Summary: Mrs Y complained the Council failed to arrange Mr X’s special educational needs provision, fund all his home to college transport costs and communicate properly with her. We have found fault by the Council in failing to make all the special education needs provision in Mr X’s Education Health and Care Plan and communicate properly with Mrs Y. These faults have caused injustice. The Council has agreed to remedy this by apologising to Mrs Y and Mr X, making payments to reflect the impact on Mr X of the missed SEN support, and Mrs Y’s worry and distress.

The complaint

1. Mrs Y complains on behalf of her son, Mr X, about the way the Council has dealt with the Special Educational Needs (SEN) provision in his Education, Health and Care (EHC) Plan and his home to college transport costs. She says the Council failed to:
1. provide Mr X with the Salt and Language Therapy (SALT), Occupational Therapy (OT) and Art Therapy provision in his EHC Plan;
2. pay the full cost of Mr X’s home to school transport which is part of the SEN provision in his EHC Plan;
3. put in place the personal budget for his additional activities; and
4. communicate properly with her about Mr X’s SEN provision.
2. Mrs Y says the Council’s failure to provide all Mr X’s SEN provision has affected his well-being and caused a regression in his progress. Its refusal to pay the full cost of his home to college transport has caused them financial difficulties. The communication failures and lack of action has caused the family huge stress.
3. Mrs Y wants the Council to:

• apologise to herself and Mr X for its failings;
• provide Mr X with all his SEN provision;
• pay financial redress for some of the harm caused;
• reimburse her for the full amount of the transport costs; and
• train its staff about their legal duties.

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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.
5. 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)
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 spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint.
9. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care Plan (EHC Plan)

10. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
11. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
12. We recognise it is not practical for councils to keep a “watching brief” on whether schools are providing all the special educational provision for every child with an EHC Plan. We consider councils should be able to demonstrate due diligence in discharging its duty to make sure the arrangements in the EHC Plan are put in place, and as a minimum have systems in place to:

• Check the special education provision is in place when a new 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 the provision is not in place at any time.

Personal Budget

13. A personal budget is an amount of money agreed with a council to deliver the education, health and/or social care provision in an EHC Plan when the parent or young person is involved in securing that provision.
14. A direct payment is one of the methods of managing a personal budget where the parent or young person buys and arranges the services for provision themselves rather than the council.

Statutory Guidance: “Post-16 transport to education or training” January 2019

15. Councils have a duty to publish a transport policy statement setting out the transport arrangements they consider it necessary to make to facilitate the attendance at education or training, and financial help available for:

• Learners of sixth form age (aged 16-19 if they started the course before their 19th birthday); and
• Learners with EHC Plans up to the age of 25 who started their programme of learning before their 19th birthday (Education Act 1996 section 509AA)

The Council’s post-16 home to school transport policy

16. This says:

• It applies to all young people aged between 16-18 years attending 6th form, or college. It states there is no statutory entitlement to transport post sixteen.

17. Section C of the policy concerns travel support for young people with learning difficulties and/or disabilities with an EHC Plan. It says the Council:

• has the discretion to determine whether to provide travel support to facilitate a young person’s participation in education or training; and
• will offer support to those young people who meet the criteria but a financial contribution of 20% will be required. The maximum contribution payable would be £1,554 with the Council paying the balance. This would usually be waived for a low-income family.

What happened

18. I have set out a summary of the key events below. It is not meant to show everything that happened.

Background

19. Mr X has had an EHC Plan for a number of years. He turned 18 in the school year September 2020/July 2021 and the Council began planning for his move from school to college in September 2021.

March/April 2021: consultation with College A

20. The Council consulted with College A about a place for Mr X from September 2021. College A raised some questions about Mr X’s SEN provision. It explained it would not be able to deliver some of the provision in Mr X’s Plan such as art therapy, psychotherapy, SALT and OT, from its in-house resources. If this provision was to continue it would need to source a provider and reflect this in the provision map costs.
21. Mr X’s school replied to the Council, and College A setting out the position regarding the delivery of the current provision in Mr X’s plan.
22. College A told the Council it would offer Mr X a placement from September 2021. It said it would discuss with his parents the removal of some of the provision in the Plan no longer relevant to his needs at the annual review.

July 2021: approval of a personal budget for Mr X’s SEN provision

23. The Council approved a personal budget for direct payments to Mrs Y for the following provision for Mr X:

• Psychotherapy - weekly therapeutic/counselling support to develop specific strategies to manage anxious, worrying or frightening feelings as well as his emotions and social skills. This would be offered through therapeutic interventions such music or psychotherapy.
• SALT - speech and language targets would be integrated into Mr X’s daily curriculum to provide him with the opportunity for daily practice. This would be overseen by a Speech and Language Therapist on an assess, plan, do, review basis.
• OT – Mr X would be provided with a sensory diet, administered at regular intervals throughout each day. Staff training would be conducted in addition to OT visits to ensure there was time to assess Mr X and set up the initial planning of any additional sensory/physical provisions needed. Staff would liaise with the Occupational Therapist to address needs and ensure they were integrated into his daily curriculum. Progress and targets would be reviewed on an assess, plan, do, review basis.

July 2021: Mr X’s amended final EHC Plan

24. The amended final plan issued in July named Mr X’s placement from September as College A. It included the following in section B (needs):

• Mr X found change challenging due to his Autism. It was paramount he travelled in a familiar vehicle with a familiar adult he felt safe with.

25. And it included the following in section F (provision)

• It was paramount Mr X travelled in a familiar vehicle with a familiar adult. To be provided by school/home;
• speech and language targets to be integrated into Mr X’s daily curriculum, overseen by a SALT therapist on an assess, plan do, review basis. To be provided by a SALT therapist;
• Mr X would be provided with a sensory diet, administered at regular intervals throughout the day. Staff training would be conducted following OT visits. Provision was to be set up by a HCPC qualified OT;
• Continued assessments and updates would be provided to meet Mr X’s sensory needs including sensory profiles. To be provided by Mr X’s form tutor in liaison with the OT; and
• Liaison with the OT to address Mr X’s needs and ensure they were integrated into his daily curriculum. Progress and targets would be reviewed on an assess, plan, do, review basis. To be provided by staff working with Mr X and the OT.

26. Section J said the provision in the Plan eligible to be provided through a Personal Budget was:

• SALT – weekly during term time - £68.10 an hour
• OT – weekly during term time £68.10 an hour
• Psychotherapy – weekly during term time - £68.10 an hour
• Total Personal Budget of £7,763.40

August 2021: Council’s contact with Mrs Y

27. The Council told Mrs Y by email on 11 August it had sent a completed Personal Budget form to its SEND Brokerage Department. They would be in touch with her shortly to arrange the payments.
28. Mrs Y would be taking and collecting Mr X to and from College A by car. In its letter of 24 August, it said it would reimburse Mrs Y for these journeys, at its mileage rate less a 20% financial contribution, paid on a recurring basis until July 2022.

September 2021

29. Mr X started his placement at College A

October 2021: annual review

30. The Council completed its annual review of Mr X’s EHC Plan. The annual review report said:

• The references to his previous placement (school) should be removed; and
• Mrs Y should chase its SEN team about funding the private therapies as she had been awarded a personal budget for this.

December 2021: Mr X’s amended final EHC Plan

31. The Council issued Mr X’s amended final Plan. This confirmed his placement as College A and included in section B (needs):

• It was paramount Mr X travelled in a familiar vehicle with a familiar adult he felt safe with.

32. And in section F (provision):

• It was paramount Mr X travelled in a familiar vehicle with a familiar adult. Provision by school/home;
• Mr X would be provided with weekly one hour art therapy sessions by the Head Teacher/art therapist;
• SALT targets were to be integrated into Mr X’s daily curriculum, overseen by a SALT therapist on an assess, plan, do, review basis. To be provided by a SALT therapist;
• Mr X would be provided with a sensory diet set up by a HCPC OT in consultation with school staff, administered at regular intervals during the day, and reviewed once a term. Staff training would be conducted following OT visits to ensure time to set up initial planning for any additional sensory/physical provision Mr X might need;
• Mr X would be provided with continued assessments and updates to meet his sensory needs including completing sensory profiles. To be provided by his form tutor in conjunction with the OT; and
• Liaison with the OT to address Mr X’s needs and ensure they were integrated into his daily curriculum. Targets to be reviewed on an assess, plan, do, review basis. To be provided by staff working with Mr X and the OT.

33. Section J said no personal budget had been requested.

January to August 2022: Mrs Y’s complaint to the Council

34. In January Mrs Y complained the Council was not reimbursing her for the full cost of Mr X’s transport to and from College A.
35. The Council said in response:

• As Mr X was now 18 and would shortly be 19, it had considered his home to school transport entitlement under its post-16 Transport to Education policy. This conformed with the Government’s statutory guidance on post-16 Transport to Education and explained there was no statutory entitlement to transport for post-16 young people; and
• Its policy set out the financial contribution required towards the cost of providing travel support for young people post-16. This would usually be waived for a low- income family. The Council did not consider Mr X’s family a low- income family. Mrs Y should provide details if this was incorrect.

36. In further complaints in May and August, Mrs Y said:

• She was not receiving direct payments for some of Mr X’s EHC Plan provision, including SALT and psychotherapy;
• SALT, OT and art therapy were not being provided as set out in the EHC Plan. She thought this was being arranged through direct payments and hadn’t realised this was not the case; and
• The Council should reimburse all Mr X’s home to college transport costs, not just 80%.

37. In its final responses in August the Council said:

• The only provision regarding transport in Mr X’s plan was about travelling in a familiar vehicle with a familiar adult. There was no reference to funding;
• A personal budget request was approved in July 2021 but this was not progressed because Mr X’s needs were being met by College A;
• It referred to the note in the annual review report that Mrs Y was to chase the SEN team about funding for the private therapies for which she had been awarded a personal budget; and
• It had asked Mr X’s EHC Plan coordinator to meet Mrs Y to discuss the provision to be organised and funded through the approved personal budget.

Mrs Y’s complaint to us

38. In response to our enquiries about Mrs Y’s complaint to us, the Council told us:

• A SEN Direct Payment Request Form for Brokerage was agreed and completed in July 2021. The Direct Payments were to cover Psychotherapy, SALT and OT as identified within the EHC Plan. But the Council did not process the request because, during the consultation process, his school had identified this provision for Mr X was no longer correct;
• It expected this provision to be removed from Section F of the Plan following the annual review because it had not been provided in the previous year;
• It relied on College A, as the education provider to make the SEN provision specified in Mr X’s Plan;
• College A confirmed following the consultation it could meet Mr X’s needs. It did not say, at the annual review in October 2021, it could not meet his needs; and
• Mrs Y did not say, at the annual review, she was unhappy about the SEN provision by College A or raise any concerns about this before the Plan was finalised in December 2021.

My analysis – was there fault by the Council causing injustice?

Mr X’s SEN provision

39. I consider College A made it clear to the Council, in its response to the consultation, it would not be able to deliver parts of Mr X’s current SEN provision without sourcing external services for which additional funding would be required.
40. My view is the Council recognised this by approving a personal budget to allow Mrs Y to arrange the SEN provision College A could not provide from its existing resources.
41. If, as it says, the Council believed parts of the SEN provision in Mr X’s Plan were no longer appropriate, it had the opportunity to propose amending the Plan by removing some of the provision. It did not do this.
42. Mr X’s existing SEN provision was included in the amended final plan issued in July 2021. The personal budget approved by the Council covered payments for the parts of the provision set out in the Plan, College A had told the Council it could not deliver in-house.
43. The Council was responsible for completing the annual review in October 2021. I have not seen any reference in the paperwork to a proposal to remove any of Mr X’s SEN provision. There were no changes to the SEN provision in the amended final plan issued by the Council in December 2021.
44. I consider the Council’s response to our enquiries is somewhat confusing and contradictory. It said (a) it had cancelled the personal budget (approved in July 2021) because his school had said (in March 2021) the provision was no longer correct, but (b) included this same provision in the July 2021 Plan and said it expected College A to provide this. In my view this indicates a lack of clarity by the Council about what was in the Plan and how it was to be provided.
45. I have not seen any evidence the Council communicated with Mrs Y to explain what was happening about the delivery of Mr X’s provision, what she needed to do to arrange services following the approval of the personal budget or checked with her the provision was in place. I consider this communication failure was fault.
46. This was a new placement for Mr X. Whether or not Mrs Y raised concerns initially about Mr X’s SEN provision does not, in my view, negate our expectation the Council should have checked with College A that arrangements were in place from September 2021 for the delivery of all Mr X’s SEN provision in his Plan. I have not seen any evidence it did so. I consider this was fault by the Council.
47. The Council had a duty to put in place the SEN provision included in Mr X’s amended final plans issued in July 2021 and December 2021. My understanding is Mrs Y and College A have confirmed has not been provided from September 2021 onwards. I consider the Council’s failure to put Mr X’s SEN provision in place from September 2021 was fault.
48. Because of these faults, Mr X has missed parts of his SEN provision from September 2021.

Impact on Mr X of the missed SEN support

49. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
50. I have considered the impact on Mr X of the loss of SEN support. The move to College A was an important transition to a new learning environment. He was without SALT and OT support during this period. I understand that as at the date of this final decision, the Council has still not put Mr X’s SEN provision in place.
51. In my view the payment should be towards the middle of the scale from September 2021 until the SEN provision is put in place in accordance with his Plan.

Home to school transport costs

52. I do not consider there is anything in Mr X’s Plan saying the Council will provide Mr X with free home to college transport, outside of its published post-16 transport policy. The only reference is to the type of transport suitable for his needs.
53. Based on the evidence seen, my view is the Council has properly applied its post-16 policy by asking Mrs Y to make a contribution of 20% towards Mr X’s transport costs for the period from September 2021 until he completes his course at College A.
54. I have not found fault with the way in which the Council has assessed the proportion of Mr X’s travel costs it will reimburse to Mrs Y during this period.

The Council’s communication with Mrs Y

55. Based on the evidence seen, I consider the Council promptly and clearly communicated with Mrs Y about her queries and concerns regarding Mr X’s transport costs.
56. But as referred to in paragraph 45 above, my view is it failed to communicate properly with Mrs Y about the arrangements for putting Mr X’s SEN provision in place through a personal budget.
57. In my view these communication failures were fault which left Mrs Y confused and unsure about what was happening, causing her worry and distress.

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Agreed action

58. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y and Mr X for its failure to provide all of Z’s SEN provision from September 2021;
2. apologise to Mrs Y for its communication failures; The apologies in (a) and (b) should reflect the principles about making an effective apology set out here Guidance on remedies - Local Government and Social Care Ombudsman in in our published Guidance on Remedies;
3. pay Mrs Y £150 to reflect the worry and distress caused by the communication failures. This is a symbolic amount based on the Ombudsman’s published Guidance on Remedies; and
4. pay Mrs Y £300 for each school month from September 2021 Mr X did not receive his full SEN provision and support. This payment should be used for the benefit of Mr X’s education. I have assessed this as being:

• 9 school months from September 2021 to July 2022 - £2,700;
• 7 school months from September 2022 to May 2023 - ££2,100; and
• continuing at £300 a school month from 26 May 2023 until the date until the support in his Plan is put in place. If it is not arranged by the end of the academic year in July 2023, this will be a further £600.

59. Within three months from the date of our final decision, the Council has agreed to review its procedures for checking SEN provision has been properly put in place when a child or young person starts a new placement.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have found fault by the Council as set out above causing injustice. I have completed my investigation on the basis the Council has agreed to remedy this by completing the above actions.

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Investigator's decision on behalf of the Ombudsman