Summary: Mrs X complained about how the Council arranged and reviewed the special education provision in her daughter, Y’s, Education Health and Care Plan. There was fault in how the Council arranged the support for Y, how it responded to changes Mrs X asked for, and delays following a review in May 2024. This caused Mrs X avoidable frustration, worry and uncertainty, along with some extra financial cost. The Council agreed to apologise, issue an amended final plan and pay Mrs X a financial remedy. It also agreed to review how is arranges education outside school settings and issue reminders to its staff.

The complaint

1. Mrs X complains about how the Council met her daughter, Y’s, special educational needs from September 2023. She says the Council:
• failed to secure all of the special education in her daughter’s education health and care (EHC) plan;
• delayed the first direct payment for some of the support;
• failed to provide speech and language therapy;
• wrongly refused to make changes to Y’s education; and
• failed to follow the correct process after it carried out a review of Y’s EHC plan in May 2024.
2. As a result, Mrs X says Y has not received the support she needs, both she and Y have been caused emotional distress and Mrs X has suffered financial losses.
3. She wants the Council to apologise, listen to Y and provide her with the support she needs. She also wants the Council to pay for the costs of her advocate and her other financial losses.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
8. 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.
9. 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

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
12. 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

Education Health and Care plans

13. 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. 
14. 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)  
15. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. 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 found councils must issue the final amended EHC Plan within a further eight weeks.
17. 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.

What happened

18. Mrs X’s child, Y has special educational needs and has had an EHC Plan from the Council for several years. Y struggled to attend school, due to her mental health and special educational needs, and stopped attending in late 2022.
19. In September 2023, the Council issued an amended final EHC Plan for Y. This said Y should receive a package of tailored education outside school, overseen by a “programme coordinator”, including:
• 15 hours a week mentoring and one-to-one tuition;
• weekly speech and language, and occupational therapy;
• counselling to help with her self-esteem and emotional regulation; and
• small group sessions with other children to help Y develop her social skills.
20. The Council further amended Y’s EHC Plan in October 2023 to include a personal budget for most of the support Y was supposed to receive. Evidence suggests the agreement was for the Council to arrange some of the support, such as the tuition and speech and language therapy, while Mrs X would receive a direct payment for some of the other support, including animal therapy and occupational therapy.
21. In mid-November 2023, officers in the Council’s SEN team tried to resolve some confusion about how the Council was supposed to arrange Y’s tuition. In those emails, the Council’s commissioning team said that Mrs X should only be given a shared email address for the team responsible for arranging Y’s tuition.
22. In March 2024, an advocate wrote to the Council on Mrs X’s behalf. The advocate told the Council:
• Y was struggling to engage with the education arranged for her;
• Mrs X wanted the Council to, instead, arrange a smaller number of hours of art therapy for Y, to help her engage with some provision.
23. Mrs X complained to the Council in April 2024, about the Council’s refusal to agree to her request. She explained that she was not asking for extra provision for Y, instead she was asking the Council to arrange fewer hours with a different provider. Mrs X also set out, in detail, why she believed her request would help Y.
24. In its response to her complaint, the Council explained it had considered Mrs X’s request and decided that, since Y was no engaging with the education it had already tried to arrange, it did not consider it appropriate to arrange extra hours of art therapy. Instead, it had decided to carry out an emergency review of Y’s EHC plan.
25. The review took place in mid-May 2024. However, the Council does not have any record of that meeting and Mrs X said the Council never sent these to her.
26. Following the meeting, the Council decided that, since Y was not able to engage with her current package of education, it would arrange for a special school to work with Y to develop a plan to help her back into school.
27. However, in June 2024, the Council agreed to arrange the art therapy Mrs X asked for while it was considering amendments to her EHC Plan. This was in response to a further letter from Mrs X’s advocate, who said Mrs X was considering court action about the Council’s decision. The Council says that, since then, Y has stopped engaging with the art therapy.

My findings

28. I am satisfied there was fault in how the Council secured the provision in Y’s September 2023 EHC Plan, and how the Council responded to Mrs X’s requests for changes.
29. The Council had an absolute duty to secure the provision in Y’s EHC Plan from the day it issued that plan. However, evidence from the Council shows that, even in November 2023, the Council had not arranged the mentoring and tuition. This evidence also shows there was confusion within the Council’s SEN team about who was responsible for this.
30. The EHC Plan also said Y would have a programme coordinator responsible for the package. The Council has provided no evidence it arranged that coordinator and when Mrs X asked for details of the person responsible, the Council would not tell her.
31. I am also satisfied, on the balance of probabilities, there was a delay in starting the direct payments for those parts of the personal budget Mrs X was to manage.
32. I am satisfied these delays and confusion caused Mrs X avoidable frustration and worry. However, I do not consider those delays led to Y missing any education. The evidence from the Council and Mrs X is that Y’s ability to engage in education was severely limited, due to her mental health conditions. Y was not able to engage with the tuition the Council later tried to arrange, or with speech and language therapy.
33. When Mrs X asked the Council to reduce Y’s package of mentoring and tuition to a much smaller number of hours of art therapy, I am satisfied the Council misunderstood her request. The evidence shows the Council viewed the request as Mrs X asking for extra provision for Y. However, Mrs X’s requests were, in my view, very clear, that she was asking for different provision, not more.
34. I cannot say, had the Council properly considered Mrs X’s request at the time, whether it would have made any changes to Y’s education in March 2024. The evidence shows the Council was concerned that, if Y could not access the provision in her current EHC Plan, then such a home education package might not be suitable for her. The Council later did agree to Mrs Y’s request, on a limited basis, but this was after Mrs Y’s advocate threatened to take the Council to court. The evidence also suggests the Council agreed to the art therapy, at that time, outside of the normal EHC Plan review process.
35. However, the Council said that Y stopped being able to engage with the art therapy when it later agreed to this. Therefore, on the balance of probabilities, I do not consider the fault in how the Council considered Mrs X request caused Y any injustice. I am satisfied Mrs X was caused avoidable frustration because of how the Council failed to properly understand her request. I am also satisfied the Council’s failure to properly understand Mrs X’s request, led to her paying for further support from her advocate to challenge the Council’s misunderstanding.
36. After the Council held a review of Y’s EHC Plan in May 2024, it did not send Mrs X a record of that meeting, as it was required to do. The Council also did not send Mrs X confirmation of its decision to amend Y’s EHC Plan. However, I am satisfied Mrs X knew this was what the Council was going to do.
37. Since that meeting, the Council has failed to issue a final amended EHC Plan for Y. I accept the Council has been made some effort to engage with Mrs X to agree the content of the plan. However, the law required the Council to issue a final amended EHC Plan for Y by August 2024. Its failure to do so was fault.
38. I am satisfied that delay caused Mrs X further frustration and worry. It also delayed her right to appeal the Council’s decision about what education Y should receive. However, I cannot say what difference the delay made to Y’s education, given her difficulty in taking part in education; this is a remaining uncertainty for Mrs X.

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Action

39. Within one month of my final decision the Council will:
• issue a final amened EHC Plan for Y, following the May 2024 review;
• apologise to Mrs X for the frustration, worry and uncertainty caused by the fault I have found above;
• pay Mrs X £350 to recognise that avoidable distress; and
• reimburse Mrs X £735 for the advocacy costs she paid for writing to the Council in late May 2024.
40. 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.
41. Within three months of my final decision the Council will:
• review how it arranges and coordinates education outside school settings specified in EHC Plans. It should ensure that parents and young people with EHC Plans know who is responsible for arranging and overseeing their education;
• arrange briefings or other suitable training for its SEN staff about how the Council arranges education outside school settings specified in EHC Plans. The Council should ensure this covers how its process works and who is responsible each stage; and
• remind staff responsible for responding to requests for changes in provision that the should take care to understand the nature of the changes being requested, the reasons for this and that they should clarify anything that is still unclear before making decisions.
42. The Council should provide us with evidence it has complied with the above actions.
43. I would normally have made other service improvement recommendations covering the timeliness of issuing amended EHC Plans following reviews. However, the Council agreed to similar recommendations in cases which we decided after the events I have investigated, so I have not repeated those recommendations in this decision.

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Decision

44. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman