Summary: The complainant (Ms X) said the Council failed to provide her son (Y) with suitable alternative education since he stopped attending school, failed to deliver all special educational provisions (SEP) included in his Education Health and Care Plan (EHCP), delayed issuing Y’s EHCP following reassessment of his Education Health and Care (EHC) needs and failed during consideration of Ms X’s Personal Budget request. We found fault with the Council in all areas of Ms X’s complaint. This fault caused injustice to Y and Ms X. The Council agreed to apologise, review the educational provision offered to Y, re-consider Ms X’s request for Personal Budget, make payments for the loss of Y’s education and Ms X’s distress and introduce an information leaflet to be sent when responding to requests for Personal Budget.

The complaint

1. Ms X says the Council failed to:
• Issue within the statutory timescales an amended EHCP for Y following the review;
• Provide alternative full-time education from January 2022, despite many requests;
• Provide Personal Assistant (PA)/Teaching Assistant (TA) and all the special educational provisions included in Y’s EHCP.
2. Ms X says the Council’s alleged failings had significant impact on Y and his family:
• Y – academic decline, increased anxiety about school;
• Ms X – inability to continue her university course, financial impact on the family of having responsibility for arranging activities for Y.

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What I have and have not investigated

3. I have not investigated any matters that were appealed to the SEND Tribunal in December 2022. I consider the issue of whether PA/TA was identified for Y as his special educational provision only for when he attended school (school-specific) as too closely linked to Ms X’s appeal and as such excluded from my investigation.
4. I have not investigated any events after the end of February 2023 when the Council offered Y three days with Provider 1 and 12 hours of individual tutoring on the remaining two days of the week. As explained under paragraph ten of this decision any concerns whether it is a suitable offer as well as about delivery of SEP and issues with Y’s Personal Budget after this time would need to be explored with the Council first.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
8. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
9. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
10. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
11. 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)
12. 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

13. I spoke with Ms X and considered the information she provided.
14. I made enquiries with the Council and considered the information it provided.
15. I reviewed the Council’s “Children and Young People’s Services Personal Budget Policy” of January 2020.
16. Ms 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

Alternative suitable education

17. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, 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). We refer to this as section 19 or alternative education provision.
18. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. If a child is unable to attend school because of illness, the council must make alternative arrangements once the child has been absent for 15 days, either consecutively or cumulatively. The council must consider the individual circumstances of each child and take account of any medical evidence or advice when deciding what arrangements to make.
19. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
20. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education.

Delivery of SEP

21. The council has a duty to secure special educational provision specified in an EHC plan for the child or young person. (Children and Families Act S.42)
22. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Reassessment of EHC needs

23. Once a decision to carry out a reassessment has been taken the process is the same as for the first EHC needs assessment and drawing up of the EHC plan with the same timescales and rights of appeal. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.191)
24. The local authority must aim to complete the re-assessment process as soon as practicable. The maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC plan. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.192)

Personal Budget

25. A personal budget is money identified by a council to deliver provision set out in an EHC plan where the parent or young person is involved in securing the provision.
26. Councils must provide parents and young children with information on:
• The provision for which a personal budget may be available;
• Details of organisations that provide advice and assistance on personal budgets;
• The conditions which must be met before direct payments may be made;

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 3)

27. A council must consider a request for a direct payment if a child’s parent made it at any time during the period in which the draft EHCP is being prepared or reviewed. (Special Educational Needs (Personal Budgets) Regulations 2014 regulation 4)
28. Councils may only make direct payments for special educational provision specified in an EHCP and not for funding a place at a school or post-16 institution. (Special Educational Needs (Personal Budgets) Regulations 2014 regulation 6(2))
29. Where a council refuses to make direct payment it must:
• Inform the child’s parents in writing of its decision, providing the reasons and informing of the right to request a review;
• Carry out a review of its decision, if requested to do so, considering any representations made by the child’s parent;
• Inform the child’s parent in writing of the outcome of the review, giving reasons.

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 7)

30. Councils must consider each request for a personal budget on its individual merits. It can refuse a personal budget if the sum is part of a larger amount and disaggregation of the funds for the personal budget would have an adverse impact on services provided or arranged by the council for other EHC plan holders, or it would not be an efficient use of the council’s resources.

What happened

Background

31. Y is ten and has significant physical and mental health difficulties. He has anxiety and possibly Post Traumatic Stress Disorder (PTSD). He regularly takes medication which manages his pain but causes fatigue as a side effect.
32. In January 2021 Y started attending mainstream primary school (the School). For many months Y struggled with school attendance.

From January to April 2022

33. In the third week of January 2022, following an incident with other children, Y stopped attending the School. In the beginning of February Y’s General Practitioner (GP) issued a letter outlining anxiety as the reason for Y’s absence.
34. The Council arranged an emergency review meeting for Y in the beginning of March. During this meeting the School stated it could not meet all Y’s special educational needs (SEN). Ms X asked the Council to remove the School from Section I of Y’s EHCP.
35. At the end of March the Council sent Ms X a post-review letter in which it agreed to carry out a reassessment of Y’s EHC needs.

From May to early December 2022

36. From the second week of May the Council arranged for Y to attend once a week an alternative education provision (Provider 1) offering pupils who do not engage with mainstream education the opportunities for outdoor learning. Shortly afterwards Ms X discussed with Y’s case officer the package of education Y would need.
37. The Council referred Y to its Alternative Tuition Service (ATS) and from the second week of June Y started receiving one and a half hours of tutoring a week. In the correspondence with Ms X about Education Otherwise than at School (EOTAS) the Council explained ATS had no capacity to offer more tuition.
38. Throughout June Ms X sought the Council’s position on:
• Timescales for issuing an amended EHCP for Y;
• Y’s school placement in view of the School not meeting his SEN;
• Alternative education for Y until the Council identifies a suitable placement for him.
39. In her email to the Council at the end of July Ms X stated she was concerned provision in place for Y was not equivalent to full-time education he was entitled to. She asked the Council’s advice on how to action her request for Personal Budget to fund a PA/TA for Y. Ms X was unhappy about the delays with issuing an amended EHCP for Y as she did not know what placement the Council intended to name for him and could not challenge the Council’s position by appealing.
40. The Council responded by:
• Pointing out the panel would discuss the increase in Provider 1’s offer for Y from September;
• Asking Ms X to provide details of the EOTAS package and Personal Budget sought.
41. In the beginning of August Ms X complained to the Council about:
• Delays in issuing a final EHCP for Y;
• Lack of full-time alternative education since Y was signed off from the School due to trauma and anxiety;
• No progress with Ms X’s Personal Budget request.
42. In the second week of August the Council issued a draft amended EHCP for Y, naming the School in Section I.
43. Ms X did not consider the amended plan reflected Y’s SEN. She asked the Council to take Y off the School roll and provide him with the package of education and therapies, including three days at Provider 1, three hours of tutoring, three hours of emotional based activities/therapies and 1:1 support from a PA who would ensure Y’s access to a full-time alternative education and ensure delivery of his daily physiotherapy programme.
44. Responding to Ms X’s complaint the Council:
• Apologised for the delays in issuing Y’s final EHCP;
• Offered Ms X a coproduction meeting at which Y’s Personal Budget could be discussed;
• Agreed an EOTAS package for Y from September 2022 with the increase of Provider 1’s offer to three days a week and continuing tutoring from ATS.
45. When sending another version of the draft EHCP with further amendments in mid-October, the Council advised it would be completing requests for Personal Budget and specialist placement.
46. In the beginning of November Ms X contacted the Council to find out the result of the panel’s discussions. She also mentioned a change in Y’s circumstances as Y had difficulties accessing Provider 1 in his wheelchair. Ms X suggested this might call for full-time support from 1:1 PA.
47. A few days later the Council communicated its agreement to some parts of Personal Budget asked by Ms X. It needed details to send the payment forms.
48. Over two weeks later, in response to Ms X’s query on the increase of individual tuition to 10 hours and another alternative provider (Provider 2), the Council stated Provider 2 had a very long waiting list. It told Ms X the panel continued to review Y’s Personal Budget.
49. At the end of November Ms X asked the Council to finalise Y’s EHCP within the next few days as she intended to appeal its content. She also expressed her intent to seek judicial review for the Council’s failure to deliver Y’s EHCP and comply with the timescales.
50. In the beginning of December the Council issued Y’s final amended EHCP with a mainstream school as a type named in its Section I.

From December 2022

51. Two weeks later Ms X lodged her appeal against Y’s EHCP.
52. Responding to Ms X’s stage 2 complaint the Council accepted recommendations of the Investigating Officer, upholding Ms X’s complaints about the Council’s failure to provide Y with a suitable full-time alternative education and to issue an amended EHCP for him following the review in the beginning of March. The Council offered Ms X £250 to recognise her frustration and time and trouble.
53. A day later the Council responded to Ms X’s request for Personal Budget. It explained the rules and told Ms X of the legislative and administrative framework. The Council told Ms X it would be prepared to increase Y’s tutoring to six hours a week but ATS had no capacity to offer more than two hours a week. The Council sought further details for some of the provisions asked to be arranged through Personal Budget.
54. Following further exchange of the correspondence, in the fourth week of January 2023 the Council agreed to six hours of tutoring for Y which would be provided by a different agency (The Tutoring Agency). The Council explained why it did not agree to some parts of Ms X’s Personal Budget request.
55. After another complaint from Ms X the Council agreed to increase the number of individual tutoring hours to twelve a week from after February half-term. Because of the Council’s refusal to fund 1:1 PA for Y who would support him during individual tutoring, Ms X said she could not spend more than two days as an adult present during delivery of tuition. For the remaining three days of the week she asked for a place for him at Provider 1.
56. At the end of March the Council provided a detailed response to the outstanding issues of Personal Budget asked for by Ms X. It explained its position on the PA/TA as the Council considered this to be a school-specific provision rather than the general requirement also when delivering alternative education.

Analysis

Alternative suitable education and delivery of SEP

57. Once Y stopped attending the School the Council seemed to have accepted there were medical reasons for Y’s non-attendance, explained by Y’s GP in his letter from the beginning of February 2022. As pointed out under paragraph 18 of this decision the Council should have arranged alternative education for Y from the second week of February. Holding an emergency review in the beginning of March 2022 should not have delayed arranging alternative education for Y.
58. From March 2022 till the end of February 2023 the Council failed to provide full-time suitable alternative education for Y and deliver all SEP included in his plan. Some of SEP might have been school-specific but these were left for the SEND Tribunal to decide. There were others, however, which were not contested by the Council as school-specific which, although included in Y’s EHCP, clearly were not delivered to him.
59. The extent of the Council’s failure was different throughout the period under my investigation as the Council kept increasing its educational offer for Y, which is to be commended. There is evidence of significant efforts made by the Council to deliver full-time alternative education for Y.
1. From the beginning of March till the first week of May – no educational provision for Y.
2. From the second week of May till the end of July - the educational package for Y consisted of one day a week from Provider 1 and one and a half hours of individual tutoring from ATS. There is no evidence Y could not access more education at the time. The Council’s correspondence with Ms X suggests such limited educational offer was caused by the lack of capacity rather than Y’s circumstances. This package of education cannot be seen as equivalent of full-time education, which is fault accepted by the Council in its stage 2 response.
3. From September till the end of February 2023 – the educational offer for Y increased to three days from Provider 1. The tutoring hours remained unchanged due to ATS’s capacity. Ms X repeatedly raised in her correspondence with the Council need for more academic teaching for Y, considering the nature of support offered by Provider 1. We were not provided with any evidence of the increased therapy or provision to address Y’s physical needs in line with the content of his EHCP. From the end of January the Council agreed to change tutoring agency and increase Y’s tutoring hours from two to six and then increased them further to 12, but this would only start after the February half-term.
60. The Council’s failure to provide Y with suitable alternative education and deliver all SEP included in his EHCP is fault, which the Council accepted in its stage 2 response. This fault caused injustice to:
• Y – loss of education, impact on his personal development;
• Ms X – negative impact on Ms X’s professional development as she could not take exams at the university course she had started, financial effects of having to postpone her exams, distress, time and trouble spent on chasing responses from the Council.

Reassessment of Y’s EHC needs

61. The Council had 14 weeks to finalise Y’s EHCP following its agreement to carry out a reassessment of Y’s EHC needs sent to Ms X at the end of March 2022. The Council accepted it failed to comply with this timescale in its stage 2 response in December 2022.
62. There was a delay of five months in issuing a final amended EHCP for Y. This is fault and caused Ms X injustice. Ms X’s appeal rights were delay which had negative effect on her for the following reasons:
• She was anxious to resolve the matter of a suitable placement for Y as soon as possible as having to educate him at home and being present during Y’s individual tutoring prevented her from continuing her studies;
• Ms X sought resolution for the interim educational arrangements for Y as she considered he should have been supported by a full-time PA/TA to access alternative education as well as for the delivery of all his SEP. Any delay in resolving these issues caused her distress.

Personal Budget

63. When considering Ms X’s request for Personal Budget the Council failed to:
• Provide Ms X with the comprehensive information on the process when she first asked for Personal Budget in July 2022. As explained under paragraph 53 only in December the Council provided Ms X with some information on Personal Budgets as well as referred her to its Local Offer for more details;
• Provide Ms X with the information on the organisations where she could seek advice and help;
• Tell Ms X of her right to challenge the Council’s decision on Personal Budget in line with paragraph 4.1 of the Council’s policy;
64. The Council’s failings, which amount to fault, caused Ms X injustice. The Personal Budget process was lengthy and confusing. Ms X spent much time contacting the Council, chasing its responses and complaining. She was not aware she could challenge the Council’s decision refusing parts of the Personal Budget she applied for.
65. Although Ms X was unhappy with the Council’s decision refusing parts of her Personal Budget request, it is not for us to look at the merits of the Council’s decision. However, the Council should have told Ms X of her right to ask for a review.

Remedies

66. We acknowledge the Council is in the process of a wide-scale reform and has been actively working on improving its services including staff training. In our recent report 22002489 we recommended training for all managers and staff members responsible for arranging alternative education provision, therefore there is no need to repeat this recommendation.

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Agreed action

67. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Ms X and Y for the injustice caused to them by the faults identified;
• review the level and suitability of provision offered to Y from the end of February 2023;
• re-consider Ms X’s request for Personal Budget and, if refusing any part of Personal Budget, advise Ms X on her right to ask for a review of the Council’s decision;
• make payments to Ms X to recognise the negative impact of the lack of suitable full-time education for Y and non-delivery of all special educational provisions included in his EHCP. The Council will pay Ms X the total of £3,000 consisting of:
1. £500 a month from the beginning of March till the first week of May, excluding Easter break;
2. £400 a month from the second week of May till the end of July 2022, excluding June half-term;
3. £250 a month from September 2022 till the end of February 2023, excluding half-terms and Christmas break.
• pay Mrs X £500 to recognise the distress caused to her by the Council’s delay in issuing a final EHCP following a reassessment of Y’s EHC needs and delay in her appeal rights.

The Council will provide the evidence that this has happened.

68. We also recommend the Council within three months of the final decision ensure all the parents/young people requesting Personal Budget in EHCPs are provided at the beginning of the process with the information required by law and SEND Code of Practice 2015, including details of the organisations that provide advice and assistance on Personal Budgets and the right to apply for a review of the Council’s decision. The Council will provide the evidence that this has been introduced as part of the process.

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Final decision

69. I uphold this complaint. I found fault with the Council for the lack of suitable alternative education for Y since he stopped attending school, non-delivery of all special educational provisions included in his EHCP, delays with issuing Y’s EHCP following the reassessment of his EHC needs and failings within the Personal Budget process. These faults caused injustice to Y and Ms X. The Council has accepted my recommendations, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman