Summary: The Council was at fault for failing to deliver Ms X’s son’s special educational needs support, and for failing to review his direct payments when Ms X asked it to. It has already arranged the support and, without our involvement, offered some suitable remedies for the injustice Ms X and her son suffered. It has now also agreed to make an additional symbolic payment to Ms X to recognise the injustice which may have been caused from its failure to review her son’s direct payments.

The complaint

1. The complainant, whom I refer to as Ms X, complains that:
• Since November 2023, the Council has failed to deliver the right special educational needs support to her son (whom I refer to as Y).
• Although the Council agreed to make a direct payment to Ms X so she could buy a laptop for Y, the payment was not enough for a laptop which was suitable for his needs.
• Y also continues only to receive four hours a week home tuition, rather than the 15 hours he should have.
• The Council has also accepted that it has caused injustice to Ms X herself, but it has not done enough to resolve this.
2. Ms X says the lack of support has had a significant impact on Y, and his development has stalled. She also says she has suffered distress because she has had very little support to look after Y. She says she has barely been able to leave her house for two years.

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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. If we are satisfied with a council’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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What I have and have not investigated

6. Ms X initially complained to us about the Council’s failure to provide support to Y since 2022. But the Council has already resolved any injustice Y experienced before November 2023, so I have excluded this period from my investigation.
7. However, I will refer to some events from before November 2023 if it makes sense to do so.

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How I considered this complaint

8. I considered information from Ms X and the Council. Both had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The Council’s responsibilities

9. 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.
10. The EHC plan is set out in sections which include section F (the special educational provision needed by the child or the young person).
11. Councils have a duty to make sure children receive the special educational provision set out in section F of their EHC plans. (Children and Families Act 2014, section 42)
12. Payments can be made directly to a child’s parent to allow them to arrange special educational provision themselves. Such payments must be sufficient to secure the provision in the child’s EHC plan. If they are not sufficient, they must be reviewed and adjusted. (SEND code of practice)
13. A child’s parent can request a direct payment review. If they do so, the council must decide whether to conduct one. If it does, part of that review must involve a consideration of whether “the amount of direct payments continues to be sufficient to secure the agreed provision”. (The Special Educational Needs (Personal Budgets) Regulations 2014, Regulation 11)

The Ombudsman’s guidance on remedies

14. We do not punish councils in the way a court might. This means we do not award ‘damages’ or ‘compensation’.
15. Instead, we can ask a council to make a payment to ‘symbolise and acknowledge’ the distress someone suffered because of what it did wrong.
16. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss.
17. Financial remedies for other missed provision, such as occupational or speech and language therapies, are likely to be lower than those for lost educational provision.

What happened

18. The Council issued an EHC plan for Y in September 2023. The provision in the plan included, among other things:
• A package of home tuition, starting at two hours per week and increasing to 15 hours.
• 16 direct sessions of cognitive behavioural therapy (CBT) per year.
• Weekly direct speech and language therapy sessions.
• Weekly direct occupational therapy sessions.
• A laptop.
19. The personal budget schedule which accompanied the plan allocated £350 for the laptop.
20. In October, Ms X complained to the Council that £350 was not enough for a laptop. She did not provide much detail to explain her view.
21. The Council rejected Ms X’s request for an increased direct payment, saying £350 was enough to meet the terms of Y’s EHC plan.
22. In December, Ms X requested a formal review of the direct payment for Y’s laptop. She said he needed a laptop with better specifications to access certain provision, because “His current personal laptop keeps crashing and has problems connecting to certain programs”. She said this meant it was “impossible to secure the provision”.
23. In January 2024, Ms X emailed the Council and said Y was yet to receive his occupational or speech and language therapies (although she says she had already done this well before then). She also complained about Y’s missing support, dating back to 2022.
24. The Council accepted that it had not met its statutory responsibilities. Among other things, it offered Ms X a payment of £500 to recognise the time and trouble she had gone to in trying to secure the right education for Y.
25. The Council also responded to Ms X’s request for a direct payment review. It did not comment on any of the new information she had provided. It simply referred to its response the previous October (which it had sent before she provided the new information).
26. In March, the Council held a meeting to discuss Y’s education. It noted that:
• Y was receiving four hours of tuition a week, and this was going well. An extra session could be suggested to Y but, if he saw it as a ‘demand’, he may refuse.
• There was still no occupational or speech and language therapy in place. The Council contacted providers in August 2023 but there was a nationwide shortage.
27. In April and June, the Council sent further requests to several therapy providers.
28. In June, Y’s clinical psychologist wrote to the Council. She said Y had two CBT sessions remaining but had asked to stop them.
29. Ms X also emailed the Council to remind it that Y was still not getting his other therapy provision. She also confirmed that Y still had four hours of tuition each week, and “we are slowly planting the seed for a 3rd [two-hour] session”.
30. In July and August, the Council exchanged several letters with Ms X’s solicitors. The outcome of this correspondence was:
• The Council had faced significant challenges finding therapists to support Y.
• However, occupational and speech and language therapists had been found who could start in September 2024.
• In recognition of the injustice caused by the therapy Y had missed since 2022, the Council offered a financial remedy of £50 per missed session. This amounted to £5,300.
• The Council would honour its previous offer to Ms X of £500 to recognise her own injustice – primarily the time and trouble she spent pursuing Y’s education – over the same period.
31. Ms X says Y began receiving occupational therapy in mid-September and speech and language therapy in early October.
32. In November, Ms X raised Y’s direct payment again with his new caseworker. The caseworker made enquiries and obtained the laptop specification Y needed directly from the relevant course provider. The Council agreed an increase to the direct payment straight away.

My findings

33. The Council has already accepted fault for large parts of the period Y was without the right special educational needs support. This includes the period I am investigating (since November 2023).
34. The Council has now arranged occupational and speech and language therapies for Y and has offered a financial remedy for the injustice caused by its failure to deliver these therapies earlier. This remedy is not obviously inadequate, even taking into account any further short delays after the start of the school year in September 2024.
35. The Council’s remedy could, perhaps, have been separated differently (with slightly more being apportioned to Ms X for her own injustice). But this, ultimately, was the Council’s decision. As a total remedy it is not obviously out of step with our guidance (which, after all, makes clear that any remedies we recommend are symbolic).
36. The Council was also at fault for failing to properly consider Ms X’s request for a direct payment review. Although she provided new information which suggested the payment was insufficient, the Council did not justify why, despite this new information, the direct payment remained suitable for Y’s needs.
37. When the Council did look into Ms X’s request – several months later – it agreed to increase the direct payment. It is not clear why this did not happen sooner.
38. I have made a recommendation below to address Y’s injustice from the delay.
39. In relation to the other parts of Ms X’s complaint for which the Council has not accepted fault:
• Y’s CBT was stopped by the provider after Y started to refuse it. This appears to have been out of the Council’s control. It cannot make Y attend therapy sessions. The CBT was available to him in line with his EHC plan.
• The tuition Y receives can be increased, but this is down to whether he can manage it (or will accept it). This suggests that the number of hours he receives (which is much less than full-time) is down to his needs, not because of a failing by the Council. More hours are available to him when he can access them.
40. Neither of these matters amount to fault by the Council.
41. I note that the Council’s website sets out its plans to improve its service. Time will tell whether they are effective.

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Action

42. Within a month, the Council has agreed to make a symbolic payment of £350 to Ms X which recognises the distress Y may have suffered because of the delay to its review of his direct payments.
43. The Council will provide evidence it has made this payment.

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Final decision

44. The Council was at fault, and this caused injustice to Ms X and Y, which the Council will now take action to address.

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Investigator's decision on behalf of the Ombudsman