original personal budget offer and requested a review. The Council considered her review request, taking into account her views and reviewing the documentation she supplied. It amended its offer, increasing it slightly to include administrative costs. The Ombudsman is not an appeal body and where the proper process is followed it is not for us to decide the level of personal budget. Ms X remains unhappy with Council’s decision. I am satisfied the Council considered all relevant information when it first considered and then reviewed Ms X’s request for a personal budget. In these circumstances I have no grounds to question the Council’s decision and I do not find fault.
71. Ms X remains unhappy with the Council’s decision to pay the personal budget via a pre-paid card, rather than her preferred choice of into a bank account. The Council considered and reviewed Ms X’s request, both internally and through mediation. It explained it needed the ability to scrutinise the use of public funds and while it had noted Ms X’s views, it decided it could not pay monies into a bank account with little or no oversight of spending. Therefore, it decided to issue Ms X with a pre-paid card to prevent any further delay. I am satisfied the Council considered all relevant information when reviewing Ms X’s request. In these circumstances I have no grounds to question the Council’s decision and I do not find fault.
72. Ms X said the Council delayed in responding to her concerns. I can see in its Stage One response that it apologised for the length of time it took to respond. Its policy said it would respond within 15 working days. It did not reply to Ms X until October 2021 a delay of nearly three months, and this was fault. This caused Ms X frustration. However, I am satisfied the Council has already apologised for this and this is a satisfactory remedy for the injustice caused.
73. I have also considered Ms X concern about the Council’s communication. I have looked at the Council’s case notes, and I am satisfied the Council responded and attempted to resolve the concerns raised by Ms X and took part in mediation. It met with Ms X and her legal representatives on several occasions and responded to her concerns within a reasonable timescale. Therefore, on the evidence seen, I have not found fault with how the Council communicated with Ms X.

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Agreed action

74. By 20 April 2023 the Council has agreed to:

• Apologise to Ms X for failing to provide adequate provision for Mr D causing her distress and frustration.
• Pay Ms X £1800 (for the period May 2021 to October 2021 worked out at £300 a month and should be used for Mr D’s educational benefit) this is for the partial loss of Mr D’s provision.
• Pay Ms X £1200 (for the benefit of Mr D’s provision) for the loss of provision for Mr D (for the period November and December 2021) (worked out at £600 a month).
• Pay Ms X £300 for the distress caused and putting her to the time and trouble of complaining.

75. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. The Council was at fault for failing to provide some of Mr D’s EHCP provision and for how it handled Ms X’s complaint. It is not at fault for how it considered and assessed Ms X’s application and review for a personal budget, or for how it communicated with her. The Council has agreed to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman