Summary: We found fault in the Council’s failure to provide suitable education for the complainant’s son (Y) from the end of February until mid-June 2023, in its failure to ensure all Y’s special educational provision were delivered to him and in the way the Council dealt with the complainant’s (Ms X) complaint. We did not find fault in the Council’s personal budget process. The Council’s fault caused injustice to Y and Ms X. The Council agreed to apologise, make symbolic payments and review its complaint handling.

The complaint

1. Ms X, complaining on behalf of her son Y, says the Council failed to deliver all special educational provision included in Y’s Education Health and Care (EHC) Plan from January 2020.
2. Ms X says the Council’s failings significantly impacted Y’s academic progress and affected his development and well-being. They meant Y is not achieving in line with his academic potential.

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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 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)
5. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
6. 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)
7. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
8. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
9. 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)
10. 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

11. I have not investigated delivery of special educational provision for Y before January 2023. We normally investigate the events which happened within 12 months from when the complainant came to us. Ms X first contacted us about her complaint in January 2024, therefore I will investigate what happened from January 2023. I can see no good reasons to exercise our discretion as Ms X could have complained earlier about the Council’s support for Y.
12. Besides I cannot investigate delivery of special educational provision for Y during Ms X’s appeal to the SEND Tribunal. As explained in paragraph seven of this decision we cannot investigate anything that is linked to the appeal or the consequences of the Council’s decision which has been appealed, including the delivery of alternative provision if the school placement has been appealed. Ms X appealed Sections B, F and I of Y’s EHC Plan issued in January 2020. The SEND Tribunal issued a Consent Order in January 2022. Because of the extent of Ms X’s appeal, even if Ms X’s complaint had not been late, we would not have investigated delivery of special educational provision before February 2022.
13. I cannot investigate delivery of education and special educational provision for Y from mid-June 2023. This is because in March 2024 Ms X brought judicial review against the Council, claiming the Council failed to provide suitable education to Y under its Section 19 duty and failed to deliver special educational provision included in Y’s EHC Plan from mid-June 2023. As explained in paragraph five of this decision we cannot look at anything that has already been brought to court.

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How I considered this complaint

14. I talked to Ms X and considered the information she provided.
15. I made enquiries with the Council and considered the information it provided.
16. Ms 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

Legislative and administrative framework

Delivery of education and special educational provision

17. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Personal budget

20. A personal budget is money identified by a council to deliver provision set out in an EHC Plan where the parent or young person is involved in securing the provision.
21. Where a council refuses to make direct payment it must:
• Inform the child’s parents in writing of its decision, providing the reasons and informing of the right to request a review;
• Carry out a review of its decision, if requested to do so, considering any representations made by the child’s parent;
• Inform the child’s parent in writing of the outcome of the review, giving reasons.

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 7)

22. Councils must consider each request for a personal budget on its individual merits. It can refuse a personal budget if the sum is part of a larger amount and disaggregation of the funds for the personal budget would have an adverse impact on services provided or arranged by the council for other EHC Plan holders, or it would not be an efficient use of the council’s resources.

Corporate complaints

23. The Council’s policy on corporate complaints says the Council:
• Will acknowledge complaints within five working days;
• Will respond at stage one within 20 working days;
• If the complaint is escalated to stage two, it will respond within 40 working days.

What happened

Background

24. Y is autistic and has had an EHC Plan since January 2020.
25. Ms X appealed Sections B, F and I of Y’s EHC Plan issued in January 2020. Two years later the SEND Tribunal closed the appeal with a Consent Order. At the end of January 2022 the Council issued Y’s post-Tribunal EHC Plan. The EHC Plan included provision for:
• 27 hours per year of direct and indirect Speech and Language Therapy (SLT);
• 33 hours per year of direct and indirect Occupational Therapy (OT);
• 1 hour per week of individual psychological therapy;
• Special residential school (School 1)
26. School 1 refused to admit Y and it challenged the Council through the judicial review process.
27. In 2021 the Council started funding an Education Otherwise than at School (EOTAS) package for Y, which included 19 hours of tutoring delivered by a specialist tutor from the tutoring agency (Tutoring Agency 1).

From January 2023 until mid-June 2023

28. At the beginning of January 2023 the Council sent Ms X a letter specifying what the Council agreed to provide and fund for Y in the school year 2022/2023.
1. The Council would commission directly from the providers:
1. 19 hours per week of tutoring from Provider 1 during term time
2. 34 sessions of horse riding
3. 25 sessions of OT
4. 29 sessions of SLT
5. 1 hour weekly of modified Cognitive Behaviour Therapy
2. The Council would fund through direct payments:
1. Horse riding equipment
2. Laptop and software
3. Software training
4. Leisure centre membership, including the cost of swimming lessons
29. Two days later Ms X asked the Council to amend the agreed package by additional four hours a week of face-to-face tutoring from a different provider (Provider 2). Ms X made the Council aware she was seeking some face-to-face tuition with Provider 1. She applied for the Council’s funding to cover transport to Provider 1 for one day a week. Ms X confirmed Y started receiving weekly SLT and his weekly OT would start imminently.
30. At the end of January the Council explained it would not agree to fund the cost of a laptop, software and training provided by Ms X as it was much more expensive than the Council’s proposal and would be inefficient use of public funds. The Council confirmed it agreed to additional four hours of tutoring a week with Provider 2.
31. Following the first multi-disciplinary meeting at the beginning of February 2023 Ms X told the Council Y would not be attending tuition sessions with Provider 1. She said he could not access online learning and his needs were not met by Provider 1.
32. The Council booked the Annual Review date for Y for the second week of March. It told Ms X this would be an opportunity to discuss her concerns about Provider 1. The Council said it would consult with other tutoring agencies to identify possible alternative services for Y.
33. The Council paid Ms X £2,904 as direct payment in accordance with its correspondence from the beginning of January 2023.
34. The Council cancelled the review meeting booked for March 2023. At the beginning of March 2023 the Council found two tutoring agencies which could support Y with his education through a face-to-face tutoring. The Council could not provide the evidence it had offered this tutoring for Y to Ms X.
35. Ms X told the Council that online tutoring was not suitable for Y and she asked for face-to-face tutoring for him. Y’s SLT and clinical psychologist supported this position. Ms X also sent to the Council the views of Y’s previous tutor.
36. At the end of March Ms X’s legal representative advised the Council Ms X had identified a number of suitable tutors with the immediate availability to start. The Council held meetings with Ms X but in mid-July told her it would not reimburse the cost of Y's tutoring for the spring and summer term of 2023. The Council told Ms X that as previously stated it would reconsider its position on Y’s tutoring at the Annual Review and referred her to its online information about personal budgets.
37. Annual Review meeting for Y took place a few days after this correspondence.
38. In the spring and summer terms of 2023 the Council funded 14.6 hours of SLT and 16.4 hours of OT for Y. It also agreed to fund 15.3 hours of weekly psychological sessions. Although the Council agreed to commission therapies, it often delayed the payments due for the therapy providers. As a result, from the third week of May several clinical psychology sessions were cancelled.

Complaint

39. Ms X complained to the Council about non-delivery of special educational provision for Y at the end of August 2023. Having received no response, in January 2024 Ms X asked for her complaint to be escalated to stage two.
40. After many chasing emails from Ms X and our involvement, the Council sent Ms X its stage one response to her complaint in the second week of May 2024.

Analysis

Delivery of education and special educational provision

41. For the reasons explained in paragraphs 11 to 13 of this decision I have only investigated the way the Council discharged its duties for Y between January and mid-June 2023.
42. Although in Section I of Y’s EHC Plan issued in January 2022 the Council named School 1, it refused to offer Y a place and lodged a judicial review against the Council. The Council accepted it had alternative provision duty towards Y and continued to fund 19 hours of tutoring a week.
43. At the beginning of February 2023 Ms X told the Council the tutoring Y had been receiving was not suitable. There is no evidence of the Council querying this position, which was also supported by some professionals involved with Y. The Council found an alternative tutoring agency which would be able to provide face-to-face tutoring for Y but there is no evidence it offered it to Ms X. Taking into account Ms X’s efforts to secure tutoring for Y, on the balance of probabilities I consider that if the Council had offered suitable tutoring, Ms X would have accepted it. Therefore from the information I have seen so far it seems the Council failed to offer this tutoring to Ms X.
44. We would normally allow councils a few weeks to arrange alternative provision. The Council found out Y’s tutoring was not suitable for him at the beginning of February 2023, therefore it should have made alternative arrangements by the beginning of March. The Council’s failure to offer suitable tutoring to Y between the beginning of March and mid-June 2023 is fault. This fault caused Y injustice as he missed education at the time, when he should have been preparing either for taking exams or gaining some qualifications. Ms X was increasingly frustrated that the Council failed to support her efforts in securing suitable education for Y. She took part in meetings and regularly contacted the Council seeking updates.
45. Between January and mid-June 2023 the Council commissioned SLT, OT and clinical psychology sessions for Y as well as horse-riding. Although the Council agreed to fund these therapies, it delayed payments to the therapy providers which is fault.
46. The Council’s failing to pay for the therapy services in a timely manner had negative consequences for Y and Ms X. The therapists would warn Y and Ms X that they might not be able to continue with their services for Y. This caused him and Ms X significant anxiety. From the end of May 2023 the clinical psychologist cancelled several therapy sessions for Y due to the lack of payments. This affected Y’s ability to engage with other therapists and caused Ms X distress.

Personal budget

47. The Council responded to Ms X’s request for a personal budget in January 2023. It agreed to some provision requested. The Council refused to fund a laptop, software and training specified by Ms X and provided its reasons for the refusal. The Council said what Ms X asked for was much more expensive than the Council’s proposal and would be inefficient use of public funds.
48. As explained in paragraph four of this decision we do not look at the merits of councils’ decisions but the process they followed. The Council responded to Ms X’s request for direct payments for Y’s, explaining its reasons for refusing some of the provision requested. After Ms X had queried the Council’s position, it reviewed it further and provided a detailed response. This is what we would expect.

Complaint handling

49. The Council significantly delayed responding to Ms X’s complaint. It should have responded by the end of September 2023 but instead, after multiple contacts from Ms X and us, the Council provided its stage one response in the second week of May 2024.
50. The delay of over seven months is fault. It caused injustice to Ms X as she spent much time and trouble contacting the Council and trying to get a resolution to her complaint.

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Agreed action

51. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Y and Ms X for the injustice caused to them by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• pay Y £1,400 to recognise the loss of his education between the beginning of March and mid-June 2023;
• pay to Ms X and to Y £500 each, so £1,000 in total, to recognise the distress caused to them by the Council’s failings;
• pay Ms X £200 to recognise extra time and trouble taken to complain because of the Council’s failings within its complaint-handling.

The Council will provide the evidence that this has happened.

52. We also recommend the Council within three months of the final decision remind the staff dealing with corporate complaints of the importance to adhere to the timescales when responding to the complaints. The Council will provide the evidence that this has happened.

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Final decision

53. I uphold part of Ms X’s complaint. For the reasons explained in the Analysis section I found fault in the Council’s failure to secure tutoring for Y from the end of February until mid-June 2023, in the delivery of special educational provision to Y and in the way the Council dealt with Ms X’s complaint. I did not find fault in the Council’s personal budget process. The Council’s fault caused injustice to Y and Ms X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman