Summary: Ms D complained the Council has failed to provide her son with an education after the SEND Tribunal’s decision in June 2022. She also says the Council delayed responding to her complaint about the matter. We find the Council was at fault for failing to deliver the education and provision in Ms D’s son’s Education, Health and Care Plan. It also significantly delayed responding to Ms D’s complaint. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Ms D complained the Council has failed to provide her son (Mr E) with an education after the SEND Tribunal’s decision in June 2022. She also says the Council delayed responding to her complaint about the matter.
2. Ms D says the matter has caused distress and upset. She says Mr E’s anxiety has increased significantly.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by someone we consider to be suitable.(Local Government Act 1974, section 26A(2), as amended)
6. 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.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. 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

9. I considered information from Ms D. I made written enquiries of the Council and considered information it sent in response.
10. Ms D 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

Education, Health and Care Plans

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the SEND Tribunal or the council can do this. 
12. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
13. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.

Compliance with the SEND Tribunal order

14. Where the SEND Tribunal orders a council to amend an EHC Plan, the council shall amend the EHC Plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014).

Personal budget

15. A personal budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a personal budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
16. The final allocation of a personal budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.

The Council’s complaints policy

17. At stage one (local resolution) the service will acknowledge the complaint within three working days and provide a full reply within 20 working days.
18. If the complainant remains dissatisfied, they may escalate to stage two and a formal response will be provided within 20 working days but may take up to 65 working days with complex complaints.

What happened

19. This chronology includes an overview of key events and does not detail everything that happened.
20. Mr E has special educational needs and an EHC Plan.
21. Ms D appealed to the SEND Tribunal about the content of Mr E’s EHC Plan. The SEND Tribunal issued an order in mid-June 2022 and directed the Council to amend the Section F provision in Mr E’s EHC Plan. The order also stated Mr E would receive Education Otherwise Than In College (EOTIC).
22. The Council agreed a personal budget for the provision in Mr E’s EHC Plan at the end of June.
23. The Council issued Mr E’s amended EHC Plan in early August. It apologised for the delay in issuing it. Section F of Mr E’s EHC Plan included weekly 30-minute sessions of direct 1:1 speech and language therapy (SALT) and a mentoring package (four hours a week) from a trained mentor. It also included online access to an animation qualification (10 hours per week) and one-hour occupational therapy (OT) sessions every two weeks.
24. Ms D emailed the Council in early September about the funding in the personal budget. She said she wanted it to release the money so Mr E could access the provision in his EHC Plan. The Council responded and said the paperwork was complete. It said it would investigate the matter and get back to her.
25. Ms D chased the Council for a response two weeks later. The Council asked Ms D to complete the personal budget form. It said it would then forward the matter to a charity (Charity A) who would oversee Mr E’s personal budget. Ms D signed the form. She agreed to receive the personal budget through direct payments.
26. Ms D sent further chaser emails to the Council in October and November. She said Mr E was without any provision because it had not released the funding in his personal budget. She said she would seek legal advice if it did not reply within seven days. The Council emailed Ms D in November and said it had sent the completed personal budget paperwork to Charity A. It apologised for the delay and said it was due to staffing issues.
27. Charity A rejected the Council’s referral because the Council failed to send a signed direct payments agreement.
28. Ms D sent a formal complaint to the Council in mid-November about its failure to secure the personal budget in Mr E’s EHC Plan. The Council acknowledged Ms D’s complaint at the end of November. It said it would try to reply within 20 working days.
29. Ms D instructed a solicitor because of the ongoing issues. Her solicitor wrote to the Council in December about its failure to provide Mr E with the provision in his EHC Plan. The Council responded and said it was working on Mr E’s personal budget.
30. Ms D sourced an occupational therapist to provide four sessions of OT for Mr E in January 2023. However, the sessions ended as the Council failed to pay the therapist’s invoices.
31. Ms D’s solicitor sent the Council further correspondence at the end of January 2023. She said the Council had failed to comply with the law and it was causing a decline in Mr E’s mental health. The Council did not reply to this letter.
32. Ms D emailed the Council in March and provided her new email address. The Council responded and said it would update its database.
33. The Council reviewed Mr E’s case in June. It sent a new personal budget form to Charity A in July. Charity A responded and said a Council officer needed to sign the form. It also asked for clarification on the hours and costs allocated to the provision in Mr E’s EHC Plan. Charity A sent a chaser email the following week. It said the matter was urgent because it originally rejected the referral in November 2022. It said it could not accept the referral until the Council had answered its questions.
34. The Council emailed Ms D on 24 July and apologised for the delay in responding to her complaint. It said it had a backlog of complaints requiring a response and it had put in place an action plan to resolve the matter. The Council sent the response to Ms D’s old email address and so she did not receive it.
35. The Council issued its stage one response to Ms D’s complaint on 29 December. It sent the response to Ms D’s old email address. It apologised for the delay. It said there had been several attempts to resolve the personal budget and it had referred the matter to a senior officer.

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Analysis

36. Ms D refers to matters from June 2022, but she did not refer complaint to us until October 2023. Normally historical issues would be caught out by the restriction in paragraph four of this statement. However, this was an ongoing matter affected by continual delays. Ms D started the complaint process in November 2022, but the Council did not respond until the end of December 2023. Therefore, I have exercised discretion to look at Ms D’s complaint from June 2022.
37. The Council should have issued Mr E’s EHC Plan by 27 July 2022. Instead, it issued it on 5 August 2022, which is just over one week late. This delay is relatively minor, and the Council apologised for the delay. This is sufficient to remedy the frustration caused to Mr E and Ms D.
38. The Council has failed to provide Mr E with any education or special educational provision since it issued his EHC Plan in August 2022. It did not send the personal budget paperwork to Charity A until November 2022, even though it agreed the personal budget in June 2022. It failed to send the signed direct payments form with the referral in November 2022, and then failed to resolve it. It has also failed to answer Charity A’s questions from July 2023 about Mr E’s provision. There is no evidence the Council has responded to Charity A since July 2023 or has taken any substantive action to resolve the matter.
39. When the Council responded to my enquiries, it accepted it has failed to arrange Mr E’s EOTIC package. It also said it failed to arrange an annual review since August 2022 because it did not update its database to reflect the change in placement from a college to EOTIC. It has profusely apologised for the upset and distress caused. It says it will review Mr E’s EHC Plan, pay a suitable amount for Mr E’s missed education and the distress caused to him and Ms D and finalise the direct payments agreement. I welcome the Council has now acknowledged its significant faults.
40. The Council’s faults have caused Mr E a significant injustice. He has missed out on a year and a half of education and special educational provision. The only provision he has received is four OT sessions which is what Ms D organised, not the Council. He has not had access to his animation course, his mentoring package, SALT and majority of his OT. This has had a detrimental impact on Mr E’s progression. The Council’s failure to organise an annual review means there was a lost opportunity to address the lack of education and provision and Mr E’s EHC Plan is not up to date with his current needs.
41. The Council’s faults have caused Ms D frustration, distress and upset. She is understandably very worried about Mr E and his mental health. The Council’s failure to review Mr E’s EHC Plan also means her appeal rights to the SEND Tribunal have been frustrated.
42. The Council also significantly delayed responding to Ms D’s complaint. It has taken over a year to respond at stage one, when it should have taken 20 working days. The Council failed to update Ms D’s email address on its internal system, which means she did not receive its update letter from July 2023, or its stage one response of December 2023. The stage one complaint response also did not provide any clear timescales on when it would resolve the matter or offer any remedy for the injustice caused by the faults identified. The faults in the Council’s complaints handing have added to Ms D’s distress and frustration.
43. We issued a public report in June 2023 and highlighted the Council’s significant delays in dealing with complaints. The Council agreed to develop an action plan to resolve the backlogs. It has now developed a complaints backlog team and recruitment for the team is ongoing. We have also recently asked the Council in other investigations to review how it deals with personal budgets to ensure they are processed promptly. Therefore, I have not recommended any further service improvements.

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Agreed action

44. To address the injustice caused by fault, by 30 April 2024 the Council has agreed to:

• Apologise to Ms D and Mr E for the significant injustice caused by the faults identified.
• Pay Ms D £400 to reflect the distress, frustration and upset caused by the failure deliver Mr E’s EOTIC package and her frustrated appeal rights to the SEND Tribunal.
• Pay Ms D £250 for the frustration caused by the significant delays dealing with her complaint and the failure to communicate with her at the correct email address.
• Pay Ms D £8,000 for the loss of Mr E’s educational and special educational provision from September 2022 to March 2024. We would suggest this money is used for Mr E’s educational benefit.
• Resolve the issues with Mr E’s direct payments package so he can start accessing his EOTIC package.
• Arrange a review of Mr E’s EHC Plan. The Council should conduct the annual review as soon as possible, taking account of the timescales set out in the SEN Code of Practice.

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

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Final decision

46. There was fault by the Council, which caused Ms D and Mr E an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman