Summary: Mr X complained about how the Council provided support for his son, Mr Y’s, special education needs. The Council was at fault for delays in reviewing Mr Y’s EHC plan, delays confirming Mr Y’s ongoing education, failing to provide some of the support in his plan, poor communication and in how it replied to Mr X’s complaint. This caused avoidable uncertainty, distress, time and trouble for which the Council agreed to apologise and pay a financial remedy.

The complaint

1. Mr X complains about how the Council provided support for his son, Mr Y’s, special educational needs. He says the Council failed to:
• review and amend Mr Y’s EHC plan when it should have done so in 2022;
• pay for a laptop and software requested by one of Mr Y’s tutors;
• confirm whether Mr Y’s tutoring would continue after March 2023;
• respond to his emails or phone calls; and
• carry out the actions it agreed in its response to his complaint.
2. As a result, Mr X says there is ongoing uncertainty about the support Mr Y should receive, which caused both him and Mr Y significant worry and distress and he had to pay for some support himself. He wants the Council to apologise, issue an amended EHC plan, reimburse him for the costs he has paid and pay him a financial remedy. He also wants the Council to improve its processes and prevent the same delays happening in future.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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)

Back to top

How I considered this complaint

8. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decisions. I considered their comments before making a final decision.
10. 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.

Back to top

What I found

Education health and care plans

11. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
12. 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.
13. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person. (Section 42 Children and Families Act)
14. Councils must review EHC plans at least every 12 months. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance:
• Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
• Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
• Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
15. There is a right of appeal to the SEND Tribunal against a decision not to amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to amend a plan has been made and sent to the parent or a final EHC plan has been issued.

What happened

16. Mr X’s son, Mr Y, has special educational needs related to a serious mental health condition. Mr Y has an EHC plan from the Council from August 2021 which says will receive education at home, from a tutor arranged by the Council, because he finds it difficult to leave his home. It also said Mr Y would receive support to participate in social activities where he can develop his social interaction skills for 30 minutes each week. The first annual review of Mr Y’s EHC plan was due to take place in June 2022.
17. Mr X said he tried to contact the Council in October 2021 to arrange for a personal budget for Mr Y. He says he chased the Council several times by email and phone but did not receive a response from the Council.
18. In mid-January 2022 Mr X asked the Council again for a personal budget to purchase a laptop for Mr Y (which he had now done) and for Mr Y to attend out-of-home activities. The Council replied to Mr X’s email in mid-February 2022 saying somebody would contact him. However, Mr X says this did not happen.
19. Mr X chased the Council for a response in mid-March 2022 and again in mid-April 2022, when the Council responded. The Council asked Mr X to complete and return a direct payment form and provide evidence of the purchases. Mr X sent the Council the information it asked for in late April 2022. However, he said he did not get a further response from the Council.
20. In late May 2022, Mr Y’s tutors emailed the Council asking about plans for the upcoming review. Mr X and the tuition company chased the Council for a response in early July 2022. Mr X chased the Council again about this in early August 2022.
21. The Council reviewed Mr Y’s EHC plan in mid-August 2022 and issued a report on the review dated 19 August 2022. Only parts of the Council’s standard review form were completed. The report did not contain detailed notes on, among other topics,:
• what changes Mr X or Mr Y wanted for the plan, including extra mentoring and outdoor activities;
• Mr Y’s progress towards, or a review of, the outcomes in his EHC plan;
• preparing Mr Y for adulthood; or
• that Mr X had asked for a personal budget.
22. The report did note that Mr Y was only accessing around 2 hours a week tuition but that his health conditions / tiredness were the main limit on him taking part in more learning. The report also noted Mr Y was not using the laptop he already had.
23. In late September 2022, the tuition company arranged by the Council told it and Mr X it could no longer provide a tutor for Mr Y. The Council consulted with another of its preferred providers in late October 2022. The provider told the Council it had found a suitable tutor in mid-November 2022 and agreed to start tutoring Mr Y from January 2023. The Council arranged this tuition to continue until the end of March 2023.
24. Mr X asked the Council for an update on Mr Y’s annual review in mid-January 2023. He also told the Council he was not happy that his request for reimbursement for the laptop and productivity software he purchased would need to be referred to its funding panel. Mr X told the Council he had been assured over the past year that the Council would pay for these.
25. Mr X chased the Council for its decision about the laptop in early February 2023 and again in mid-February 2023. He also told the Council he had arranged some online mentoring for Y to meet the part of his EHC plan which included support with his social interaction skills. This started in September 2022, following what Mr X said was a four-month waiting list.
26. In early March 2023, the tuition company asked the Council to confirm whether his tuition would be extended beyond the end of March 2023. Mr X and the tuition company chased the Council about this in mid-March 2023.
27. Around a week before the tuition was due to end, the Council confirmed it had extended the agreement until the end of the academic year in mid-July 2023.
28. The Council says it has now considered Mr X’s request for the laptop and software at its funding panel. It says it previously provided a laptop for Mr Y and therefore said it would not fund another. There is no evidence the Council shared this decision with Mr X or told him how he could challenge this.

My findings

2022 annual review

29. The EHC plan the Council issued for Mr Y in 2021 said the annual review should have taken place by late June 2022 and the final decision about the review made by late August 2022.
30. However, despite chasing from the tuition company in May 2022, the Council only held the review meeting in mid-August 2022. This was too late to allow the Council to either make its decision within 12 months of issuing Mr Y’s first EHC plan. This was fault.
31. In its response to my enquiries, the Council accepted it has not yet issued Mr X with its formal decision about whether to amend Mr Y’s EHC plan. The Council’s decision is now nearly 12 months late. This was fault.
32. The Council says Mr X asked for no significant amendments during the annual review. However, the limited notes from the meeting show Mr X asked for both additional mentoring (which Mr X is currently paying for himself) and a personal budget for outside activities. Based on the report from the meeting, I am not satisfied the Council carried out the 2022 review, or recorded the results of this, properly. There is no evidence it properly considered the points mentioned in paragraph 20 above. That was fault.
33. I cannot say what decision the Council would have made, had it carried out the review properly and within the required time. Therefore, I cannot say the Council would have agreed to the extra provision Mr X asked for. However, I am satisfied the Council’s failure to carry out the review properly has led to significant uncertainty, over the last 12 months, about what support Mr Y should have received. The Council’s failure to issue its decision about the review also denied Mr X his rights to appeal the Council’s decision, either to not amend Mr Y’s plan or any changes the Council did propose to make.
34. Seeing as there was fault in how the Council carried out the 2022 review, I would normally have recommended the Council reconsider that review. However, as it has been nearly 12 months since the Council held the last review meeting, it is due to review Mr Y’s EHC plan again. It should arrange that review immediately and, as part of the review, consider whether any new provision it agrees to should have been in place for Mr Y since August 2022.

Laptop and software

35. I am satisfied Mr X first asked the Council about a direct payment for a laptop, software and outdoor activities in late 2021, shortly after the Council issued Mr Y’s first EHC plan. I am also satisfied that Mr X purchased the laptop and software based on a recommendation from Mr Y’s tutor at the time.
36. Mr X has consistently asked the Council about reimbursement for the costs of that laptop since late 2021 / early 2022. The evidence shows that, since then, the Council made several assurances to Mr X that it would pay him for the costs of the laptop and software, including asking him to complete a direct payments form. Its stage one complaint response also assumed that the Council would reimburse Mr X.
37. In its response to my enquiries, the Council says it paid for a laptop for Mr Y before Mr X purchased one in 2021. However, Mr X disputes this and the Council has been unable to provide any evidence it did so. The only other laptop Mr X said Mr Y had was his own from some time ago which he cannot use for his education because of his mental health difficulties.
38. On the balance of probabilities, my view is that the Council has not provided Mr Y with a laptop previously and therefore its reasons for refusing to reimburse Mr X for the one he purchased are not based on accurate evidence. The Council accepts Mr Y needs a laptop for his education so it should repay Mr X for the costs of the laptop and software he purchased for Mr Y. The Council’s refusal to do so until now has caused Mr X avoidable frustration and distress pursuing this with the Council.

Support for social interaction skills

39. The Council has not provided any evidence it secured, or made any efforts to secure, the support with developing social interaction skills included in Mr Y’s 2021 EHC plan. Its failure to do so was fault.
40. Mr X has asked the Council for a personal budget to cover this part of Mr Y’s provision since late 2021 but the Council has not responded to that request. After waiting four months for a place to become available, Mr X paid for Mr Y to take part in an online monitoring programme. This programme is designed to support the kind of social interaction skills which Mr Y’s EHC plan identified.
41. I am satisfied that Mr X arranged that support for Mr Y because he needed support of that kind and the Council was not arranging it. Therefore, the Council should refund the costs Mr X has paid for that support and continue to meet those costs until it has made a decision of its review of Mr Y’s EHC plan.

Tutoring from March 2023

42. At first the Council extended Mr Y’s home tuition to the end of March 2023. It says it did this in anticipation of completing the annual review by then. However, the Council failed to complete the review or plan, in advance, for the continuity of Mr Y’s tuition. The Council did not reply to the tuition company for around two weeks and only confirmed the extension to the end of the school year a week before the tuition was due to end. That was fault which caused both Mr X and Mr Y avoidable uncertainty and worry about whether Mr Y's education would continue.
43. After the Council extended the tuition to the end of the school year, the Council still did not complete the review and has not yet confirmed Mr Y’s tuition from the start of the next school year.
44. The Council has a duty to maintain the provision in Mr Y’s EHC plan until it makes a new decision. During my investigation and in response to my draft recommendations, the Council has taken steps to arrange Mr Y’s ongoing tuition. It says it is negotiating specific times with Mr X and Mr Y.

Communications and complaint handling

45. The evidence shows the Council’s communication with Mr X during the last 12 months was very poor. There are several, repeated instances of the Council failing to respond to Mr X’s emails or phone calls and of the Council failing to keep Mr X informed of changes of staff responsible for Mr Y’s plan.
46. There were also delays in the Council’s complaints procedure. The Council took nearly two months to respond at stage two of its procedure, when it should have done so within four weeks. The Council then did not complete all the actions it agreed during the complaint procure, including issuing the decision about the 2022 annual review.
47. These failures and poor communication were fault which added to the distress Mr X had already experienced due to the delays to Mr Y’s annual review.

Back to top

Recommended action

48. Within one month of my final decision the Council should:
• send Mr X its decision from the 2022 annual review, if it has not already done so;
• apologise to Mr X and Mr Y for the fault I have found and the impact this had on them;
• pay Mr X £439 (or such other sum as shown on receipts from Mr X) for the laptop and software he purchased on the advice of Mr Y’s tutor;
• pay Mr X £720 (or such other sum as shown on receipts from Mr X) for the online mentoring he has paid for to support Mr Y’s social interactions skills;
• arrange to pay the ongoing costs of Mr Y’s current mentoring support until it makes a decision on its upcoming review of Mr Y’s EHC plan;
• pay Mr Y £300 to recognise the upset and uncertainty caused by the poor and delayed review of his EHC plan and the delays in confirming his ongoing tuition;
• pay Mr X £500 to recognise the avoidable frustration, inconvenience and uncertainty caused by the delays, poor communication and other faults I have found, over the last 12 months; and
• pay Mr X £300 to recognise the time and trouble caused by delays in the Council’s complaints process and not completing the actions it agreed to.
49. The Council should provide us with evidence it has complied with the above actions.
50. I would normally have made service improvement recommendations prevent similar fault occurring in future. However, we made service improvement recommendations in a recent public interest report which address the fault I have found. Therefore, I have decided not to repeat those recommendations here.

Back to top

Final decision

51. I have completed my investigation. The Council was at fault for delays in reviewing Mr Y’s EHC plan, delays confirming Mr Y’s ongoing education, failing to provide some of the support in his plan, poor communication and in how it replied to Mr X’s complaint. This caused avoidable uncertainty, distress, time and trouble for which the Council agreed to apologise and pay a financial remedy.

Back to top

Investigator's decision on behalf of the Ombudsman