Summary: The Council failed to ensure that Ms X’s daughter received the educational provision set out in her Education Health and Care Plan, or consider whether it had a duty to make alternative provision when she was unable to attend school. It has not issued a new Plan following an emergency review, did not properly consider her request for a personal budget, and did not communicate with Ms X properly. The Council’s shortcomings caused Ms X and her daughter distress, frustration, and uncertainty. It has caused Ms X’s daughter to miss out on educational provision.

The complaint

1. Ms X complains about how the Council has handled her daughter special educational needs. In particular, she says the Council failed to:
• make sure that the provision set out in the Education Health and Care (EHC) Plan was made;
• consider properly her request for a personal budget and Education Otherwise than at school (EOTAS); and
• communicate with her properly, respond to her contact, or keep her informed.
2. Ms X says that as a result of the Council’s shortcomings, her daughter has been without a full educational provision since November 2022. Her daughter’s mental health has deteriorated. Ms X says she has been caused distress and frustration and has not been able to work.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)

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What I have and have not investigated

5. I have investigated the Council’s action from November 2022 to date.
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. Where a council has issued a final EHC Plan, there is a right of appeal to the Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.
8. In this case, the Council issued a final EHC Plan in March 2023. Ms X had the right to appeal elements of the Plan to the Tribunal if she did not agree with them, and we would normally expect her to do so. We would then not investigate matters that are connected to the appeal.
9. However, when the Council issued the Plan, Ms X did not disagree with it and so it would not be reasonable to expect her to appeal. For this reason, I have decided that the Ombudsman’s remit extends to the Council’s actions from November 2022 to date.

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How I considered this complaint

10. I considered the information provided by Ms X and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments of both parties before issuing this final decision.

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What I found

The law and guidance

EHC Plans

11. 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. 
12. 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)  
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

EHC Plan reviews

14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
17. 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.

Personal budgets and direct payments

18. 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. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
19. 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.
20. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
21. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

What happened

22. Ms X’s daughter, K, has an EHC Plan. However, she was unable to attend school from November 2022, due to her special educational needs. The school had tried a part time timetable but K could not go to school.
23. The school completed an annual review of the EHC Plan in December 2022. K’s parents, the school’s SEN officer and the Speech and Language Therapist (SALT) attended the meeting. The annual review records that K wanted to stay at home and do online learning. Ms X acknowledged that several school placements had failed and so she agreed K should move to joining the school classes online. The SALT recommended further assessments and Education Otherwise than at School (EOTAS) to include elements that compliment the online classes, to make sure that K’s received an appropriate education. EOTAS would allow K to receive some or all of her education other than at a school.
24. The review records its recommendation as a change from this placement to EOTAS, with online learning, and to have in depth SALT, Occupational Therapy and Educational Psychologist assessments. Ms X says that a personal budget was discussed at this meeting but the school did not reflect this in the paperwork.
25. On 13 January 2023, the Council notified Ms X that it intended to amend K’s EHC Plan and it sent her the amended Plan. The Council also notified Ms X that it had refused her EOTAS and that its Panel had recommended that the school set up a bespoke package to include tutoring and mentoring, with the intention to review whether K could go back to attending school in the future. The online learning started in January 2023.
26. At Ms X’s request, the Council met with her to discuss the package and the draft EHC Plan. The Council referred K for educational psychologist assessment. The Council asked Ms X for any comments on the draft EHC Plan or if she needed more time. On 2 March, Ms X asked the Council to amend the draft EHC Plan and to consider a personal budget so that she can arrange parts of the provision. The Council issued the final EHC Plan on 3 March 2023. It did not answer Ms X’s request for a personal budget.
27. In March 2023, the tutor left and so the online learning ended. K then tried online learning via an external agency but this did not work as K could not engage with the group learning. The school arranged tutors via an external agency. But this only lasted one session until K’s special educational needs prevented her from engaging. And so by March 2023, K was not receiving any education at all.
28. Ms X asked again for EOTAS because K had tried various different settings and none had worked. The Council told her it did not have capacity for this but she should submit a plan for provision. Ms X did so and the plan she submitted was less provision than in the EHC Plan. Ms X tells me that the Council initially agreed to fund the plan but at a meeting with her in April, the Council then decided that it would need to have the new Occupational Therapy, SALT and Educational Psychologist assessments before its Panel could consider the request for funding. Ms X says the Council asked her to arrange the OT and SALT assessments.
29. In June, the Educational Psychologist completed an assessment and report. They said that K needed a bespoke package to enable her to reengage with education. This should be led by adults trained in working with people with emotional school avoidance either through a mentor or teaching assistant or key adult role. They recommended provision based on K staying at home while she built up her mental wellbeing and reduced her isolation.
30. In July, the school held an emergency review. It asked the Council to increase the funding for K’s educational provision. Ms X also wrote to the Council following the review. She said K’s social and mental wellbeing was at an all-time low. Ms X said K had received little or no provision for the whole of the year. Ms X said the review had updated the provision plan but she had not been able to find a suitable OT that can do an assessment to update the EHC Plan. Ms X asked when this new provision plan would go back to the Panel.
31. Ms X complained in July 2023. She said the Council had not approved the full provision. She was supposed to be the specialist TA, and there was no personal budget for the physical or social activities on her plan. Ms X asked for this money to be backdated so she could provide this over the school holidays. She said there was a sharp decline in her daughter’s mental health and an emergency review found she was not achieving any of her outcomes.
32. At the end of August, the Council’s Panel discussed the school’s request for increased funding and the new provision plan developed during the emergency review. The Council said the school had costed a plan including mentors, SALT and psychotherapy but K was not engaging with professionals. The Council decided that it needed to discuss the situation further with the school before it could approve funding for the plan.
33. The Council did not keep Ms X updated. She chased it in September, and the Council told her it needed more information and that the NHS may be able to provide the SALT and OT assessments. It also asked her why there was provision for K to work with professionals if she could not engage. Ms X told the Council all this had been discussed with its officers at the meeting in April. She and the school felt strongly that provision should be approved for when K was able to engage with it, as and when her mental health improves. The officer Ms X had met in April had now gone off sick and the Council seemed unaware of the basis of the provision plan.
34. Ms X’s private SALT asked the Council if there was funding for her to deliver some sessions to K while the Council is organising the new assessments. On 19 September, the Council told Ms X that this could not be agreed until the school had asked the NHS to do the assessments because it would involve K switching to an NHS therapist once the assessment was done and this would be too disruptive for her. Ms X contacted the school and it agreed to request assessments from the NHS.
35. The Council told Ms X that the costs of K’s educational package had not been agreed yet as it was not clear what would be required. It has the educational psychologist+’s assessment and will take the case back to the Panel once the school has arranged the OT and SALT assessments. At the same time, the Council contacted the NHS SALT to see if they assess K’s needs, but they did not have capacity to do so. Ms X said she was confused by this, as there was educational and other provision in the EHC Plan and not just SALT and OT. She asked the Council if its position was that if K won’t engage then it will not fund any provision.
36. Meanwhile the Council responded to Ms X’s formal complaint. It said it has reallocated her EHC Plan as the officer was away from the office. Their absence meant that the Council could not address her complaint fully and its priority is to make sure that the funding request is made to the SEND Panel without delay. It will then review her request for backdated funding. Ms X asked the Council to consider the complaint at stage two of its process.
37. At the beginning of October, the Council asked Ms X’s private SALT what would be needed to fulfil the EHC Plan provision. The SALT responded with a proposed plan to deliver SALT beginning in the new year.
38. In October, the Council said that rather than consider Ms X’s complaint at stage two of its process, it could be resolved by a further stage one review. The Council had now gone to its funding Panel and so could respond fully by mid-November.
39. However, the Panel did not agree funding because the school had submitted three different plans for provision, and the educational psychologist had recommended only one hour of tutoring per week. It is not clear that this was communicated to Ms X.
40. At the beginning of November, Ms X asked the Council to meet with her urgently to discuss K’s plan. Ms X chased the Council later that month.
41. The Council met with Ms X at the beginning of December to discuss a way forward. The Council says that it contacted the school then to discuss what provision it was putting in place. It would also consider an increase in SALT provision as requested by the parent’s representative.
42. The Council told Ms X that it had agreed K’s OT and SALT provision with the aim of supporting K to engage with tutoring and it is waiting for K to be ready to try this. K remained on the school roll despite that it could not meet her needs, and it should be able to arrange tutoring and physical activities. It told Ms X that she could apply for a personal budget, and gave her a contact to discuss this.
43. In mid-December, the Council agreed that as the provision was not being made, Ms X could access K's funding as a personal budget and use this to pay for provision. In January 2024 the Council met again with Ms X and it was agreed that K would try to access more provision, starting with one session per week with a tutor from February. The intention was to build this up to more sessions as K feels more able to engage with the tutor. Since then, the Council has met with Ms X regularly to discuss K’s educational provision. However, this provision has meant the Council has not allowed Ms X to access the funding as a personal budget as previously agreed.
44. The Council responded to Ms X’s formal complaint. It said that it was sorry for the delays and acknowledged that it was not acceptable. It said this was due to demand for its service but that it had recruited staff and was working on an improvement plan. The Council said that Ms X could now complain to the Ombudsman.
45. In response to my enquiries, the Council has acknowledged that:
• It did not always communicate properly with Ms X especially between March and November 2023. This was due to staff capacity.
• It did not respond to her request for a personal budget when Ms X requested this in March 2023.
• It did not always keep proper records. It is in the process of updating how it keeps its records and has provided training to all staff on the importance of recording case notes.
• The service is engaged in a large-scale project to improve quality and timeliness, and communication with parents and partner agencies is a key priority. It has also increase staffing to help with the extra workload.

Analysis

46. There was no delay in following the EHC Plan process after the annual review in December 2022. The Council notified Ms X it intended to amend the Plan and issued the draft EHC Plan. It then issued the final Plan within the statutory time frame.
47. However, the Council then needed updated assessments from the Educational Psychologist, the OT and the SALT. It made the referral for the Educational Psychologist. The Council’s does not have detailed case recordings and although it says that it would not have asked Ms X to arrange the OT and SALT assessments, it cannot show what it told the PA to do. Ms X was under the impression that she had to get these and the lack of clarity in the Council’s communications compounded this misunderstanding. This was fault by the Council.
48. The Council later told Ms X that the school should arrange these assessments with the NHS. However, the Council is responsible for the reassessment overall, and the school is only acting on its behalf. The assessments were needed in April 2023, but the Council did not progress this until September, when almost six months had passed, and then there was no capacity to progress this.
49. The school completed an emergency review in July 2023. The Council failed to follow the process to amend the EHC Plan following this. It should have notified the Ms X of its intentions within four weeks of the review meeting and then issued the draft and final plans within 12 weeks (so by 6 October 2023). Instead, the Council has still not issued a final EHC Plan to reflect K’s current needs. It has failed to take control of the process and has mishandled this. This has caused K and Ms X uncertainty, and has also frustrated Ms X’s chance to challenge the provision or appeal the Council’s decision, including its decision not to allow EOTAS.
50. Following the breakdown of K’s online learning, the Council twice took a plan for educational provision to its funding panel. The school developed the plans in consultation with Ms X. However, the Council is responsible for provision and here it failed to make sure that it understood the plans, that they were properly costed and appropriate. This has added to the delay in ensuring K has the provision to meet her needs.
51. The Council told Ms X that there was no funding agreed for K’s provision and as she is still on the school roll, the school is responsible for the provision. However, K has an existing EHC Plan and the Council remains responsible for making sure that provision is made. The Council was fully aware from April 2023, that the online provision had broken down. It did not ensure that the provision in the EHC Plan was made.
52. The Council did not properly consider whether it was possible for K to attend any school, and whether as such, it had a duty to make alternative educational provision.
53. The Council has acknowledged that it failed to consider Ms X’s request for a personal budget so she could arrange the K’s provision.
54. The Council has acknowledged that it failed to keep proper records and this meant that it did not understand the provision plans, it did not monitor progress properly, and it could not respond to Ms X’s complaint to it.
55. The Council’s shortcomings have caused Ms X and K distress, frustration and uncertainty. To some extent, Ms X has been left to try to meet her daughter’s needs, and this has been compounded by the Council’s poor handling of the situation. K missed appropriate educational provision from April 2023 to January 2024 (two terms); she missed some SALT and OT; and still does not have an EHC Plan that reflects her needs. I appreciate that K might not have been able to access a full-time education at times, but she was denied the provision she was entitled to. K risks being disadvantaged by her special educational needs, and so the impact on her in terms of her education and isolation, is likely to be significant.
56. I note that the Council has undertaken a large-scale improvement plan to address some of the faults that Ms X and K have experienced.

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Agreed action

57. The Council will progress the new EHC Plan and consider Ms X’s request for a personal budget as a matter of urgency.
58. Within one month of the date of this decision, the Council will:
• Apologise to Ms X and if appropriate, separately to K. 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.
• Make a symbolic payment of £500 to Ms X in recognition of the distress and uncertainty it has caused her, and the time and trouble she was put to when it failed to communicate with her properly.
• Make a symbolic payment to Ms X of £4,000 (£2,000 per term) in recognition of her daughter’s missed provision. Ms X can use this for the benefit of her daughter as she sees fit.
• Share this decision with relevant staff.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. I have completed my investigation. There was fault causing injustice to Ms X.
61. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman