Summary: Mrs X complains that the Council failed to make suitable alternative education provision for her child, Y, and refused her request for a personal budget. The Council is at fault as it delayed in considering its duty to provide suitable alternative provision, delayed in commissioning the provision and delayed in issuing Y’s Education, Health and Care plan. The delays caused distress to Mr and Mrs X which the Council will apologise for and make a symbolic payment of £500 to them. The Council will also make a symbolic payment of £300 to Y to acknowledge the disadvantage caused to them by the delay in issuing the Education, Health and Care plan and a symbolic payment of £250 to acknowledge they missed three weeks of tuition.

The complaint

1. Mrs X complains that the Council failed to make suitable alternative education provision for her child, Y, between October 2022 and September 2023 when they were unable to attend school. Mrs X also complains the Council refused her request for a personal budget to support Y’s education and welfare. As a result, Y was unable to sit their GCSEs and Mr and Mrs X had to pay for educational and emotional support. Mr and Mrs X and Y were also caused significant distress.

Back to top

The Ombudsman’s role and powers

2. 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)
3. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

6. I have:

• Considered the complaint and the information provided by Mrs X;
• Made enquiries of the Council and considered the information provided;
• Invited Mrs X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Alternative education provision

7. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
8. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Education, Health and Care Plans

9. 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. 

10. 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 EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.

The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also provides that the final amended plan must be issued within 12 weeks of the review meeting.

11. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

12. 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. 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.

What happened

13. The following is a summary of the key events relevant to my consideration of the complaint. It does not include everything that happened.

14. Mrs X’s child, Y, attended a high school and, at the time of events, was in year 11. Y has Autistic Spectrum Condition (ASC) and an EHC plan. In September 2022, Y stopped attending school due to severe anxiety.

15. Y’s school arranged for an emergency annual review of Y’s EHC plan which took place in early November 2022. The record of the annual review notes Y’s needs could not be met with SEN support, their EHC plan required amending and their placement would be reviewed.

16. Mrs X chased the Council on several occasions for an update on the plan for Y’s education. She said she was concerned Y had been out of education since September and they were due to sit their GCSEs in May. The Council’s records note it was waiting to receive the annual review paperwork from the school.

17. The Council’s records show that, in mid December 2022, it agreed to provide education otherwise than at school (EOTAS). This comprised tuition and animal assisted learning for Y until the end of the academic year. The record of the Council’s decision notes Y would remain on the school roll so they could be entered into their GCSEs.

18. In late January 2023, Y started home tuition for nine hours per week. Also in January, Mrs X’s preferred provider for animal assisted learning contacted her to check if Y could attend as the available sessions were filling. Mrs X sent a copy of the provider’s email to the Council to chase as she was concerned Y would lose their place.

19. Internal Council emails show that officers responsible for commissioning education advised that the Council could not agree the placement direct with the animal assisted learning provider. It had to seek tenders for this aspect of Y’s package.

20. In response to my enquiries, the Council has said that it has a contracted framework of approved alternative provision providers. When a child is identified as needing alternative education, it is the duty of the Council to put the requirement out to tender to the framework as all public procurement activity must be carried out in accordance with the law. The Council has said that as a public body it has a duty to adhere to the Public Contracts Regulations (PCR) 2015.

21. The Council invited bids for the animal assisted learning provision on two occasions. The referral included Y’s preferred name and set out their educational and support needs and requirements. These included that Y required a tutor qualified to teach GCSEs. The referral did not refer to animal assisted learning.

22. Mrs X preferred provider for animal assisted learning did not submit a bid but an alternative provider did. The Council offered Mrs X a place for Y with the alternative provider. Mrs X declined the placement as Y would find it difficult to work with another provider due to their anxiety.

23. The Council invited bids again. The Council’s records show that the preferred provider said it did not have a centre that could provide a tutor for GCSEs. It did not submit a bid.

24. Y’s home tuition continued until early July. The tuition ended as the tutor was no longer available. The Council had requested Y’s tuition to continue until the end of July but the tuition provider could not supply a replacement tutor. In September 2023, Y took up a place at a college for their post 16 education.

Personal budget

25. Mrs X requested a personal budget for the upkeep of an animal she had purchased for Y to support their mental health. Mrs X said she had bought the animal due to the Council’s delay in arranging the animal assisted learning for Y. The Council’s resource panel considered Mrs X’s request. The panel’s records show it declined Mrs X request as Mrs X’s preferred provider did not bid and the Council had offered an alternative provider.

Education Health and Care Plan

26. The Council agreed to amend Y’s EHC plan following the annual review in November. The Council also carried out a preparing for adulthood assessment for Y. The Council issued the final EHC plan some 13 months later naming Y’s current college. In response to my enquiries, the Council has acknowledged it did not meet the statutory timescales for issuing the final amended EHC plan. The Council has said the delay was caused by demand and a lack of capacity in the relevant team.

Analysis

Delay in making alternative provision

27. Councils have a duty to make timely decisions on whether they have a duty under section 19 of the Education Act to make alternative provision for a child who is not accessing education. Councils should also make the provision without delay.

28. The Council delayed in considering its section 19 duty for Y. The Council was aware in early October 2022 that Y was not attending school. It should therefore have considered if the education was accessible for them at that time. The record of the annual review meeting in early November 2022 shows that the school placement was not meeting Y’s needs. Again, the Council should have considered its section 19 duty at this time as it appeared the education was not accessible for Y. I note the school appears to have delayed in sending the annual review paperwork to the Council. But the record of the annual review meeting shows an officer attended. So, the Council was aware the placement was not meeting Y’s needs at that time. The Council did not consider its section 19 duty until mid December 2022 and this delay is fault. This fault contributed to delays in commissioning alterative provision for Y.

29. There is also evidence of delay in arranging the animal assisted learning for Y once the Council agreed an EOTAS package. I do not consider the Council’s decision to tender for the animal assisted learning provision to be fault. The Council is entitled to make its own arrangements for commissioning provision and it has explained the reasons for the arrangements. But, officers were unaware of the Council’s process for commissioning the animal assisted learning. This delayed issuing the tender for the animal assisted learning by at least a month. The Council secured animal assisted learning in March 2023 but this was two months after the Council agreed the EOTAS package. The Council should commission education provision in a timely way so the time taken amounts to delay and is fault.

30. I do not consider the delay denied Y the offer of animal assisted learning. This is because the Council offered a provider to Mr and Mrs X. But the delay will have caused uncertainty and distress to Mr and Mrs X and Y which the Council should remedy.

31. The evidence shows Mrs X’s preferred animal assisted learning provider did not submit a bid for Y’s provision. In her correspondence with the Council, Mrs X has said this was due to the Council using Y’s former name. There is no evidence to show this is the case. The referral included Y’s preferred name. However, I consider the referral lacked clarity. The Council was already providing tuition for Y to support them with their GCSEs. So, it is not clear why the referral focussed on this aspect of the package. The referral did not explain Y’s requirement for animal assisted learning. I note Mrs X’s preferred provider said they could not provide support with Y’s GCSEs. But, on balance, I cannot say the lack of clarity prevented the preferred provider from bidding as another animal assisted learning provider submitted a bid. The Council also may not have selected Mr and Mrs X’s preferred provider after evaluating the bids. However, the fault will create some uncertainty for Mr and Mrs X which the Council should remedy.

32. The Council intended Y to receive home tuition until the end of July 2023. But the provision ended in early July as the tuition provider could not provide a replacement tutor. This was outside the Council’s control but I consider it amounts to service failure and is fault. This meant Y missed three weeks of the expected tuition.

Personal budget

33. It is not our role to decide whether Mr and Mrs X’s application for a personal budget should be granted. Our role is to consider if there is any fault in how the Council made its decision.

34. There is no evidence of fault in how the Council considered Mr and Mrs X’s application for a personal budget for the upkeep of Y’s animal. The evidence shows the Council considered the application, including Mr and Mrs X’s reasons for making it. The Council also explained why it did not agree to their application. As there is no evidence of fault in how the Council considered Mr and Mrs X’s application, I do not have grounds to question its decision.

EHC plan

35. There is evidence of fault in how the Council dealt with Y’s EHC plan following the annual review in November 2022. The record of the annual review shows it was agreed that Y’s EHC plan should be amended. The Council should therefore have issued a notice of amendment within four weeks of the annual review meeting setting out the proposed amendments. There is no evidence to show it did so. It should also have issued the amended plan within 12 weeks of the review meeting. The Council should therefore have issued Y’s amended EHC plan by the end of January 2023.

36. The Council has acknowledged it did not issue Y’s post 16 EHC plan within the statutory timescales due to a lack of capacity in the service. The Council should have reviewed and issued Y’s EHC plan naming their post 16 college by 31 March 2023. The Council did not issue Y’s amended EHC plan until early December 2023. This is a delay of 10 months and is fault. As a result, Y did not have an up-to-date EHC plan for longer than necessary.

37. I cannot know what provision the Council would have made for Y had it issued the EHC plan within the statutory timescales given they were out of school and moving to post 16 education. But the lack of an up-to-date EHC plan will have disadvantaged them, particularly as they started college. The Council should remedy this injustice.

Back to top

Agreed action

38. That the Council will:

1. Send a written apology to Mr and Mrs X and Y for the distress and uncertainty caused by the delays in commissioning animal assisted learning, the lack of clarity in the referral for animal assisted learning, the failure to provide tuition for Y for three weeks and the delay in issuing Y’s final Education, Health and Care Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Make a symbolic payment of £500 to acknowledge the distress and uncertainty caused to Mr and Mrs X by fault identified above.
3. Make a symbolic payment of £300 to Y to acknowledge the disadvantage caused to them by the delay in issuing their final Education, Health and Care plan.
4. Make a symbolic payment of £250 to Y to acknowledge the loss of the expected home tuition for three weeks.

The recommended payments at a) to d) are in accordance with our guidance on remedies.

5. By training or other means, ensure relevant officers are aware of the Council’s arrangements for commissioning alternative provision.
6. Draw up an action plan, with timescales, to address any ongoing delays in dealing with and issuing Education, Health and Care plans. This is to ensure the Council meets the statutory timescales for issuing Education, Health and Care plans.
5. The Council should take the action at a) to d) within one month of my final decision. It should take the action at e) and f) within two months of my final decision.

40. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

41. Fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman