Summary: Ms X complains that the Council failed to put in place alternative education for her son, C, when he was out of education and delayed in backdating his personal budget. We found the Council was at fault in that it delayed in completing an education, health and care needs assessment for C and in issuing a draft education, health and care plan. It also failed to put in place alternative provision between September and November 2022. However, the Council has provided a satisfactory remedy for the injustice caused.

The complaint

1. Mrs X complains that the Council failed to put in place alternative education for her son, C, when he was out of education from September 2022 and delayed in backdating his personal budget. As a result, she had to provide education for him herself and borrow money to enable her to do so. She says C missed out on education because she could not afford to pay for tuition. She says the situation caused the family a great deal of distress and she was put to significant time and trouble in trying to resolve the matter.
2. Mrs X also says the Council delayed in responding to her complaint at stage 2 of its complaints process.

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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. 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 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.

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How I considered this complaint

6. I have considered all the information provided by Mrs X, made enquiries of the Council and considered its comments and the documents it provided.
7. Mrs X 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

Legal and administrative background

Education, health and care plans

8. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
9. 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 EHCP’s. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Alternative education

10. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of “illness, exclusion from school or otherwise” 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).
11. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19 (6))
12. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
13. We made six recommendations. We said councils should:
• consider the individual circumstances of each case and be aware they may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in reaching decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Personal budgets

14. A personal budget is an amount of money that allows parents or young people to have some involvement in arranging provision. The law says councils must offer a personal budget to most parents or young people who wish to receive them.
15. One way a personal budget can be delivered is as a direct payment to the child’s parent. The Special Educational Needs (Personal Budgets) Regulations 2014;
• a council must provide information to a parent of a child with an EHCP about the availability of personal budgets and the conditions for receiving a direct payment;
• a council should consider the individual circumstances of each request for a direct payment; and
• when deciding whether to make a direct payment the council can take account of any adverse impact on other services, including whether the direct payment would be “… efficient use of the authority’s resources”.

Key facts

16. Mrs X’s son, C, is six years old. He was diagnosed with autistic spectrum disorder in June 2022. He has difficulties with social interaction and communication and ‘s has never attended school because of severe anxiety. C’s parents were educating him at home and commissioned a private psychology report to better understand the support he needed. They concluded they were unable to provide the level of support recommended and decided to pass his education back to the Council.
17. In July 2022, Mrs X asked the Council to complete an EHC assessment for C. She requested a bespoke Education Other Than at School (EOTAS) timetable and asked the Council to put in place alternative provision for C until the assessment was completed. The Council agreed to complete an assessment on 9 August 2022.
18. In September the Council told Mrs X it would not be able to complete the assessment by the statutory deadline because of a delay in receiving the educational psychologist’s (EP) report.
19. On 21 September Mrs X complained to the Council about the delay. She again asked it to make alternative provision for C as he had now missed 15 days’ education.
20. Mrs X sent a further email on 27 September chasing alternative provision.
21. On 12 October the Council confirmed it would source a bespoke package of education for C for the short-term. It made referrals to several alternative provision providers but none of them had capacity. So, it made further referrals. Mrs X said she did not want the Council to consult online learning platforms because C did not engage well with this type of learning.
22. The Council responded to Mrs X’s complaint at stage 1 of its complaints procedure on 18 October 2022. It apologised that it was not yet able to draft an EHCP for C as it was still awaiting the EP’s report. Mrs X asked for her complaint to be escalated to stage 2 of the Council’s complaints procedure.
23. On 27 October the Council received the EP’s report.
24. On 30 October Mrs X sent the Council a list of the expenses she had incurred in providing education for C since 1 September 2022. The list included gymnastics, soft play, swimming, therapy and the gym. She said C was missing out because the family could not afford to pay for alternative education provision as well. She said she was still waiting to receive the draft EHCP which was overdue and details of the bespoke package the Council had agreed to provide.
25. On 2 November the Council issued a draft EHCP. Mrs X responded to the draft plan and requested a personal budget (PB).
26. In mid-November 2022 C began attending an online provision offering emotional support for children and young people through gaming and game design. Mrs X funded this and sent a further email about the costs she had incurred since September.
27. On 15 November the Council issued a further draft EHCP. Mrs X confirmed her preferred provision for C was Company A which provided 1:1 support focusing on play-based learning. The Council confirmed it could commission up to 18 hours with Company A but would also put in place other provision. Mrs X said it would be a long time before C could manage 18 hours. She said, “I think three hours a day twice a week will be a big achievement for now hopefully increasing to him being happy to do 2 full days”. C was also continuing to access the online gaming provision, therapy, gym and swimming.
28. On 17 November 2022 the Council issued a further stage 1 response to Mrs X’s complaint. It apologised for the delay in the process and the distress this had caused.
29. On 18 November 2022 the Council issued the final EHCP and named EOTAS in section I of the plan. It wrote to Mrs X confirming it agreed her PB request. It explained it had not been able to do so previously because it needed to wait until the draft EHCP was issued so it could confirm what educational provision was being specified. It said that, once the draft EHCP was issued on 15 November, it had reviewed Mrs X’s PB request and confirmed all the activities detailed would support the provision set out in C’s draft EHCP. It agreed to backdate the PB to 1 September 2022. The Council also confirmed it was awaiting an update from Company A and another tuition provider, Company B. It said that, once it received confirmation that they could meet C’s needs, this these tuition services would be added to his bespoke package and funded by the Council. It again apologised for the delay in receiving the EP report and the resulting delay in being able to agree Mrs X’s request for a PB. It offered Mrs X £500 in recognition of the time, trouble and frustration she had experienced as a result.
30. Company A began working with C in late November. He was receiving two-hour sessions at home twice a week and the intention was that this would gradually increase to include taking him out. The Council asked Mrs X whether she had heard from Company B. She replied saying she did not think C would be able to cope with anything more at this point and Company B should be put on hold until C had settled with Company A.

Analysis

Delay

31. The Council accepts there was a delay in completing the EHC needs assessment and in issuing a draft EHCP. This caused Mrs X and her family distress and frustration.
32. Mrs X says the Council failed to put in place alternative educational provision for C while the assessment was ongoing despite her requesting this.
33. The Council says Mrs X refused formal learning through an online provider which is its standard offer. However, the Code makes it clear that learning should be suitable to the child’s needs and abilities so Mrs X was entitled to decline online learning as C would not engage with it.
34. The Council also says it took longer than expected to find spaces at suitable alternative provision. It did not consult with providers until mid-October 2022 despite being aware from July 2022 that Mrs X felt unable to continue educating C at home.
35. I find the Council was at fault in failing to secure alternative provision for C between September and November 2022. However, I do not consider C lost out on provision as a result because Mrs X was continuing to provide education for him this period.
36. The delay in completing the assessment also led a delay in accepting Mrs X’s request for a PB and refunding her expenses. The Council has explained that it could not approve the PB request until the draft EHCP was issued because it needed to ensure that the activities detailed by Mrs X would support the provision set out in the EHCP. I find no grounds to criticise this approach. However, if the draft EHCP had been issued on time Mrs X’s request for a personal budget could have been approved a month earlier.
37. The Council has backdated the PB and reimbursed Mrs X for the expenses she incurred in educating C since 1 September 2022. It has also apologised to Mrs X and paid her £500 in recognition of the time, trouble and frustration she suffered as a result. I consider this to be a satisfactory remedy for the injustice caused.

Complaint handling

38. Mrs X complained to the Council on 21 September 2022. The Council responded at stage 1 of its complaints procedure on 18 October 2022. Mrs X requested her complaint to be escalated to stage 2 the same day. The Council says it chose to provide an additional stage 1 response as per its complaints policy. It did so on 15 November 2022 and sent a follow-up to that on 19 November 2022.
39. The Council’s policy states that, where a complainant is dissatisfied with the stage 1 response, it may issue a further stage 1 response if additional information is presented after the initial response or where the initial response did not address all the points in the original complaint. So, there are no grounds to criticise the Council for issuing a further stage 1 response. However, the Council delayed in providing the response which should have been sent on 2 November. The Council has apologised for this. I am satisfied this is a satisfactory remedy for any injustice caused.

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Final decision

40. I find the Council was at fault in that it:
• delayed in completing an EHC assessment and in issuing a draft EHCP;
• failed to put in place alternative provision for C between September and November 2022; and
• delayed in issuing its second stage 1 response to Mrs X’s complaint.
41. I have completed my investigation on the basis that I am satisfied the Council has provided an appropriate remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman