Summary: Mrs X complains the Council failed in its duties to provide suitable education and Special Educational Needs support to her child, P. There was fault by the Council which caused P to miss education and SEN support. It also caused avoidable distress for P, and avoidable distress, time, and trouble for Mrs X. The Council agreed to apologise, pay a financial remedy, and properly consider Mrs X’s request for a Personal Budget for P’s Education, Health, and Care Plan. The Council will also review relevant processes, and issue reminders to staff in its Special Educational Needs Service and Children’s Complaints Team.

The complaint

1. Mrs X complains the Council failed in its duties to provide suitable education and Special Educational Needs (SEN) support to her child, P, from September 2022. She says the Council:
• did not ensure P was provided with suitable alternative education when they could not attend school;
• delayed in assessing P’s Education, Health, and Care (EHC) needs when Mrs X asked it to in 2023;
• failed to ensure P received the SEN provision in their EHC plan once it issued a final plan in 2023; and
• did not provide a point of contact, communicate with Mrs X properly, or respond properly when she complained.
2. Because of this, Mrs X says:
• P missed education and SEN provision which caused distress;
• the family had to find and fund some provision themselves; and
• Mrs X and her husband were caused stress, frustration, and time and trouble.
3. Mrs X wants the Council to apologise, provide P with suitable education and SEN support, and compensate the family for missed education and stress.

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The Ombudsman’s role and powers

4. 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)
5. When considering complaints 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.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. 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)

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How I considered this complaint

9. I considered:
• information provided by Mrs X and her written responses to my queries;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
10. Mrs X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legislation and statutory guidance

Education, Health, and Care (EHC) Plans

12. A child or young person with special educational needs (SEN) 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.
13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

EHC needs assessments

14. 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. It says the following.
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

EHC Plan Personal Budgets

15. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child’s EHC Plan. A child’s parent 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.
16. The final allocation of a Personal Budget must be enough to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
17. There are different ways the Council can deliver a Personal Budget. Families can ask for any combination of the following.
• Direct payments. Cash payments made to the child’s parent so they can pay for and manage services themselves to deliver the provision in the EHC Plan. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent of their right to request a formal review of the decision.
• Arrangement with the Council or school. The Council or school can hold the money and the parent can decide how to spend it.
• Third party arrangement. The parent chooses an individual or organisation to manage the money for them.
18. The Council’s Personal Budget policy says where it does not agree a request for a personal budget or direct payment, it will inform the child’s parent of the decision and reasons in writing. It will also tell them of their right to request a review of the decision. It will send the review outcome and reasons to the parent as soon as it completes the review.

Alternative education while out of school

19. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
20. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
21. 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)
22. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
23. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
24. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
25. 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 sight? published July 2022. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

EHC Plan appeal rights

26. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
27. Once the Council issues a final EHC Plan, there is a right of appeal to the SEND Tribunal against the description of the child’s SEN, the SEN provision specified, the school or placement specified, or the fact that no school or other placement is specified.
28. 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)
29. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
30. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
31. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
32. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.  

EOTAS (Education Otherwise Than At School)

33. Councils have the power to arrange education and SEN provision to be delivered otherwise than at a school or institution (EOTAS), where it would be inappropriate for a child to attend a school setting. (Children and Families Act 2014 Section 61).

What happened

34. Mrs X’s child, P, has special educational needs (SEN). In the 2022/2023 school year, P was in year 8 and on roll at a mainstream secondary school. They did not have an EHC Plan in place. They stopped attending school at the start of year 8.
35. In January 2023, Mrs X told the Council P was out of school and had been for the whole school year. She said:
• P had various special educational needs;
• P was too unwell to attend any school;
• any alternative education arranged for P would need to be “very minimal”. She attached a letter from a paediatrician working with P. The paediatrician said, “It is obvious that [P] is not going to be able to manage a return to mainstream school and I think it is unlikely that [P] would cope with a transition to a specialist school given [their] experiences. The most viable option for education will be EOTAS, but [P] needs a period of recovery first before there could be any attempt for a tutor to engage with [P]”; and
• the Council should provide a personal budget so she could purchase occupational therapy sessions, and educational materials and equipment, such as books and a laptop.
36. Two weeks later, Mrs X contacted the Council again. She said:
• P was “unable to attend school, or any educational establishment… any attempt to engage [P] in an educational establishment is likely to further damage [their] mental health and wellbeing… [P] is physically, mentally and emotionally unable to access any learning at this moment in time and any attempt to even discuss this brings up huge fight or flight. [P] has been left so anxious [they are] even unable to even pick up a book”; and
• her view was P needed an EHC Plan which specified an EOTAS package, so they could start educational activities at home with Mrs X.
37. During the EHC needs assessment process, in April 2023, the Council received advice from P’s school, and from NHS services working with P. This supported that P was too unwell to engage in any formal learning or education. P’s paediatrician proposed they needed:
• a staged approach over 12-18 months, working towards short formal learning activities within the home, before one-to-one tuition would even be possible;
• a personal budget for equipment and resources P could use at home, such as a laptop and books;
• direct Occupational Therapy (OT) and access to sensory equipment; and
• direct mental health interventions.
38. The Council issued a final EHC Plan for P in July 2023, at the end of year 8. This said the Council considered a mainstream school setting to be suitable for P but did not name a specific school placement. Mrs X appealed to the SEND Tribunal about the final EHC Plan. She said P could not attend any educational setting and the Plan should specify an EOTAS package instead.
39. In August and September 2023, Mrs X made two concurrent complaints to the Council. She said:
• the Council took too long to carry out the EHC needs assessment and issue a final EHC Plan;
• none of the SEN provision in the July Plan had been arranged. She said P was still too unwell to attend any educational setting but should receive the SEN provision regardless; and
• it was now the start of year 9 and P was still out of school with no alternative education. The Council had not properly considered its duty to ensure suitable education was in place for P as far as possible while they could not attend school.
40. In October 2023, the Council received an updated report from P’s paediatrician which said, “[P] has continued to experience extreme daily difficulties... [P] has continued to struggle to engage with any activities but has occasionally been able to briefly undertake a cooking task or craft”.
41. In November 2023, Mrs X was not satisfied with the Council’s responses to her complaints so far, so brought her complaint to the Ombudsman. We chased the Council to issue its final response to Mrs X, which it did in February 2024. In response to Mrs X’s complaints, the Council:
• accepted it delayed in carrying out the EHC needs assessment and apologised for poor communication during the delays;
• apologised the SEN provision from P’s July 2023 EHC Plan was not immediately arranged. In February 2024 it said it took steps to arrange Occupational Therapy sessions, but did not mention any of the other SEN provision set out in the Plan; and
• did not specifically respond to Mrs X’s complaint that it had failed to consider its duty to provide alternative education to P while they were out of school.
42. Mrs X was dissatisfied with the Council’s complaint outcome, so we began our investigation. She provided us with another report from P’s paediatrician dated February 2024, which said:
• “[P] is still not able to engage in any schoolwork. Any mention of school or related topics triggers extreme distress, leading to meltdowns…”;
• “Engagement in occupational therapy (OT) sessions has been challenging… However, there has been some improvement in [P’s] ability to cope with these sessions over time”;
• “[P] has been unable to read to [themself] for the past 16 months”; and
• “[P] continues to require a suitable education plan (bespoke EOTAS as previously recommended and outlined) that provides alternative education methods that better accommodate [their] needs”.
43. In July 2024, P finished year 9. They were still out of school and only the OT sessions from the provision in their EHC Plan was in place.

My findings

EHC needs assessment

44. We can look at delays in the EHC needs assessment process. We expect councils to follow statutory timescales set out in the Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
45. When Mrs X asked the Council to assess P’s EHC needs, it should have issued the final EHC Plan no more than 20 weeks later. It took 26 weeks to issue a Plan. This delay was outside statutory timescales, so was fault.
46. Also, it was clear Mrs X was asking for a Personal Budget to arrange SEN support for P herself. The Council should have considered and properly responded to this request once it decided it would prepare an EHC Plan. Its failure to do so, was fault.
47. The Council’s failure to consider Mrs X’s request for a Personal Budget, and to complete its assessment within statutory timescales, caused Mrs X distress and frustration, for which it should provide a remedy. I have considered injustice to P separately, later in this decision statement.

Alternative education

48. The Council knew P was out of school, with no education in place, from January 2023, when Mrs X contacted the Council. Mrs X said P’s school should have informed the Council before this, because P had been out of school since September 2022, and had struggled with attendance in the previous school year. The Ombudsman cannot investigate complaints about the actions of schools, unless it relates specifically to actions taken on behalf of a council in securing educational provision set out in Section F of an EHC Plan. I cannot investigate the actions of P’s school in terms of whether it should have informed the Council of their attendance issues. I can only consider the actions of the Council, once it became aware P was out of school.
49. Once the Council knew P was out of school with no education in place, from January 2023, it should have immediately considered its duty to arrange suitable alternative education under section 19 of The Education Act 1996. I am not satisfied the Council gave this due consideration. I accept the evidence shows P would have largely been unable to engage with alternative education across the period I considered. However, the Council had no records from the time of the events to show it properly considered P’s individual circumstances and whether there was anything it could offer the family. Mrs X specifically asked it to consider funding support she could provide to P at home, and there was no record it properly considered this. This was fault.
50. Also, the Council should have regularly kept the case under review to consider whether P’s circumstances, or capacity for engaging with education, had changed. Again, although I accept the evidence now shows P’s circumstances did not change, I still find the Council at fault. It was not proactive in monitoring P’s education or keeping its section 19 duties under review. Mrs X continuously chased the Council and provided updates roughly every three months, but it did not ask for these updates and there are no records of how it considered them.
51. The Council failed to properly respond to and engage with Mrs X about P’s missed education. This caused her distress and frustration, for which it should provide a remedy. I have considered injustice to P separately, later in this decision statement.

Delivery of EHC Plan after July 2023

52. After the Council issued a final EHC Plan in July 2023, it had a duty to immediately ensure P received the provision set out in their Plan, as far as possible outside a school setting.
53. Once the Council issued the July 2023 final Plan, it took no steps to arrange the provision in the Plan, or to consider whether it was possible to do so given P’s circumstances. It eventually arranged the Occupational Therapy set out in the Plan, but only from February 2024. The Council told us it did not consider whether it could arrange any of the other provision in the Plan because of the information provided by P’s paediatrician in January and September 2023. I am not satisfied with the Council’s explanation about this. It had no records from the time to show it gave this due consideration once the final Plan was in place. As previously explained, I am not satisfied the Council kept proper oversight of P’s circumstances, or capacity for engaging with education and SEN provision.
54. I considered the provision set out in the Plan and decided the Council should have considered whether it could arrange the following provision outside a school setting.
• Occupational Therapy (OT). One 50-minute session per week of OT with access to sensory integration equipment, delivered by a qualified OT therapist.
• Social skills. Two 40-minute sessions per week of social skills interventions, delivered by a suitably trained adult.
• Emotional Literacy. One 40-minute session per week of direct teaching/ intervention on emotional literacy to understand thoughts, feelings, behaviour, and boundaries. Delivered by a suitably trained adult e.g., an Emotional Literacy Support Assistant.
• Emotional Coaching. One 60-minute session per week of emotional coaching, delivered by a key worker suitably trained in emotional coaching.
55. The Council failed to properly respond to and engage with Mrs X about P’s missed SEN support. She raised this when she complained in August 2023, but the Council did not respond to her concerns until February 2024, after she came to the Ombudsman. This caused Mrs X distress and frustration, for which it should provide a remedy. I have considered injustice to P separately, later in this decision statement.

Injustice caused to P – missed education and SEN support

56. As explained at paragraphs 26 to 32, there are limits to our investigations where there is a right to appeal to the SEND Tribunal about a final EHC Plan. The Council issued a final Plan in July 2023, at which point Mrs X had the right to appeal to the Tribunal. Mrs X appealed in August 2023. We cannot investigate any matter which has been appealed or is connected to an appeal. Part of Mrs X’s appeal was about the Council’s decision to name a mainstream school type in P’s Plan because she thinks it should specify EOTAS instead. P’s missed education is connected to the issue Mrs X appealed. Therefore, we cannot investigate, or recommend a remedy for, any lack of alternative education from the point the Council issued the final amended EHC Plan on 7 July 2023.
57. Therefore, the Council should remedy the injustice caused to P by missed education from January 2023 (when it became aware P was out of school), to July 2023 (when the appeal right arose). This is two terms of education.
58. The Council should separately remedy the SEN provision P missed because it did not meet its duty to deliver the final EHC Plan. As it delayed in issuing the Plan by six weeks, it should remedy this from the point it should have issued the Plan, the end of May 2023. At the time of my decision, it has still not properly considered its duty to deliver the Plan. Therefore, it should continue to provide a financial payment for missed SEN support until it has evidenced to the Ombudsman it has satisfied itself it is delivering P’s SEN provision as far as possible outside a school setting.
59. Mrs X told me she provided some educational materials and equipment for P to use at home, which she paid for herself. She provided a breakdown of these costs. I cannot say, even on the balance of probabilities, what the Council would have decided had it properly considered its section 19 duties, or Mrs X’s request for a Personal Budget and EOTAS package. Therefore, I cannot recommend the Council should repay Mrs X for the money spent. I can only recommend a symbolic payment to recognise the injustice caused by the Council’s failings, in line with our guidance on remedies. This says:
• where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss; and
• in addition to educational provision, we recommend additional remedies for loss of SEN support such as Occupational Therapy, or other direct therapies and interventions. The level of financial remedy for this is likely to be lower than that for loss of educational provision. We consider the level of provision missed and the impact of this on the child.
60. In deciding a suitable financial payment to recognise the education and SEN support D missed, I considered the following.
• As set out in our guidance on remedies, we do not consider years 8 and 9 to be one of the most significant periods in a child’s school career, as we would for say the first year of secondary school, or a public exam year.
• It is clear P would not have been able to engage with formal teaching or tuition during this time. However, it is possible they could have engaged with a small amount of support at home, had the Council properly considered Mrs X’s request for a Personal Budget. Given how little P could have engaged with, I decided a payment lower than our usual range for missed education is appropriate.
• Once P’s final EHC Plan was in place, they missed most of the direct therapies and interventions specified in the Plan.
61. Based on these factors, I decided the Council should provide a remedy of:
• £500 per term for the 2 terms of education P missed from January to July 2023; and
• £400 per term for the 3.5 terms of education and SEN support D missed in from the end of May 2023 to July 2024. This termly payment should continue until the Council has evidenced to the Ombudsman it has properly satisfied itself it is delivering P’s SEN provision as far as possible outside a school setting.

Communication and complaint handling

62. The Council accepted fault in how it communicated with Mrs X and handled her complaint. It said:
• it delayed in responding to Mrs X’s complaint by 20 weeks; and
• overall, its communications with Mrs X were poor and inconsistent.
63. I also found the Council did not fully respond to all concerns raised by Mrs X when it responded to her complaints. This was fault, which meant she never got a proper response to her concerns about alternative education for P, before she came to the Ombudsman.
64. This caused Mrs X distress and frustration, for which the Council should provide a remedy.

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Agreed action

65. Within one month of our final decision the Council will:
1. apologise to Mrs X for the impact of the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology;
2. properly consider and respond to Mrs X’s request for a Personal Budget, which it should have considered when preparing the July 2023 EHC Plan. The Council will need to complete a review of P’s EHC Plan within one year of the July 2023 Plan (regardless of the ongoing SEND Tribunal appeal). It should consider a Personal Budget request from Mrs X as part of this 2024 review process;
3. pay the family a total of £2,900, comprising of:
1. £2,400 to recognise the education and SEN support D missed. This is intended for D’s future educational benefit;
2. £300 to recognise the avoidable distress, time, and trouble caused to Mrs X by the Council’s failings; and
3. £200 to recognise the avoidable distress to D.
4. continue to pay the family £400 per term for missed SEN support from September 2024 onwards, until it has evidenced to the Ombudsman it has properly satisfied itself it is delivering P’s SEN provision as far as possible outside a school setting.
66. Based on the faults identified in this case, I would usually propose recommendations for the Council to improve its services to ensure it:
• meets statutory timescales for EHC needs assessments;
• properly considers and responds to requests for a Personal Budget;
• properly considers its section 19 duties to arrange alternative education when a child is out of school, keeps this under regular review, and fully records its considerations about this;
• meets its duty to ensure SEN provision outlined in a final EHC Plan is in place immediately (or as far as possible when a child is out of school); and
• communicates properly with families and responds fully to complaints within the timescales set out in its complaints procedure.
67. Ofsted and the Care Quality Commission (CQC) inspected the Council’s special educational needs and disability (SEND) service in 2019 and identified nine areas of significant weakness, including the quality of the EHC Plan process. In September 2022, Ofsted and CQC inspected again and identified inadequate progress in all areas of weakness. Following this, in March 2023, the Department for Education (DfE) issued a SEND Improvement Notice. In August 2023, the Council published an Improvement Plan (Accelerated Progress Plan). In this document the Council set out specific actions for improvements to its SEND services, some of which we have been monitoring as part of our casework. This included various actions to address timescales for EHC needs assessments, and poor communication with families, with new processes introduced around the same time Mrs X complained in early to mid-2023. Therefore, I have not made further recommendations about these areas as I consider this is being suitably addressed and monitored by DfE.
68. I have also not made recommendations to address complaint handling delays. The Council accepted, following recent Ombudsman report 22003403, there were issues with its complaint handling timescales. It has informed the Ombudsman of its plan to clear this backlog and continues to update us on progress.
69. Finally, I have not made recommendations to address the Council’s failure to properly consider its section 19 duties for a child out of school. We have made several recent recommendations to the Council about faults in this area. In November 2023, the Council agreed to our recommendation for case 22011633, to ensure it reviews and implements a new alternative education policy, and provides training to staff on this new policy. We are still corresponding with the Council about completion of this recent recommendation. Therefore, I do not consider it appropriate to make further recommendations about the same fault now.
70. Within three months of our final decision the Council will:
1. issue a reminder to all staff in its SEND service that where the Council decides to issue an EHC Plan following an EHC needs assessment, the family has the right to request a Personal Budget, and the Council must properly consider and respond to this request. With this staff reminder, it will also share a copy of the Ombudsman’s November 2023 Focus Report, ‘Parent Power: personal budgets in EHC Plans’;
2. review the process it follows after it issues a final EHC Plan, to ensure it meets its duty to immediately secure the SEN provision in the Plan. It will:
1. specifically consider its practice where a child is out of school or not engaging with education. It will ensure it properly considers to what extent it can deliver the Plan and makes a record of this consideration; and
2. decide whether it needs to make any administrative changes to its processes, or deliver training to staff, to ensure this is not missed in future, as it was in P’s case.
3. issue a reminder to staff in its Children’s Complaints Team, about the importance of responding to all issues raised in a complaint, so complainants do not need to escalate their concerns to get a response.
71. The Council will provide us with evidence it has complied with the above actions.

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Final decision

72. I have completed my investigation. There was fault by the Council which caused P to miss education and SEN support. It also caused avoidable distress for P, and avoidable distress, time, and trouble for Mrs X. The Council agreed to our recommendations to remedy this injustice, review relevant processes, and issue reminders to its SEND service and complaint handling staff.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman