Summary: There was fault by the Council. The Council did not provide weekly skills sessions named in an Education, Health and Care plan. The Council also did not provide a member of college staff for speech and language sessions. The Council’s agreement to pay to make up for the lost sessions remedies the injustice.

The complaint

1. The complainant, Mrs X, complains for her adult son, Mr A. Mrs X says the weekly self-help, independence and keeping safe skills sessions with a key worker detailed in Mr A’s Education, Health and Care (EHC) plan were not provided in the 2022-2023 academic year.
2. Mrs X also complains that adult social care hours for respite were used to fund a support worker which should have been supplied by the college (or funded via a personal budget) during speech and language sessions. Mrs X says that this has meant the family have missed out on respite sessions which could have been used at another time.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I read the papers put in by Mrs X and discussed the complaint with her.
7. I considered the Council’s comments about the complaint and any supporting documents it provided.
8. Mrs X and the organisation 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

9. A child with special educational needs 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.
10. 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.
11. The Council, in its response to Mrs X’s official complaint accepted the weekly self-help, independence and keeping safe skills sessions with a key worker detailed in Mr A’s EHC plan were not provided in the 2022-2023 academic year. It offered to pay for the self-help, independence and keeping safe skills sessions through a direct payment. This was not set up.
12. In response to my enquiries, the Council said that to remedy the injustice it will pay Mrs X the full costs of the independent living sessions, so that she can arrange them. This is £553 and it is a satisfactory remedy to this part of the complaint.
13. Mr A’s EHC plan says that he should have ‘one weekly session of direct speech and language therapy for 45 minutes delivered in an educational setting….A trusted member of staff with whom Mr A has established a good working relationship will attend these sessions’. The EHC plans lists the funding source as ‘educational setting from funding and resources’.
14. Mrs X explained that the trusted person used in the sessions was Mr A’s social care Personal Assistant (PA), who was funded by Mr A’s social care direct payments. Mrs X argues the PA’s time should have been funded through the EHC plan, so they have been unable to use some of the direct payments for respite or social activities for Mr A.
15. The Council has said that in Mr A’s social care plan it says the care outcomes are to access work, education or training. The Council has also said that Mrs X agreed to the social care PA supporting the speech and language sessions.
16. In an email to the Council dated 5 May 2023 Mrs X said ‘I have unofficially been using the respite adult social care hours for the Speech and Language programme. The provision in Section F in the EHC plan is part of education and training and the direct payment from adult social care is for respite and supporting A with his hobbies without his parents’.
17. I accept that it was possible to use the social care PA in education sessions, as the Council suggests. But, the EHC plan provision is clear, in that it should have been a member of the college staff in the speech and language sessions, funded by education. So, there has been fault by the Council as it has not arranged the provision in the EHC plan. Mrs X has explained that this has led to problems embedding the speech and language programme in the curriculum.
18. There has been injustice caused by the fault. Mrs X has been able to fund less PA sessions for respite or social activities. In order to remedy the injustice I consider the Council should replace these sessions by additional Direct Payments.

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Agreed action

19. Within one month of the date of the decision on this complaint the Council should:
• Pay Mrs X £553.
• Provide £449 in additional Direct Payments to cover the hours used for the provision in the EHC plan.
20. The Council should provide us with evidence it has complied with the above actions.

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Final decision

21. I have completed my investigation of this complaint. This complaint is upheld, as there has been fault by the Council. The payments described above remedy the injustice to Mrs X and Mr A.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman