Summary: Mrs X complained the Council delayed issuing her child, Child Y’s final amended Education Health and Care plan following a Tribunal order and a delay in providing the personal budget and reasonable expenses. The Council was at fault, which caused Mrs X distress, uncertainty, time and trouble and caused Child Y distress. The Council will apologise for the delays and pay both Mrs X and Child Y a symbolic payment to remedy the injustice caused.

The complaint

1. Mrs X complained the Council:
• delayed issuing her child, Child Y’s amended Education Health and Care (EHC) plan between 18 November 2022 and 20 January 2023 (following the SEND Tribunal order dated 13 October 2022) with a finalised personal budget;
• failed to provide provision set out in Child Y’s final amended EHC plan;
• delayed providing the full personal budget to fund the provision set out in Child Y’s amended EHC plan dated 20 January 2023; and
• delayed paying reasonable expenses.

As a result, Mrs X says the delay in receiving the personal budget payment led to missed

provision and distress.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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. 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 have and have not investigated

7. We would usually only investigate events up to 12 months before a complaint to us. Mrs X complained in November 2022 about events from March 2021.
8. Mrs X complained the Council failed to provide Child Y with suitable education between March 2021 and February 2022 when it issued Child Y’s first Education Health and Care (EHC) plan issued in February 2022. Child Y’s school, School 1, referred him to the Council’s out of school tuition (OOST) service and a package was put in place for up to 25 hours of provision per week, including 5 hours per week with a qualified teacher. This was kept under review and remained in place until the EHC plan was issued. There are no good reasons for the delay complaining about this package and no evidence of fault that would justify us investigating this.
9. Mrs X had a right of appeal to the SEND Tribunal when the EHC plan was issued in February 2022, which she exercised. The appeal related to the provision set out in the plan and the placement named. The law says we cannot consider matters that are closely related to an appeal. Therefore, I cannot consider a complaint about the support provided during the appeal period.
10. On this basis, I have investigated the period from mid-October 2022 when the Tribunal issued its order concluding the appeal.

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How I considered this complaint

11. I considered:
• the information Mrs X provided;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
12. Mrs 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 law and guidance

13. A child with special educational needs (SEN) 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.
14. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.
• Section J: Personal budget.
15. 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.
16. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. 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 EHC plan has been issued.

The Hillingdon judgement

17. 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. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Suitable education

18. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. 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)
20. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
21. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
22. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

23. Child Y lives with their family and has special educational needs. Child Y attended School 1 until March 2021 and then received out of school tuition (OOST) education other than at school (EOTAS) but was on-roll at School 1 until late January 2023. This investigation covers the period from mid-October 2022 to early September 2023.
24. In mid-October 2022 the Tribunal said:
• Child Y needed education other than at school (EOTAS) and the named school should be removed, leaving Section I blank;
• the Council needed to liaise with School 1 to receive accurate costing for the appropriate computer and associated software and content for a computer science module; and
• Child Y should continue to receive a gym pass for swimming lessons for a minimum of three times per week.
25. In mid-November 2022, the Council sent Mrs X, Child Y’s amended EHC plan.
26. The same day Mrs X emailed the Council and complained the amended EHC plan was inaccurate, Section J which related to Child Y’s personal budget was blank and she had submitted a complaint to the Ombudsman.
27. In late November 2022 the Council sent Mrs X a provision map in line with the Tribunal order and asked her to identify any missed provision. The Council asked Mrs X if she wanted to commission the provision and the Council pay for it or if she wanted a personal budget. The Council also apologised for the errors in the amended EHC plan and provided Mrs X with an amended version.
28. The next day Mrs X responded to the Council and highlighted the provision listed in the amended EHC plan that was not listed or costed in the provision map. Mrs X requested a personal budget.
29. In early December 2022 Mrs X emailed the Council and complained she had still not received a response about the final EHC plan or provision map and asked for an update on timescales.
30. In late December 2022 Mrs X sent the Council some further costings for some items on the provision map.
31. The next day the Council responded to Mrs X’s stage 1 complaint. It said:
• it issued Child Y’s final EHC plan in mid-November 2022 within five weeks of the Tribunal order which was in line with the Tribunal order timescale. However there were some inaccuracies in the content and the Council had already apologised for these;
• there was disagreement about what should be in Child Y’s personal budget and parts of the provision as written into the agreed EHC plan;
• additional information would be sought relating to costs and the exact content of the personal budget;
• it apologised about the delay in providing a provision map which it accepted it could have completed quicker;
• it upheld Mrs X’s complaint about the timescales in agreeing the provision map but not the content of the provision map;
• most items had been costed but two items were outstanding;
• the latest costings were £33,716.56 and senior officers had agreed to advance Mrs X £25,000 pending the final amount; and
• it would send Mrs Y part of the personal budget, and the balance would be paid once the final costings had been received and agreed.
32. In early January 2023 Mrs X wrote to the Council and said Child Y could not attend an adult centre going forward and it was agreed one to one online tuition could meet Child Y’s needs.
33. A day later the Council received accurate costings for an appropriate computer and computer software and content from School 1 for Child Y’s computer science module. Following this information the Council updated Child Y’s provision map and personal budget.
34. In late January 2023 the Council issued Child Y’s final amended EHC plan including a personal budget.
35. Throughout January and February 2023 the Council continued to pay for Child Y’s OOST.
36. Mrs X remained unhappy and made a stage 2 complaint.
37. In late February 2023 the Council responded to Mrs X’s Stage 2 complaint and said:
• her complaint about delay in issuing Child Y’s final EHC plan with an itemised personal budget was upheld;
• Mrs X provided costings for some items on the provision map in late December 2022, Mrs X decided Child Y did not require attendance at an adult centre in early January 2023, the Council received outstanding computer information from School 1 in early January 2023, after which it finalised Child Y’s personal budget and Child Y’s EHC plan;
• it had spoken to Mrs X about her provision map queries and explained they were in line with the Tribunal decision so the complaint about the contents of the provision map was not upheld;
• Child Y was on roll at School 1 until late January 2023 and School 1 was responsible for Child Y’s provision until Child Y’s final amended EHC plan was issued in late January 2023;
• the Council continued to fund OOST provision from late January to February 2023 half term. It said if the personal budget payment was not made by late February 2023 OOST provision would continue for ‘a couple more weeks to ensure Child Y had access to the provision.’;
• due to the delay in the payment of the personal budget it would pay reasonable expenses between the date of Child Y’s EHC plan and the date the personal budget was paid where it could be shown to be part of Child Y’s EHC plan provision and these could be taken from the personal budget;
• it apologised for the delay in paying the personal budget and said it would make a first payment of the personal budget of £25,000 as soon as possible;
• it would review staff guidance and training for paying personal budgets; and
• if Mrs X remained unsatisfied she could complain to us, which she already had.

Enquiries

38. In response to my enquiries the Council said:
• the final budget of £35,396.56 had been paid to Mrs X and backdated to January 2023;
• Child Y was receiving all the provision set out in the Tribunal order, provision map and final amended EHC plan;
• given the delay in the payment of the personal budget the Council paid Mrs X £500 to cover reasonable expenses;
• it would offer a further £250 as a financial remedy for distress, time and trouble it has caused Mrs X and her family; and
• in February 2023 a reorganisation of the Council SEND department meant staff had been given more guidance and training on personal budgets and were evaluated on a weekly basis by a senior officer.
39. In response to my enquiries Mrs X said:
• Child Y was still missing provision because she only received the personal budget in mid-March 2023 and Child Y did not receive the promised transition between the OOST and the EOTAS package, impacting on Child Y’s ability to engage with their new tutors;
• she received £25,000 in mid-March 2023 and approximately £10,000 had not been paid as agreed; and
• she was able to claim back £1727.73 reasonable expenses from the £25,000 payment.
40. In response to my further enquiries the Council:
• confirmed it paid Mrs X a £500 one off payment in late February 2023 to cover reasonable expenses including personal assistant mileage and support required by Child Y;
• confirmed in mid-March 2023 it paid Mrs X £25,000 which was a first payment for Child Y’s EHC plan personal budget; and
• said it requested the outstanding EHC plan personal budget payment of £10,396.56 but it had not yet been paid because the payment took time to be processed by its financial system.
41. In response to my further enquiries, Mrs X confirmed the Council:
• had paid her the first personal budget payment of £25,000 in mid-March 2023;
• had paid her a one off £500 payment for milage. She provided an email from the Council confirming this was for mileage only;
• the Council stage 2 response included a comment about claiming back expenses from the personal budget. Mrs X said this should have been an additional amount, not included in the personal budget for the years provision.
• the Council had paid her £2808 for personal assistant wages and support to access the community in November 2022, which was when School 1 was providing an educational package for Child Y; and
• had not paid the outstanding £10,396.56 payment.

My findings

42. The Council should have issued Child Y’s final amended EHC plan within five weeks of the Tribunal, by mid-November 2022. The Council issued an updated EHC plan by the five-week deadline. However, Child Y’s provision was not finalised and the itemised personal budget could not be agreed. The final EHC plan was not issued until late January 2023, which was a delay of two months.
43. That said, the Council was required to consult with School 1 and only received the information it needed in early January 2023. Further, Mrs X only gave the Council information about the adult centre in early January 2023. There was no undue delay in finalising the EHC plan after the Council received all the information it needed.
44. The Council accepted it could have acted more quickly to finalise the provision map and personal budget following the Tribunal order, which was fault. It has already apologised to Mrs X, which is an appropriate remedy for the frustration caused to her. It did not cause an injustice to Child Y because they continued to receive the OOST package.
45. In late December 2022, the Council said it would advance £25,000 of Child Y’s personal budget, pending the final amount to be agreed. It did not pay this until mid-March 2023. This delay was fault and caused Mrs X time and trouble pursuing the Council. It also meant a delay in Child Y receiving the equipment set out in their EHC plan, which is an injustice to them.
46. The Council paid Mrs X a one off £500 payment in late February 2023. Its email to Mrs X said this was for mileage costs. These were not included in the personal budget. In its stage 2 complaint response, it also authorised Mrs X to claim reasonable expenses in arranging provision for Child Y from 20 January 2023 from the personal budget in view of its delay in finalising the budget. Mrs X argues the Council should pay these sums in addition to the personal budget, given the way the Council worded its offer. However, since the items in dispute are itemised in the personal budget, it was not fault for the Council to say Mrs X should claim against that. Although paid late, the personal budget was back-dated to January 2023. However, as a result of the Council delay in paying the personal budget, Child Y did not receive a transition between OOST and new EOTAS tutors in late February 2023 which the Council had agreed to provide in its stage 2 response in recognition of Child Y’s need for extra support to manage the change. This was further fault and caused Child Y distress.
47. At the time of writing this decision the outstanding balance of Child Y’s personal budget of £10,396.56 was still being processed by the Council. This delay is fault and caused Mrs X distress, uncertainty and avoidable time and trouble. The Council offered to pay Mrs X £250 to remedy this.

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Agreed action

48. Within one week of the final decision the Council will pay Mrs X the outstanding personal budget payment of £10,396.56.
49. Within one month of the final decision the Council will:
• apologise for the delay in processing Child Y’s outstanding personal budget payment;
• pay Mrs X £250 for the distress, uncertainty, time and trouble the delay in processing Child Y’s personal budget payments caused;
• pay Child Y £250 for the distress caused by the delay in making the personal budget payments which meant Child Y did not receive a transition between tutors or receive equipment earlier;
• provide evidence of the new training and guidance delivered to relevant staff on personal budget payments. If this has not yet been delivered, the Council will provide evidence of the proposed content and information about the proposed timescales for delivery.

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Final decision

50. I have completed my investigation finding fault causing personal injustice to Mrs X and Child Y. The Council has agreed to take action to prevent reoccurrence of the fault.

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Investigator's decision on behalf of the Ombudsman