Summary: Ms X complained the Council did not properly handle her son Y’s Education Health and Care Plan. She said the Council failed to provide a Personal Budget when it issued the plan, did not secure educational provision for Y, and had poor communication and complaint handling. We find the Council at fault in these areas which caused distress and missed educational provision. The Council has agreed to apologise and make a symbolic payment.

The complaint

1. Ms X complains about the Council’s handling of her son Y’s Education Health and Care Plan. In particular, she complains the Council:

• Failed to provide the Personal Budget in Section J when it issued the plan.
• Failed to secure the special educational provision detailed in Section F of the plan.
• Subsequently allocated a Personal Budget that was still not sufficient to secure the educational provision.
• Had poor communication and complaint handling.

2. Ms X says this caused Y to miss special educational provision and caused them both distress.

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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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How I considered this complaint

6. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Education, Health and Care Plans

8. 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. 
9. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section J: Details of any Personal Budget required to fund the provision in the EHC Plan.

Personal Budgets

10. 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.
11. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
12. The Special Educational Needs and Disability Code of Practice: 0 to 25 years (the Code of Practice) explains how Personal Budgets should be set and agreed. It states the child’s parent or the young person should be given an indication of the level of funding that is likely to be required to make the provision specified, or proposed to be specified in the EHC Plan. 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. (Paragraph 9.102)
13. The council’s duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.
14. Bracknell Forest Council has a Personal Budget Policy. It states the principle behind a Personal Budget is to co-produce and to ensure that families, children, and young people have the flexibility to be creative in meeting a child's needs in a personalised way. Families report knowing how much money is available to meet their child’s needs has helped them to choose the right provision to best meet the outcomes identified in the child or young person’s care plan or EHC Plan.

The Tribunal

15. The courts have established that if someone has appealed to the First-tier Tribunal (Special Educational Needs and Disability) (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)
16. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

The Council’s complaint procedure

17. The Council has a three-stage procedure for dealing with complaints about education.
18. Stage one: The Council will try to deal with complaints and respond within 10 working days. For more complex complaints it may extend this. In these cases it will keep the complainant updated and aim to response within 20 working days.
19. Stage two: If a person is not satisfied they can ask for a stage two investigation. This will be dealt with by another officer. Stage two has the same response targets as stage one.
20. Stage three: If a person is not satisfied the can ask for a stage three investigation. This will be considered by a senior officer. It aims to provide a response within 20 working days, but may extend this in which case it will keep the person updated.

What happened

21. The Council reviewed Y’s EHC Plan in 2023. Ms X appealed to the Tribunal about elements of the plan. She had requested the Council provide a Personal Budget before the Tribunal hearing.
22. On 12 March 2024 the Tribunal sent its decision. It said the Council must finalise an EHC Plan for Y and specified the wording of the special educational provision for the Council to record in Section F.
23. On 2 April 2024 the Council issued Y’s EHC Plan. It included the Section F provision specified by the Tribunal. The EHC Plan recorded Ms X had not requested a Personal Budget and Section J was blank.
24. The Council provided some education to Y from this time. It provided six hours of tuition and one session at a therapeutic outdoor learning provider per week. It did not include the full provision detailed in Section F.
25. On 16 April Ms X submitted a stage one complaint. She said Y’s EHC Plan did not include a Personal Budget but she had requested one. She complained this left Y with no educational provision, reminded the Council it had a duty to deliver the provision in Section F, and asked it to resolve the matter urgently.
26. On 10 May the Council responded to Ms X’s stage one complaint. It apologised for wrongly recording Ms X’s Personal Budget request. It undertook to process the Personal Budget. It did not directly address the complaint of missed educational provision.
27. The Council asked Ms X to submit a Personal Budget proposal on a specific form, which she did on 13 May.
28. On 4 June Ms X escalated her complaint to stage two. She complained the stage one response had not addressed or resolved the issues. She reiterated the Council was failing in its duty to deliver the educational provision in Y’s EHC Plan. She also complained about delays to the Personal Budget process. She asked the Council to consider a remedy to compensate for the lack of educational provision.
29. On 4 July the Council responded to Ms X’s stage two complaint. It apologised for the delays in confirming the Personal Budget and undertook to write to her with the agreed aspects of it by 16 July. It did not offer a remedy for missed educational provision.
30. On 16 July Ms X escalated her complaint to stage three. She reiterated the Council was failing to deliver the education detailed in Section F of Y’s EHC Plan. She explained the Council had not written to her with the agreed aspects of the Personal Budget as promised. She requested the Council apologise that its stage 2 response did not address and resolve the actual issue, repeated her request the Council consider a remedy to compensate for the lack of provision, and asked for full provision to be provided from September 2024 onwards.
31. On 9 August the Council sent Ms X a proposed Personal Budget in a counter-proposal letter.
32. On 14 August the Council responded to Ms X’s stage three complaint. It agreed it had not secured all the provision in Section F, acknowledged its absolute duty to do so, recognised this was not directly addressed in its previous responses and apologised. It said it had secured some educational provision and offered Ms X £900 in recognition of the impact of one term without full educational provision for Y
33. The Council also detailed work it had done since May on the Personal Budget. It said this was to ensure the Personal Budget was both sufficient to secure the section F provision and an efficient use of public money. It referred to its Personal Budget counter-proposal letter date 9 August.
34. Ms X complained to the Ombudsman on 31 October.

Analysis

The lack of Personal Budget when the EHC Plan was issued

35. The Council should have included a Personal Budget in Section J of Y’s EHC Plan when it was issued on 2 April 2024.
36. I acknowledge there was correspondence from the Council to Ms X in May when it asked her to submit a Personal Budget request on a specific form. However, the Code of Practice says the child’s parent should be given an indication of the level of funding that is likely to be required to make the provision specified. In this case the Council put the onus on Ms X to give it an indication of the level of funding. I find this approach was contrary to the Code of Practice.
37. This had the effect of extending the delay in securing the special educational provision for Y.
38. The Council’s failure to record a Personal Budget in Y’s EHC Plan when it was issued was fault. Ms X did not know how much money was available to meet Y’s needs until the counter-proposal letter on 9 August, four months after the EHC Plan was issued. This was injustice in the form of distress and uncertainty.
39. I acknowledge the Council accepted fault and apologised. I have decided the injustice warrants a symbolic payment of £200 to acknowledge the significant distress and uncertainty caused.

Loss of special educational provision

40. From 2 April 2024 when the Council issued Y’s EHC Plan it did not secure the full special educational provision detailed in Section F. The provision it failed to secure included:

• Direct and indirect speech and language therapy (SALT) of 1 hour per week, with a minimum of 30 hours direct.
• Occupational therapist weekly sessions of 45 minutes, with 15 minutes for planning and recording.
• Assistive technology, for example a laptop with specific functions.
• Weekly access to sessions such as swimming, climbing or art.

41. When the Council produced the Personal Budget counter-proposal in August it also increased Y’s weekly hours of tutoring from 6 to 12 hours, and introduced new provision of a learning mentor of 10 hours. This was a combined increase of 16 hours. Y’s EHC Plan does not specify the number of hours of tutoring and mentoring. Therefore I cannot say that the additional 16 hours is missed Section F provision. However, I have decided it is more likely than not that the Council would have increased Y’s hours by this amount had it included a Personal Budget in the EHC Plan. For this reason I have decided to treat the additional 16 hours as educational provision that Y missed.
42. The Council’s failure to provide the educational provision summarised above was fault that caused a loss of educational provision for Y for one full school term between April and September.
43. The Council has agreed it did not provide the full provision for Y. It apologised and has offered £900 to acknowledge the impact of that loss.
44. I have considered whether the Council’s offer is sufficient by referring to our Guidance on Remedies. It states 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. I have considered factors including the severity Y’s special educational needs set out in his plan, the educational provision made during the period, and whether additional provision can now remedy some or all of the loss.
45. I have decided to recommend the Council increases its offer to £1,100 to acknowledge the impact of the injustice in this case.
46. Was the Personal Budget sufficient to secure the provision specified in the EHC Plan?
47. The Council produced a Personal Budget in its counter-proposal letter in August. Miss X complained it still did not cover everything required by Y’s EHC Plan. The elements she said were not covered were access to groups with one-to-one support, the full SALT provision, sufficient assistive technology, sufficient mileage payment for travel to and from the therapeutic outdoor learning provider and the full hours of tutoring.
48. I have carefully considered whether the proposed Personal Budget was sufficient to secure the provision in Section F of the EHC Plan. I acknowledge Miss X’s opinion. However, I find the proposed Personal Budget is sufficient to secure agreed provision because:

• Most of the references to group settings in Section F allow one-to-one or group-based delivery, not an absolute requirement for group-based settings. There is a requirement for weekly access to sessions such as swimming, climbing or art to encourage his engagement in a group setting. However the Council has allocated a sum of money in the Personal Budget that I find could be used to secure this provision.
• The SALT provision in Section F specifies a minimum of 30 hours of direct provision. The Personal Budget covers this minimum plus an additional six hours for other tasks.
• The assistive technology in Section F gives an example of a laptop with a specific software function. The sum allocated in the Personal Budget is sufficient to purchase a laptop from a high street retailer that meets the requirement.
• The Personal Budget provides an amount for mileage for one journey to and from the therapeutic outdoor learning provider per week. The amount is in line with the HMRC mileage allowance.
• The EHC Plan does not specify the number of tutor or mentor hours for Y. It states he requires initially teaching on a 1:1 basis with the view to gradually developing group learning. I find the Personal Budget is sufficient to cover this.
• The twice weekly sessions of 15 minutes for direct teaching of social skills is being secured during the sessions at the therapeutic outdoor learning provider because Y receives support from staff to maintain friendships and remain regulated in group settings.

The Council’s communication and complaint handling.

49. Ms X complained the communication with the Council was very difficult due to its failures to respond to contact so she had to use the complaint process to receive replies. She complained the first two complaint responses did not address the primary concern, and the third response did not provide adequate explanations.
50. I do not find fault with the Council’s third response.
51. I find Ms X’s reliance on the complaint procedure to obtain responses about her concerns demonstrates the Council’s general communication with her fell below an acceptable standard.
52. I find the Council’s failure to address Ms X’s concerns that Y was missing provision in its stage one and two complaint responses fell below an acceptable standard of complaint handling.
53. These failings were fault which caused Ms X injustice in the form of uncertainty and frustration.
54. I note the Council has accepted fault and apologised for its complaint handling. Our Guidance on Remedies states there is inevitably time and trouble involved in bringing a complaint. Where there has been a fault in the way a council considered a complaint, our normal approach in such cases is that an apology is sufficient to remedy injustice from the flawed complaint handling. I consider the Council’s apology is sufficient in this case and make no further recommendations on this point.
55. However, the Council has not acknowledged fault or apologised for poor general communication. I recommend the Council apologises for the injustice caused by this fault.

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Action

56. Within four weeks of the date of this final decision the Council will:

• Apologise to Ms X for the injustice caused by poor communication.
• Make a symbolic payment of £200 to acknowledge the significant distress and uncertainty caused by its delay in providing a Personal Budget.
• Make a symbolic payment of £1,100 to acknowledge the missed educational provision for Y for a full school term. This is instead of its original offer for the same injustice.

57. I recommend Ms X use the symbolic payments for missed provision for the educational benefit of Y.
58. The Council should provide us with evidence it has complied with the above actions.

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Decision

59. I uphold Ms X’s complaint. There was fault by the Council regarding its handling of the Personal Budget, educational provision, communication and complaint handling, which caused injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman