The Ombudsman's final decision
Summary: The complainant (Mrs X) said the Council failed when reviewing her son’s (Y) Education Health and Care Plan and within its Personal Budget process. Mrs X also complained about the Council’s failure to ensure delivery of Y’s special educational provision. We cannot investigate some of the issues which have already been considered by us and the issues linked to Mrs X’s appeal. The Council has already accepted its fault within its Personal Budget process and when communicating with Mrs X but it has failed to offer suitable remedies. The Council agreed to make a symbolic payment for Mrs X to recognise her distress and arrange a meeting to discuss any outstanding issues.
The complaint
Mrs X complains about the Council’s failings to comply with its duties for Y, who has an Education Health and Care (EHC) Plan. She says the Council failed by: Proposing to remove funds agreed for Y’s education; Not funding provision included in Section F; Lack of effective communication; Removing Y’s well-being budget with no communication; Not securing professional advice as part of the Annual Review of Y’s EHC Plan; Not providing access to school.
Mrs X says the Council’s failings had lasting detrimental effect on Y as they permanently disengaged him from school education. They caused significant distress to her, Mrs X says, as for the whole autumn term 2023 she was not clear whether the Council would fund any of the provision Y had been receiving.
The Ombudsman’s role and powers
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) The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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) 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) 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.
What I have and have not investigated I have not investigated Mrs X’s complaint about the Council’s removal of Y’s well-being budget and the Council’s failure to secure a Teaching Assistant for Y. These matters have been dealt with in Mrs X’s complaint 23 020 747, for which we issued a final decision on 22 May 2024.
I have not investigated whether the Council secured proper professional advice for the Annual Review of Y’s EHC Plan in May 2023. This is too closely linked to Mrs X’s appeal to the SEND Tribunal lodged in October 2023. The appeal challenged Sections B and F which were based on the professional advice. If the advice was inadequate, the SEND Tribunal can address it.
As explained in paragraph six of this decision I cannot investigate anything that has been appealed to the SEND Tribunal or is closely linked to the appeal. Having reviewed Mrs X’s grounds of appeal I do not consider I can investigate delivery of special educational provision. Mrs X stated in her appeal that Section B of Y’s EHC Plan did not reflect Y’s needs and she was seeking further professional advice to inform her position. We do not have any details about the extent of this advice. Any advice on Section B of Y’s EHC Plan might also affect Section F. We cannot speculate on what may be raised within the Tribunal process therefore I cannot investigate whether the Council failed to deliver all special educational provision included in Section F of Y’s EHC Plan.
How I considered this complaint
I spoke with Mrs X and considered the information she provided.
I considered the information the Council provided.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legal and administrative framework Communication Local authorities should support and encourage the involvement of children, young people and parents or carers by: Providing them with access to the relevant information in accessible formats Giving them time to prepare for discussions and meetings, and Dedicating time in discussions and meetings to hear their views.
(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24) Councils must have regard to the need to support a child with special educational needs or disabilities and their parent to facilitate the development of the child and to help them achieve the best possible educational and other outcomes. (Children and Families Act 2014 section 19 (d)) What happened EHC Plan Following the SEND Tribunal decision the Council issued Y’s final EHC Plan in November 2022.
At the beginning of May 2023 the Annual Review meeting for Y’s EHC Plan took place. At this meeting Y’s parents presented costs of the sensory equipment named in Section F of Y’s EHC Plan.
In mid-June the Council told Mrs X its Panel agreed the funding for: Y’s Education Otherwise that at School (EOTAS) package; some one-off Information Technology (IT) equipment; sensory resources.
At the end of June the Council sent Mrs X Y’s draft EHC Plan. Three weeks later the Council confirmed a payment schedule for the funding agreed for Y and in August paid Mrs X for Y’s education in the autumn term of 2023.
At the end of July the Council told Mrs X it had reconsidered the funding for Y’s support. The Council did not approve Y’s EOTAS package and proposed to refer Y to its Home Education Service. It deferred funding for Y’s IT equipment.
The Council told Mrs X at the beginning of September 2023 it had removed funding for Y’s EOTAS package.
A few days later the Council issued a final EHC Plan for Y. Mrs X appealed Sections B and F in the second week of October 2023. She said she was seeking further assessments to ensure all Y’s needs were included in his plan. Mrs X also raised concerns about the Council’s failure to include in Section F all the provision agreed between the parties. She also objected to the vague language used in Section F.
The Council told Mrs X it was reinstating funding for Y’s EOTAS package at the beginning of January 2024.
During my telephone conversation Mrs X told me the Council stopped communicating with her from October 2023, when she appealed to the SEND Tribunal.
Complaint handling In mid-September 2023 Mrs X complained about the Council’s failings. Having received no response, two months later she asked the Council to take her complaint to stage two of the complaint process.
The Council commissioned an independent investigation of Mrs X’s complaint. An investigation report was prepared in mid-December 2023, with an addendum added three weeks later. The Investigating Officer: Upheld Mrs X’s complaint about the removal of funding for Y’s EOTAS package and proposed some service improvements; Upheld Mrs X’s complaint about the Council’s failure to provide special educational provision included in Section F of Y’s EHC Plan from January 2023 to July 2023 and recommended refund of Mrs X’s costs and service improvements; Partially upheld Mrs X’s complaint about the Council’s failure to provide special educational provision included in Section F of Y’s EHC Plan from September 2023 and recommended funding for some sensory equipment. Some of the provision, including IT equipment, were linked to Mrs X’s appeal and could not be addressed through the complaint process.
Upheld Mrs X’s complaint about the Council’s delays in carrying out an Annual Review of Y’s EHC Plan and recommended an apology.
Did not investigate whether the Council failed to secure proper advice for the Annual Review of Y’s EHC Plan in May 2023 as this was linked to Mrs X’s appeal to the SEND Tribunal.
Upheld Mrs X’s complaint about the Council’s poor communication and recommended an apology.
Upheld Mrs X’s complaint about the way the Council handled her complaint and recommended an apology, a financial remedy and some service improvements.
The Council sent Mrs X its response to her complaint at the end of January. It apologised and agreed to follow the Investigator’s recommendations. It also offered a payment of £150 to recognise Mrs X’s time and trouble in pursuing her complaint.
Analysis Although the Council upheld most of the issues raised by Mrs X in her complaint and offered suitable remedies for some of them, I do not think it has addressed the significant distress experienced by Mrs X as result of the Council’s removal of funding for Y’s EOTAS package and the Council’s failings within its communication with her.
Y’s need for an interim EOTAS package had not been contested by the Council, as it included this package in Y’s final EHC Plan issued in September 2023. In June 2023 the Council agreed how much it would pay towards this package of education which meant to be continuation of what Y had been receiving in the school year 2022/2023.
At the end of July 2023 the Council decided to withdraw the funding agreed in June without providing its reasons for the change of its position. In September 2023 it offered Y alternative tutoring arrangements without explaining why the Council considered they would be suitable for Y. Although in August 2023 the Council made a first termly payment, as agreed in July, Mrs X was confused about the change in the Council’s position and uncertain whether the funding would continue beyond December 2023. This caused Y’s parents significant anxiety and distress.
The parents’ distress was increased by the Council’s failings to communicate with them. For the whole autumn term 2023 they were left with uncertainty whether the Council would continue funding the provision Y was receiving. They had to decide whether to continue this provision at the risk of negative financial consequences if the Council refused to refund their cost or whether to stop provision, risking damage to Y’s education and development. The Council only reinstated funding for the EOTAS package after the spring term 2024 had started.
Despite Mrs X’s appeal to the SEND Tribunal the Council continues to have duties around Y’s education and to ensure delivery of special educational provision included in Y’s EHC Plan. For this purpose it should communicate with Mrs X and respond to her queries.
Agreed action
To remedy the injustice caused by the faults identified, in addition to all the remedies offered to Mrs X in the Council’s complaint response, we recommend the Council complete within four weeks of the final decision the following: pay Mrs X £750 to recognise the distress caused to her by the Council’s failing within its Personal Budget process and to communicate with her effectively; arrange a meeting for Mrs X with Y’s Special Educational Needs Officer and their manager to discuss: any outstanding issues with Y’s education and delivery of special educational provision, which are not affected by the ongoing appeal to the SEND Tribunal; the effective process to ensure Mrs X receives regular communication from the Council and responses to her correspondence.
The Council will provide the evidence that this has happened.
Final decision
I uphold part of this complaint. The Council had already accepted its fault for the issues Mrs X complained about and offered remedies. I do not consider the remedies offered by the Council are sufficient in view of the injustice caused to Mrs X. Some of the issues raised have already been considered by us and some we cannot investigate as they are linked to Mrs X’s appeal. The Council has accepted my recommendations, so this investigation is at an end.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman