Summary: There was service failure by the Council. Two days per week of tuition specified in an Education, Health and Care Plan was not made to a young adult for one term. The Council has made a symbolic payment to remedy the injustice caused.

The complaint

1. The complainant, Mrs X, complains for her adult son, Mr Y. Mrs X says the Council delayed considering a request for a Personal budget which meant that it was too late to organise the provision in the Education, Health and Care (EHC) Plan.
2. Mrs X says now they have moved from the area, the provision cannot be made up and she would like the Council to pay for the IT course that should have been provided.

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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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What I have and have not investigated

6. I have investigated events up to April 2024 when Mrs X moved out of the Council’s area.

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How I considered this complaint

7. I read the papers put in by Mrs X and discussed the complaint with her.
8. I considered the Council’s comments about the complaint and any supporting documents it provided.
9. 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

10. Mr Y has special educational needs and an EHC Plan. This document sets out his needs and what arrangements should be made to meet them. There was an annual review in March 2023. At the annual review Mrs X asked for a bespoke package of education including cookery, work experience, an Information Technology (IT) course and life skills. She did not specifically request a personal budget. The EHC Plan of May 2023 named a placement at a specialist college.
11. In July 2023 Mrs X wrote to the Council. She said the EHC plan was incorrect as Mr Y had left the college. She asked for a personal budget for 1-1 support for the following:
• 2.5 days per week of an IT programme
• 2 half days of work experience
• 1 day of cookery
• Life skills programme.
12. The Council issued a new EHC Plan on 19 September 2023. This included an Education Otherwise Than At School (EOTAS) package (backdated to 1 September 2023) with a personal budget referred to by the Council as a managed budget consisting of:
• 1 day cookery (5 hours)
• 2 half days work experience (6 hours in total)
• 2 days adult animation IT course
• 1 day life skills.
13. The next EHC Plan dated 10 January 2024, backdated to 1 September 2023, included an EOTAS package (backdated to 1 September 2023) with a personal budget referred to by the Council as a managed budget of 30 hours 1:1 support consisting of:
• 1 day cookery (5 hours) 1-1 at £40 per hour.
• 2 half days work experience (6 hours in total) 1-1 at £40 per hour.
• 2 days adult animation IT course with tutor at £20 per hour and 1-1 at £40 per hour.
• 1 day life skills 1-1 at £40 per hour .

My Analysis

14. Mrs X complains about the delay in organising the EOTAS personal budget after her request in July 2023. I can see that it took some time for the Council to agree the personal budget. However, this was backdated to 1 September 2023 in the EHC Plan and some of the provision was provided from this date.
15. Mrs X explained to me on the telephone that she only wished to complain that IT course was not provided, as by the time the Council had agreed the funding it was too late to organise. Mrs X moved out of the Council’s area in April 2024.
16. The Council emailed Mrs X on 22 December 2023 to confirm the Council would fund the 1-1 from September 2023 and the IT tutor from January 2024.
17. Mrs X said that by the time the funding was agreed, it was too late to organise the IT course. In the response to Mrs X’s stage 3 complaint the Council said there had been a delay in making the first payment for the IT tutor and PA until February 2024. The Council said that it had agreed to make a payment for 4 weeks in advance and then make further payments once it got invoices.
18. The EHC Plan from 19 September specified 2 days a week IT course, which was not provided from September 2023 to April 2024. There is evidence the Council agreed the funding from January 2024 and intended to make an advance payment from February 2024. So, there was service failure from September to January 2024 as Y did not receive the IT course specified in the EHC plan. I do not propose to provide a remedy from February 2024 onwards as the Council had made the funds available to Mrs X to organise the provision. I also note that Mrs X could have organised a different IT course/tutor for the Autumn term to mitigate the loss of education although I understand she would have had reasons for the specific tuition that would meet Y’s needs.
19. The Council has said that ‘we do not believe there has been fault as the parent wished to source the course, and delayed the start to establish a preferred tutor once personal assistant support for Y had been established. Details and costs were put forward in December 2023 and, in line with the above, the internal funding authorisation form was clear the autumn 2023 funding was not due and this was also clear with the parent, though we recognise this is not clear in the EHC Plan’.
20. 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)  
21. I understand the Council’s view, but the law is clear that it is responsible for arranging the provision in section F of the EHC Plan. The 2 days a week IT course was not provided to Mr Y from September 2023 until February 2024. So, I consider that the Council should remedy the lack of provision for 2 days a week for one term by making a financial payment.
22. Our guidance on remedies says ‘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’. As Y missed 2 days a week provision for one term, a financial remedy of £360 is appropriate. This is two-fifths of the £900 remedy. As Mr X was not in a key education year (e.g. GCSE’s or secondary school transfer), he had provision for 3 days a week and Mrs Y did not lose her right of appeal I consider a remedy at the lower point on the scale is appropriate.
23. As Mrs X has now moved from the area and the situation was specific to her families needs I do not consider that any service improvement remedies are needed.

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Agreed action

24. Within one month of the decision on this complaint the Council should:
• Pay Mrs X £360.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed my investigation of this complaint. There has been service failure by the Council which caused injustice to Mrs X and Mr Y. A symbolic payment by the Council remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman