Summary: Mr X complained the Council failed to arrange suitable education when his child, W, stopped attending school in September 2023. The Council was at fault. This meant W missed out on educational provision, social care support and play therapy they should have had. This affected W’s wellbeing and caused Mr X avoidable frustration, upset and uncertainty. To remedy their injustice, the Council will apologise to Mr X and pay him £2500. The Council will also remind staff about using the children’s statutory complaints procedure and review its systems for arranging provision for children out of school, to minimise delays.

The complaint

1. Mr X complained the Council failed to arrange suitable education when his child, W, stopped attending school in September 2023. Specifically, Mr X said:
• He had asked the Council to arrange Education Otherwise Than At School and another school place for W, but it had not done so;
• The Council had agreed to arrange a tutor as alternative provision but did not;
• The Council had agreed to issue a personal budget for W, which would allow him to commission some education for W directly, but it had delayed;
• The Council said it would arrange support from a play therapy service but had not; and
• The Council failed to send him a copy of W’s draft amended Education Health and Care (EHC) Plan before issuing the final version in February 2024.
2. Mr X also complained the Council failed to deliver a social care package it had agreed for W.
3. Mr X said this meant W missed out and that he and his partner had to provide 2:1 support which caused significant pressure on them and impacted W’s sibling.

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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. 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.
7. 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)
8. 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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How I considered this complaint

9. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
10. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care 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.
12. The EHC Plan is set out in sections which include:
• Section F: the special educational provision needed by the child or the young person;
• Section I: the school or type of school the child or young person will attend; and
• Section J: details of any personal budget required to fund the provision in the EHC Plan.
13. When creating or amending a child’s EHC Plan, the council decides which school the child should attend. Parents can request the council name their preferred school in section I. Where that school is a maintained setting, councils can only refuse to name it in section I in the following circumstances:
• The setting is unsuitable for the age, ability, aptitude or special educational needs (SEN) of your child or young person;
• The attendance of your child or young person would be incompatible with the provision of efficient education for others, or
• The attendance of your child or young person would be incompatible with the efficient use of resources.
14. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal. Parents can appeal to the SEND Tribunal if they disagree with the special educational provision or the setting named in their child’s EHC Plan.
15. 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)
16. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

EHC Plan reviews

17. 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) 
18. If a council decides to amend a child’s EHC Plan, they must first issue a draft to the child’s parent and school for comment.

Special educational provision and personal budgets

19. 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)  
20. 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.

Education Otherwise Than At School (EOTAS)

21. EOTAS is a form of education delivered to children and young people outside of a school setting. It is only for children who cannot receive education in any school setting. If a child has an EHC Plan and their council decides they should receive EOTAS, it amends section F of the EHC Plan to state the special educational provision will be delivered through EOTAS.

Child in need

22. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need. When a council assesses a child as being in need, it supports them through a child in need plan.
23. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

The children’s statutory complaints procedure

24. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services, including services provided to children in need. This is the children’s statutory complaints procedure. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. We also published practitioner guidance on the procedures, setting out our expectations.
25. The procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns.
26. Where a complaint contains elements which come under the statutory procedure and elements which do not, councils should consider whether to incorporate them into a single investigation. Our expectation is that this single investigation would be carried out under the statutory procedure. If councils decide not to carry out a single investigation, they should ensure they still respond to the non-statutory elements (e.g. using the corporate complaints procedure) or explain why they will not respond to those elements.

What happened

27. This section sets out the key events in this case and is not intended to be a detailed chronology.

Education

28. W attended a specialist school (school A) for several years, with an EHC Plan in place. In September 2023 at the start of their final year of primary school, W did not return to school A. Mr X said this was because school A could not meet W’s physical or mental needs and because it was unsafe.
29. The Council became aware of Mr X’s concerns in mid-September and advised him to complain to school A, which he did. It also asked Mr X to consider mediation with the school. Around the same time, school A completed an external safeguarding audit and the school’s board of governors looked into Mr X’s concerns.
30. In late September 2023, Mr X declined mediation. He told the Council he wanted W to go to a new school. The Council consulted with a maintained special school Mr X preferred (school B).
31. The Council spoke to school A, which said it had tried to rebuild its relationship with Mr X. It said:
• W could return to school; it was confident they would be able to manage transitioning back into class; or
• It could fund a specialist teacher to tutor W at home.
32. The Council discussed the options with W’s parents but they did not accept either. In mid-October 2023, Mr X told the Council he could not trust school A so W would remain at home. He said he wanted to discuss alternative schools, EOTAS, a personal budget and education in the meantime.
33. The Council considered the outcome of Mr X’s complaint to school A, the governors’ investigation and the safeguarding audit, which did not identify any concerns. The Council concluded school A was still suitable for W and that they could and should attend.
34. The Council held W’s annual review meeting in late November 2023. The meeting notes show:
• School A felt W was making expected or above expected progress on the outcomes in their EHC Plan;
• W’s parents felt school A had not met W’s needs since 2017 and was unsafe;
• School A was still willing to welcome W back into class and the Council supported the placement; and
• The Council suggested again that W’s parents accept the offer of a specialist teacher to tutor W at home. W’s parents agreed to this. The Council agreed it would find a tutor and refer W to a service that delivered support framed around play.
35. Following the meeting, the Council decided to amend W’s EHC Plan. The Council made the referral to the play service and began contacting tuition companies in mid-December 2023.
36. In January 2024, a specialist tuition provider the Council had contacted said it could tutor W. However, Mr X wanted the tutor to provide personal care for W as well as teach, so the provider withdrew its offer.
37. Mr X told the Council about the cancellation and asked what would happen next. The Council responded the same day to say Mr X had asked for a tutor but was now expecting personal care for W from the tutor, which was likely impossible. It said it would look at other options for W. Mr X said the Council had told him the tutor would be able to do personal care, which the Council disputed.
38. The Council issued W’s final amended EHC Plan in mid-February 2024. Mr X says the Council never sent him a draft version of the Plan. The final Plan named school A and then a secondary school (school C) from September 2024 onwards. Mr X was happy with W attending school C. The Plan included the following special educational provision.
• W would have a modified and differentiated curriculum.
• Staff would use objects, symbols, signing and speech to help W develop their communication skills daily.
• W to have access to interventions based on Speech and Language Therapy (SALT) advice.
• W would have opportunities to practice interaction skills.
• W would have access to a safe space or preferred activity to help when they became distressed.
• Staff would use daily activities to introduce new sensory experiences to manage W’s sensory challenges.
39. Mr X was unhappy with the content of the final EHC Plan and asked the Council to make changes. He had a meeting with the Council in mid-February where it discussed providing a personal budget for W and giving direct payments so Mr X could commission education for W. The Council also said once it had updated section F of W’s EHC Plan to Mr X’s satisfaction, it would consider what education to provide for the remainder of the school year.
40. In mid-March, the Council asked if Mr X still wanted a personal budget for W. Mr X said he did. Mr X and the Council also talked about online tuition in late April.
41. In mid-May, the Council contacted a tuition service (provider D) to tutor W until the end of August. It also told Mr X it would pay him £160 per month in direct payments so he could fund activities for W which would deliver the provision in their EHC Plan that would not be provided as part of the tuition. It confirmed the payments would run until the end of August to make up for the provision W had missed.
42. In mid-June 2024, the Council told Mr X it had chased provider D but was unable to get a response. Mr X disputed this and said either way, provider D did not provide home tuition which was what W needed. The Council told Mr X its normal tuition providers were unable to support W. It said it wanted to discuss increasing W’s personal budget to fund other activities W could benefit from until September 2024. Mr X said that given the Council had been unable to find a tutor, it was unlikely he would be able to find one himself.
43. The Council issued a new EHC Plan in late June 2024. It continued to name school A and school C from September 2024, and included the £160 per month in section J. The special educational provision contained much of the provision in the February 2024 EHC Plan but also included some new support:
• Strategies to help W develop their communication skills and understanding.
• Approaches to help staff communicate with W and understand their non-verbal communication.
• Ongoing focus on developing W’s numeracy and literacy skills using appropriate strategies.
• Adaptations to help W focus and engage in learning.
• Use of approaches to help W understand social situations.
• Development of a sensory profile to understand and manage W’s sensory needs.
• A programme to build W’s independence skills including around toileting, self-care and table manners.
44. In July 2024, Mr X complained to the Council. It responded at stages one and two of its corporate complaints procedure.
45. The Council emailed Mr X a few days later. It said it was willing to look again at increasing W’s direct payments if Mr X thought there were additional activities W would benefit from.
46. At the end of the month, the Council made the first payment of W’s education direct payments.
47. W began attending school C in September 2024.

Social care

48. The Council decided W was a child in need and that they needed a social care package of six hours per week in school term time and twelve hours per week during holidays. Initially, the hours were going to be delivered by a local charity. W had an introductory session with the charity in August 2023 but by late October, the charity had not yet confirmed a start date.
49. As a result, W’s parents asked the Council for direct payments instead, so they could commission W’s support themselves. The Council made a referral for direct payments for W’s social care package in mid-November 2023. In late January 2024, Mr X told the Council he had identified a personal assistant who could deliver W’s package.
50. However, their Disclosure and Barring Service (DBS) checks were delayed and only returned in early May 2024. The personal assistant started working with W shortly afterwards.

Findings

Education

51. The Ombudsman cannot question a council’s decision if it was made without fault. The Council originally met its duty to secure the special educational provision in W’s EHC Plan through school A. When W did not return to school in September 2023, the Council considered Mr X’s concerns, the view of the school and the outcome of Mr X’s complaint, the safeguarding audit and governor’s investigation. It concluded school A remained suitable for W. That was the Council’s decision to make, and there was no fault in how it came to that conclusion so I cannot question it.
52. Despite concluding W had a suitable placement at school A, the Council agreed to find a tutor for W in late November. It identified a suitable specialist tuition company in January 2024. However, the provider withdrew their offer when it became clear Mr X wanted the tutor to provide personal care and teach W. Mr X says the Council had told him the tutor it found would also provide personal care. The Council disputes that. Given the differing accounts and lack of written evidence, I cannot say, even on balance, what the Council told Mr X about finding a tutor who would do personal care.
53. After the tutor company withdrew its offer, the Council said it would look at other education options for W. It discussed a personal budget for direct payments repeatedly with Mr X until it began making the payments in July 2024. It also started looking for a tutor again in April but was unable to arrange a suitable one before the end of the school year. Overall, the Council delayed progressing arranging alternative provision for W, between February and July 2024, which was fault. The fault caused Mr X frustration and meant W missed out on provision they should have had.
54. In mid-June 2024, the Council told Mr X it wanted to discuss increasing the direct payments to support other activities given it had been unable to source a tutor. In response, Mr X told the Council he was not sure how increased payments would work, as he was unlikely to find a tutor given the Council’s efforts had failed. The Council offered again to consider increasing W’s direct payments in July 2023, if Mr X thought there were additional activities W could do over the summer holidays. Mr X did not identify suitable extra activities for the Council to consider funding. The Council was not at fault for not increasing the direct payment amount for the summer period.

Play services

55. The Council agreed to arrange support for W through a play service in late November 2023. By September 2024, the end of the period I have investigated, the service had not begun supporting W. The Council did not take any action to arrange the support beyond making the referral. This was insufficient; the Council should have chased up the referral and considered arranging the support directly when it became clear W would not receive the support imminently. This was fault and mean W missed out.

Draft EHC Plan

56. Councils must share draft amended EHC Plans with a child or young person’s parent before making any amendments. The Council did not share a copy of W’s draft amended EHC Plan with Mr X following the November 2023 annual review and before it issued the final amended Plan in February 2024. This was fault and caused Mr X frustration and upset.

Consultations with school B

57. The Ombudsman cannot investigate complaints where the person had a right of appeal to a tribunal and it was reasonable for them to have used that right. However, I have chosen to investigate Mr X’s complaint about the Council’s consultation with school B. Mr X had a right of appeal to the SEND Tribunal to challenge the Council’s decision to name school A as W’s primary school in their February 2024 and June 2024 EHC Plans but it would not have been reasonable for him to appeal that decision. That is because the SEND Tribunal currently has a wait time of over a year for an appeal to be heard. Mr X’s appeal would not have been heard before W moved to school C.
58. When W stopped attending school A, Mr X asked the Council to consult with school B to see if W could attend there for the remainder of the school year. School B was a maintained special school so the Council had to name it unless certain conditions applied.
59. The Council sent school B a consultation in late September, but I have seen no record it obtained a response or evidence of how the Council considered any response. This was fault and meant Mr X is left with uncertainty about whether the Council might have named school B in W’s February 2024 EHC Plan, had the fault not occurred.

Education Otherwise Than At School

60. I cannot investigate Mr X’s complaint that the Council did not act on his request for EOTAS. This is because EOTAS is for children who cannot attend any school. W’s February 2024 and June 2024 EHC Plans named school C from September 2024. If Mr X felt W could not attend school C or any other schools, then it was reasonable for him to have appealed to the SEND Tribunal to have the schools removed from section I and EOTAS included in section F. In any event, I note Mr X was happy with W attending school C from September 2024 and W is now settled there.

Social care

61. Councils must use the children’s statutory complaints procedure to respond to complaints about its services for children in need. The Council decided W needed a social care package as a child in need. It therefore had to use the statutory procedure to respond to Mr X’s complaint about the package. When the Council received Mr X’s complaint, it should have considered whether to include the elements relating to W’s education in the statutory complaint or address them separately. The Council did not do this; it answered Mr X’s entire complaint using its corporate complaints procedure. This was fault. It meant Mr X missed out on having his complaint considered by the more thorough statutory procedure which caused him further frustration.
62. We would not normally consider complaints which should have gone through the children’s statutory complaints procedure; we typically recommend councils respond to those complaints again using the procedure. However, in this case, I decided to consider Mr X’s complaint about W’s social care package. That is because it is a small part of Mr X’s complaint to the Ombudsman, and it would be unfairly burdensome to ask Mr X go through another council complaints procedure before returning to us.
63. The Council decided to deliver W’s social care package through a charity. Despite having an introductory meeting in August 2023, the sessions had not begun by September 2023; the start of the period I have investigated. Because of this, the Council agreed to pay Mr X direct payments so he could commission the package directly. The sessions began in May 2024. Some of that period of delay in arranging the package was not down to Council fault. It took between January and May 2024 for Mr X’s preferred personal assistant to obtain DBS clearance and Mr X also needed to sign and return the direct payment forms. However, the period between September 2023 and January 2024 was fault, which meant W missed out on needed support and put additional pressure on Mr X.

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Action

64. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mr X for the frustration, uncertainty and upset he felt due to the faults set out in this decision and for the additional pressure he experienced because of the Council’s failure to deliver the social care package between September 2023 and January 2024. 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 the apology.
2. Pay Mr X £500 in recognition of his injustice.
3. Pay Mr X £2000 in recognition of W’s injustice, caused by the delayed direct payments, lack of play service support and missing social care support. I have come to this amount with reference to the Ombudsman’s guidance on remedies and taking into account W’s age, stage in education the provision in their February and June 2024 EHC Plans and what their social care package consisted of.
4. Explain to staff in its education service that if a complaint includes elements which come under the children’s statutory complaints procedure, the Council must use the procedure to address those elements and should consider whether to include the non-statutory elements in the statutory complaint investigation.
65. Within three months of the date of my final decision, the Council will review the systems it has in place to ensure it follows up on provision it is arranging for children out of education, to minimise delay and ensure referrals are acted upon.
66. The Council will provide us with evidence it has complied with the above actions.

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Decision

67. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman