Summary: The Council failed to provide evidence of compliance with all the recommendations we made when considering Ms X’s complaint about its failure to put in place the provisions of her child’s Education Health and Care Plan and response to her personal budget request. We found fault as the Council failed to comply with all the recommendations we made causing added frustration and uncertainty to Ms X. We have made further recommendations and so have completed our investigation.

The complaint

1. I have called the complainant Ms X. Ms X complained to us in 2022 about the Council’s failure to put in place the provision set out in her child, Y’s Education, Health and Care Plan (EHC Plan).
2. She also complained the Council:

• Delayed responding to her personal budget request.
• Failed to carry out the annual review prior to Y’s transition to secondary school.
• Delayed the complaint process.
• Failed to provide information she requested.

3. Ms X said Y missed out on provision they needed for their development and wellbeing. She also said it placed a significant strain on the family. Ms X said she experienced distress and spent many hours trying to resolve the situation with the Council.
4. We investigated Ms X’s complaint. Full details of the case can be found in the published decision. But in summary we found fault with the Council for failing to put in place the provision in Y’s EHC Plan. We also found fault with the annual review process, record keeping and complaint handling. This caused Y an injustice because they missed out on provision they should have received. The Council agreed actions to remedy the complaint.
5. The actions the Council agreed to within one month of the final decision were to:

• Pay Y £12900 in recognition of missed provision from September 2019 to April 2021.
• Pay Ms X £700 in recognition of the distress, frustration, time, and trouble it caused her.
• Provide evidence the personal budget is being paid to Ms X and the provision set out in Y’s EHC Plan is in place.

6. Within three months of the final decision the Council agreed to:

• Review its personal budget policy and provide the Ombudsman with evidence of how it will avoid the delays and issues identified in this case.
• Review its monitoring arrangements for EHC Plan provision that is provided by schools. It should be able to demonstrate how it has used the learning from this case to improve its practice in this area to ensure accurate record keeping and audit trails.

7. The Council would provide the Ombudsman with evidence it completed the agreed actions.
8. We have registered this new complaint against the Council as it failed to provide evidence of compliance with recommendations we made in the previous complaint. This has caused Ms X additional frustration and uncertainty.

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The Ombudsman’s role and powers

9. 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)
10. 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

11. I have produced this decision statement after the Council failed to carry out the recommendations we made in our final decision on Ms X’s complaint in September 2022. I considered how the Council responded to our requests for updates on the case.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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

What happened after our decision on Ms X’s previous complaint

14. We issued our final decision on 15 September 2022. On 14 October 2022 the Council told us it had set up a total payment of £13,600 to pay to Ms X and would confirm transfer in a few days. The Council said officers were in contact with Ms X about the provision in Y’s ECH Plan. It was aiming to set up hydrotherapy sessions which was one of the provisions in Y’s EHC Plan. The Council sent a copy of the personal budget agreement for Y. We acknowledged the Council’s email and said we awaited further confirmation of the payment, and the hydrotherapy sessions were in place.
15. The Council confirmed its payment to Ms X on 25 October 2022. It had secured a swimming pool for Y’s hydrotherapy and was arranging sessions. The Council said it would provide Ms X with details and a start date soon. We acknowledged the Council’s email and asked for confirmation and evidence once the hydrotherapy sessions were in place. We emailed the Council again on 25 November 2002 asking for a response by 9 December 2022.
16. On 6 December 2022 the Council provided us with a three-month update from our final decision. The agreed actions were to:

• Review its personal budget policy and provide the Ombudsman with evidence of how it will avoid the delays and issues identified in this case.
• Review its monitoring arrangements for EHC Plan provision that is provided by schools. It should be able to demonstrate how it has used the learning from this case to improve its practice in this area to ensure accurate record keeping and audit trails.

17. In response to the review of its personal budget policy the Council said it was not aware of any delays it caused regarding the personal budget in this case. It considered the difficulties were with Ms X providing evidence of spending and irregularities with the information provided. In response to the reviewing of monitoring arrangements for EHC Plan provision provided by schools, the Council said it had amended the annual review form for schools to use. This would help it monitor the provision provided by schools which included therapy provision.
18. The Council said it had emailed Ms X about the time and date of hydrotherapy sessions and was waiting to hear from her.
19. We responded to the Council’s email on 9 December 2022 and referred to the final decision statement where we outlined significant delays by the Council in the personal budget process. We found this caused injustice to both Y and Ms X as Y missed out on provision and Ms X experienced time, trouble and frustration chasing the Council about the budget over many months. We noted the Council accepted the findings and recommendations when we issued our draft decision. We asked the Council to carry out a review of its personal budget policy as it had agreed to do.
20. We asked the Council to provide a copy of the amended annual review form for schools as it may satisfy the second part of the three-month recommendations.
21. The Council replied on 22 December 2022 apologising the information previously provided did not satisfy the recommendations made and it agreed to review its responses. The Council provided a copy of the amended annual review form for schools. It asked for more time to respond to the review of the personal budget policy and to provide evidence of how it will avoid the delays and issues identified in this case. We agreed to allow the Council to 17 January 2023 to respond.
22. The Council responded on 11 January 2023. It apologised it had misinterpreted our recommendation about reviewing the personal budget policy and providing evidence of how it will avoid the delays and issues identified in this case. The Council said its response from the SEN service was:

“ The service provides a form which the parent/s complete and sends to their co-ordinator. This will be considered at the next resource panel which are held fortnightly. If agreed, this information is passed to finance to set up the Personal Budget. If it is not agreed, full reasons for this will be given to the parent/s within 1 week of the panel meeting”

23. The Council asked us to confirm the outstanding recommendation was now satisfied.
24. We wrote to the Council on 26 January 2023 advising our recommendations in Ms X’s case including providing us with evidence it had completed the agreed actions. The Council had sent several updates to evidence how it had complied with the recommendations. But was yet to send satisfactory evidence the provisions set out in the EHC Plan were being provided. We noted the Council said on 6 December 2022 it was waiting for Ms X to respond to its proposals for the hydrotherapy sessions. But we had received no further information since that date.
25. We noted the Council suggested there had been no delay in the case so there would be no review of the personal budget policy. This was despite agreeing to the recommendations before we issued the final decision. We advised we had written to the Council explaining why we did not accept the response and the Council asked for more time to respond on reviewing the personal budget policy.
26. We did not consider the Council’s response about providing a form to parents provided evidence it had reviewed the personal budget policy as agreed. The information gave a brief indication of how it intended to avoid delays but provided no evidence to show it had been formalised by a change to the policy. We considered it unacceptable the Council had failed to comply with all the recommendations made despite it being four months from the decision date and being given further opportunities to provide the required information.
27. We advised the Council we would be registering a new complaint against it for non-compliance with our recommendations and created the new complaint.

Council action since we registered the new complaint

28. The Council responded on 3 February 2023 sending confirmation it had booked the hydrotherapy sessions to start from 24 February 2023. But it was waiting for Ms X to confirm her agreement to the dates and times arranged. The Council said it would send confirmation of the agreement once it contacted Ms X. We acknowledged the Council’s contact about the hydrotherapy and asked if there were any further information or comments about the failure to review the personal budget policy.
29. The Council replied and apologised its response to the agreed action relating to its personal budget policy was confused and insufficient. It confirmed it had reviewed its policy and determined it was in line with the standard policy of other Local Authorities. And as such, proposed no amendments. The review found the failure was due to the practice at the time and not with the policy itself. The current service management were committed to ensuring it did not happen again in the future and had highlighted appropriate timescales to all officers.
30. Whilst we welcomed the information provided, we remained of the view this could and should have been actioned and evidenced much sooner. We make service improvement recommendations alongside those to remedy individual injustice to try to prevent further recurrence of issues and problems and reduce the potential for others to be affected in a similar way. The failure to review the policy as agreed, could have left other users vulnerable to the issues Ms X had experienced for a prolonged period. Despite constantly chasing and reminding the Council of the need for compliance, it did not send further information until after a new complaint had been registered.
31. On 20 February 2023 we advised the Council there remained an outstanding recommendation to be complied with. This was:

• Provide evidence the personal budget is being paid to Ms X and the provision set out in Y’s EHC Plan is in place.

32. We acknowledged the Council sent us information about the hydrotherapy sessions, but it did not cover all the provisions in the EHC Plan. We had spoken to Ms X who advised the hydrotherapy was still not in place and sessions yet to start. Ms X also said Y was not receiving music therapy sessions, another of Y’s provisions. We asked the Council to send us comments and provide the evidence requested in the recommendation.
33. The Council responded on 3 March 2023 sending evidence of personal budget payments to Ms X. It advised Y’s music therapy provision was due to be one term each academic year and sent evidence the sessions would be in the summer term of the academic year 2022 to 2023.
34. The Council sent evidence of a recent meeting with Y’s school to discuss each provision in Y’s EHC Plan. It was reassured Y was receiving all provision specified in the EHC Plan. It found one remaining action, a referral to a social care occupational therapist had not been carried out so was now being done. The Council confirmed the hydrotherapy sessions started on 24 February 2023.
35. The Council apologised the required action was not successfully completed previously.
36. We consider the Council has now complied with the original remedy in Ms Y’s case.

My assessment

37. We send a draft decision on a case to a council and complainant to give both an opportunity to comment on the provisional conclusions. We expect councils to ensure the draft decision is sent to the relevant service to consider and comment on if necessary. We are clear in our covering letter to the draft decision this should be done and for the Council to confirm it agrees with any draft recommendations. We sent the draft decision in Ms X’s case to the Council and the Council accepted our draft conclusions and recommendations.
38. The Council later questioned our conclusions while we were seeking compliance which suggests that internal consultation on the draft decision was not properly carried out. The Council should ensure it has robust procedures in place to enable draft decisions to be sent to the relevant services for comments and responded to at this stage. This is the Council’s opportunity to do so. The Council should not be querying the decision once it has agreed to the draft decision and recommendations.
39. The Council’s failure to implement in full the agreed remedy in Ms X’s case represents a serious failure in its corporate governance arrangements and oversight. When a council agrees to take the action we have recommended, it should be accountable and make every effort to comply. If it were not for the compliance checking that we carry out it seems likely that this and potentially other cases would be allowed to drift without honouring all the agreed remedy. This is a serious breach of trust, which risks undermining public confidence in the Council and in the current consensual system of administrative justice through the Ombudsman.
40. Although the Council complied with parts of the remedy it failed to provide evidence of the personal budget payments to Ms X, ensure all the EHC Plan provision was in place and review its personal budget policy until we advised we were registering a new complaint. This is fault by the Council.
41. I consider the Council’s non-compliance with an agreed remedy has caused Ms X further frustration and uncertainty. I have recommended a financial payment for the additional injustice the Council’s non-compliance has caused Ms X. The Council’s failure to comply with the wider service improvement recommendations we made in Ms X’s complaint increased the potential for other residents to experience similar issues and problems.

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Agreed action

42. Within one month of my final decision the Council will:
• Apologise to Ms X for the delay in complying with the previous recommendations made in case 20005011 and pay her £200 for the additional frustration and uncertainty she has been caused.
• Ensure it has procedures in place so its responses to our draft decisions have been considered and are robust.
• Confirm it has procedures in place to ensure timely compliance with agreed remedies.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I am completing my investigation. The Council was at fault as it failed to ensure it complied fully with the recommendations we made in Ms X’s previous complaint. I have recommended a suitable remedy in this case.

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Investigator's decision on behalf of the Ombudsman