Summary: Mrs Z, an advocate, complained on behalf of Miss X about the Council’s delay in reimbursing the costs she incurred educating her son, Y. We find the Council at fault for failing to keep proper records and for delaying the payment. This caused Miss X uncertainty, distress, and led to her falling into debt. The Council has offered to apologise and make a suitable payment to Miss X.

The complaint

1. Mrs Z, an advocate, complained on behalf of Miss X about the Council’s delay reimbursing the costs incurred while her son, Y was out of education.
2. She also complained about poor communication from the Council.
3. She says because of the delays and errors Miss X is in significant debt, which is causing her distress, and she can no longer afford to live in her house.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I considered the complaint and information provided. I also discussed the complaint with Mrs Z.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. I referred to the Ombudsman Guidance on Remedies, (a copy of which can be found on our website). 
10. Mrs Z 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

Relevant law and guidance

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 tribunal or the council can do this.
12. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says if the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply). 

Alternative Provision

13. 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.
14. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

Background

15. In December 2016, Y received an assessment for an Education, Health and Care (EHC) Plan. The final plan was issued in June 2017.
16. At this time, Y was attending a specialist school for children with severe learning difficulties.
17. In May 2019, the school raised concerns that they felt unable to meet all of Y’s needs.
18. In July 2019, Y stopped attending school.
19. Since January 2022, an agreement has been in place between the Council and Miss X, for the Council to reimburse the costs of educating Y.
20. In February 2023, the Council agreed to complete a new EHC needs assessment for Y.
21. In June 2023, Miss X sent the Council an invoice, itemising the costs of educating Y between January 2022 and March 2023. The Council agreed to, and paid, the full amount later that month.
22. In September 2023, the Council told Y’s previous school to remove him from their school roll. In the same month, an Education Otherwise Than At School (EOTAS) package was put into place to support Y.
23. In May 2024, the Council issued Y’s revised final EHC Plan.

Miss X’s complaint

24. In September 2023, Miss X sent the Council an invoice itemising the costs of educating Y between March 2023 and September 2023.
25. In November 2023, the Council approved a new agreement outlining which costs it would cover.
26. In December 2023, Mrs Z, an advocate, began supporting Miss X by communicating with the Council and chasing the outstanding payment. Mrs Z emailed the Council five times, sent a letter, and made multiple unanswered telephone calls. On one occasion, a council officer told her someone would call her back, but no call was received.
27. In February 2024, Mrs Z complained to the Council urgently seeking payment of the September 2023 invoice. She also requested an explanation of the November 2023 agreement to understand which costs would be reimbursed. Mrs Z stated the payment delay had pushed Miss X into debt, making it difficult for her to afford her housing costs. She also complained about the lack of communication from the SEND team.
28. Later that month, the Council responded, stating it would only reimburse costs in line with the November 2023 agreement, but provided limited information on the agreement.
29. Mrs Z emailed the Council the day she received its response, seeking clarification on the agreement but received no reply.
30. In March 2024, Miss X sent the Council a letter detailing the costs of educating Y from March 2023 to March 2024, revised to align with the November 2023 agreement. She explained neither she or Mrs Z had received responses to their attempts to contact the Council and that she was struggling financially due to the payment delay.
31. In the same month, Mrs Z brought the complaint to the Ombudsman.
32. In June 2024, Miss X followed up with the Council for payment of the invoice. The Council offered a significantly smaller payment. Miss X asked how the amount was calculated, as it didn’t match her costs. The Council said it would review the agreed payment and requested a full breakdown of costs.

My findings

EHC Plan and alternative provision

33. Although not part of Miss X’s complaint to the Ombudsman. The Council has accepted it did not complete Y’s EHC needs assessment and issue the final EHC Plan within the statutory timescales.
34. Y’s EHC Plan should have been issued by July 2023, but was delayed until May 2024. This ten-month delay is fault. The delay caused undue distress to Y and Miss X.
35. The Council has also acknowledged that the alternative provision provided to Y once EOTAS was agreed, was not fully suitable and did not meet Y’s needs. This is fault.

Miss X’s complaint

36. In September 2023, Miss X sent the Council an invoice for educational costs for Y from March 2023 to September 2023. Previously, Miss X’s incurred costs were promptly reimbursed. The Council says it received the invoice in November 2023.
37. In November 2023, the Council approved a new agreement outlining which costs it would cover. The documentation of the agreement is unclear and does not specify costs for all the categories or activity frequency. This is fault. In my enquiries to the Council, I asked it to clarify the agreement and provide records of discussions showing when and what was explained to Miss X. The Council did not respond to this or provide any records.
38. Miss X says she chased the Council for payment in December 2023 and January 2024, but the Council says it did not receive these emails.
39. In February 2024, Miss X’s advocate complained to the Council requesting payment of the invoice. The Council’s response did not specify the payment amount or timeline, nor did it acknowledge the payment delay or offer a remedy. This is fault. The Council missed an opportunity to resolve the issue at this stage.
40. In June 2024, Miss X again chased the Council for payment. The Council then provided a high-level breakdown of the costs it would cover, which differed from the November 2023 agreement. This is fault. This caused uncertainty and further distress for Miss X.
41. In July 2024, during my investigation, the Council reassessed the invoices and offered an appropriate payment in line with the November 2023 agreement. A payment covering costs incurred by Miss X between March 2023 and November 2023 will be made in August 2024. It took the Council nine months from receiving the original invoice to make the payment. This is fault.
42. In response to my enquiries the Council proposed the following remedy:
• pay Miss X £15,920.53 to reimburse the costs of educating Y between March 2023 and November 2023;
• pay Miss X £500 in recognition of the distress caused to the family;
• pay Miss X £300 in recognition of the time and trouble taken following up requests due to poor communication from the Council;
• pay Miss X £500 in recognition of the delay issuing Y’s final EHC Plan; and
• pay Miss X £700 to acknowledge the unsuitability of alternative provision provided when EOTAS was agreed.
43. I welcome the Council’s offer to remedy the injustice caused to Miss X and consider it is a fair and proportionate way of resolving the complaint.
44. I have not recommended any action for the Council to take to improve its services. This is because the Council has accepted our recommendations in recent investigations and is taking action to address the failings within its SEND service.

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Final decision

45. I have completed my investigation. There was fault by the Council. The remedies offered by the Council are suitable for the injustice caused.

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Investigator's decision on behalf of the Ombudsman