Summary: There was fault by the Council in failing to consider alternative education when a child was unable to attend school on health grounds, and delay in securing special educational provision in an Education, Health and Care (EHC) Plan. This caused loss of education and distress. The Council has agreed to apologise, make a symbolic financial payment and make service improvements.

The complaint

1. Ms X complains the Council:

• Refused a request for statutory assessment in Autumn 2023 and then reversed this four months later, causing delay.
• Failed to consider a request for Occupational Therapy (OT) assessment / advice under SEND Regulation 6(1)(h) “advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from” and failed to provide a decision in response to the request.
• Failed to provide alternative education under s.19 Education Act 1996 when Ms X’s child was unable to attend school from Spring / Summer 2023 until December 2024.
• Failed to provide special educational provision under s.42 Children and Families Act 2014 after issue of a first EHC Plan in May 2024 until December 2024.
• Named a school as the setting in the EHC Plan which was unsuitable.
• Delayed in providing direct payments for Education Otherwise than at School (EOTAS) under s.61 Children and Families Act 2014.

2. Ms X says because of the alleged fault:

• They have been put to unnecessary delay, inconvenience, expense, time and trouble including arranging their own provision.
• Her child missed out on twenty months of education.
• She had to fund a private occupational therapy report.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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.
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. 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.
8. 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. 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.
9. 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;
• 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 an 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.  

10. 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.
11. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
12. 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(1), as amended)

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How I considered this complaint

13. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
15. 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

Relevant law and guidance

Alternative provision (s.19 education)

16. 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. 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)
18. 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
19. 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

20. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

EHC Needs assessments

21. A child or young person with special educational needs may have an 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. 
22. 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 Special Educational Needs and Disability (SEND) Regulations 2014.
23. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

24. Those consulted have a maximum of six weeks to provide the advice. 
25. The council may decide to seek additional advice, for example from a therapist, or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

Appeals and mediation

26. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment;
• 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 in their EHC Plan;
• amendment to these elements of an EHC Plan.

27. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal.

Maintaining EHC Plans

28. 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).

Education otherwise than at school (s.61 Children and Families Act 2014)

29.  A Council or the Tribunal may determine it is necessary for a pupil with an EHC Plan to receive some, or all, of the special educational provision set out in their Plan otherwise than in a school or post-16 institution (Section 61 of the Children and Families Act 2014). Councils can only use their s.61 power where satisfied it would be ‘inappropriate’ for provision to be made in any school, not just a specific school. The Council is fully responsible for securing provision under s.61 in the same way as a school placement named in an EHC Plan.

Personal budgets for special educational provision

30. A Personal Budget is the amount of money the council has identified it needs to pay to secure the special educational provision in an EHC Plan.
31. 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.
32. A child’s parent or the young person has the right to request a Personal Budget and direct payments 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. (Regulation 4, The Special Educational Needs (Personal Budgets) Regulations 2014).
33. A Council may only make direct payments in respect of the special educational provision specified in an EHC plan, and may not make direct payments for the purpose of funding a place at a school or post-16 institution
34. 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.
35. If the council agrees to direct payments it must provide a written notice specifying the goods and services which are to be secured by direct payments, the proposed amount of direct payments, any conditions on how direct payments may be spent, and the dates for payments into the bank account approved by the Council (Regulation 8).
36. A council may not make direct payments in respect of any goods or services which are to be used or provided in a school without the written consent of the head teacher.

What happened

37. Ms X’s child stopped attending their mainstream school at Easter 2023. Ms X’s child was awaiting assessments for autism and ADHD. Ms X says her child had struggled with school since starting secondary education and in her view needed a special school place. Ms X communicated with the school about attendance and exploring alternative provision.
38. Ms X contacted the Council in Summer 2023 explaining the school had not provided alternative education since Easter. The Council’s Children Missing Education Officer attended a meeting. At that time Ms X’s child wanted to try a return to school in September. Unfortunately, they managed to attend only three days.
39. In September Ms X made a parent request for an EHC needs assessment. The Council refused this on the basis Ms X’s child had had good attendance and was achieving academically up to their recent absence. The Panel advised the school should use its delegated budget for special educational needs (SEN) provision and reach out to professionals for support for a return to school. The Panel stated if this was not successful it would reconsider the case.
40. The Council’s educational psychologist assessed Ms X’s child in early 2024 and advised it unlikely they would return to school imminently.
41. Ms X asked to mediate before lodging an appeal against the refusal to assess. Mediation was arranged but, after a senior officer review, the Council overturned its previous decision, so mediation was not needed. The records do not explain why the Council changed its decision.
42. I have seen evidence that as part of the EHC needs assessment the Council sought advice from Child and Adolescent Mental Health Services (CAMHS) and NHS Occupational Therapy (OT) in February 2024. The Council was advised Ms X’s child was currently on waiting lists for both services, therefore no advice was currently available. The Council did not seek to arrange its own assessments.
43. The Council did receive advice from other health professionals as part of the EHC needs assessment.
44. The NHS OT saw Ms X’s child in June and CAMHS completed an assessment in July.
45. Ms X obtained her own private OT report in August.
46. The Council issued a final EHC Plan naming the current mainstream school in May 2024, before it received the advice from CAMHS and NHS OT. The Council told Ms X it was issuing the Plan to meet legal timescales, and her expectation was there would continue to be discussion about suitable settings. The school told the Council it did not consider it could meet needs and Ms X’s view was the current school was not suitable. Ms X told me she appealed this Plan. An email in Summer 2024 indicates there was consideration of reintegration into the named school, although the school had concerns about this.
47. In June 2024 the school offered Ms X academic tuition with two companies alongside support from a staff member with the aim of reintegrating into school. Ms X told me she accepted support from the staff member, but declined the tuition, as she did not consider academic provision to be suitable at that time. Ms X suggested alternative providers. Ms X considered her child would only engage with a trusted person who delivered low demand child-led provision. The school explained it would explore Ms X’s suggested providers but would not commission these without first making its own checks and told her it was unlikely these would be completed before the summer holidays.
48. The school again offered its established providers in September 2024. Ms X told the school she had already secured special educational provision that her child was engaging with and the offer from school had come too late. Ms X said her child would not be able to switch provision at short notice or for a temporary period.
49. Ms X told us she attended mediation in Summer 2024, when it was agreed to reconsult a special school of her preference and to put a proposal for Education Otherwise than at School (EOTAS) to the Council’s panel if the school consultation was unsuccessful. Ms X says it was also agreed the Council would consider a personal budget so her child would not be without provision in September.
50. Ms X says a draft amended EHC Plan was produced but this did not include recommendations from all advice received, including private reports and assessments Ms X had commissioned herself. Ms X says the Council’s panel did agree an indicative personal budget of £6000 in late Summer.
51. In October, the Council’s panel formally agreed that Ms X’s child should receive an EOTAS package under s.61 Children and Families Act 2014 in place of a school setting named in the Plan. The Council issued an amended final EHC Plan in early November with EOTAS to be provided via direct payments.
52. The EOTAS budget was considered by the Council’s Panel on three occasions between October and December 2024, with payments starting in late December.

Complaint

53. Ms X raised a formal complaint with the Council in December 2024 that:
• Alternative education was not arranged by the Council from Easter 2023.
• A delay in the EHC needs assessment.
• A failure to respond to requests to obtain OT and CAMHS assessments.
• The Council named an inappropriate mainstream school in the first EHC Plan.
• Poor administration of the Plan, delay, and failure to refer to private reports in the Plan.
• A personal budget of £6000 was not accessible for use.
• Delay in providing direct payments.
54. The Council responded to the complaint at stage one that:
• Education prior to the first EHC Plan was the responsibility of the school.
• A request for a personal budget was initially refused as it was felt the school could make alternative provision and the school offered two tuition companies in June. These were different to those Ms X requested but it was appropriate for the school to use providers of their choosing as it was the commissioner.
• In August 2024 the school confirmed it would not make alternative provision and could not meet Ms X’s child’s needs, so the test for a personal budget was met and an indicative budget of £6000 set. The next step was for Ms X to propose ‘suitable spend for the Panel to consider’. In the meantime, the school named in the EHC Plan remained under a duty to provide education. The school offered tuition while also carrying out checks on Ms X’s preferred providers in September 2024.
• In October 2024 the Council estimated a personal budget of more than £25,000 was required for the EOTAS package.
• There was a delay in processing payment because of the need to seek approval for payments over £1000 and a change in staff. The Council apologised for this delay.
• The Council did not accept a delay in the EHC needs assessment, it met timescales on the basis it considered time stopped between the refusal of the assessment and reversing this decision after the mediation request.
• Ms X’s child had not been open to NHS OT or CAMHS and so the Council had no obligation to seek advice from these services. The Council said an EHC needs assessment did not expedite NHS assessments, which remain subject to NHS waiting lists. The Council had no jurisdiction over NHS lists.
• The Council considered the advice it received was compatible with mainstream education.
• The indicative budget of £6000 was not money available to Ms X to spend but an indication of what the provision in the EHC Plan would cost.
55. Ms X disagreed with the response and asked for the complaint to be considered at stage two. Ms X said the direct payment was delayed again. Ms X asked for reimbursement for private tuition, a remedy for missed education, and reimbursement of a private OT assessment.
56. The Council responded in early 2025 that:
• The school tried to get Ms X’s child to attend and then attempted to put alternative provision in place, however Ms X declined the providers offered. It considered this approach consistent with s.19 duties relating to health needs that children should continue to be educated at school with support.
• The Council became responsible for education only when the EHC Plan was issued in May 2024. It provided funding to the named school which offered its preferred alternative provider.
• A personal budget was subsequently agreed but there was a delay of two months (October to December) before this was paid. A further payment to Ms X was made in February 2025.
• Private provision was commissioned (prior to December 2024) at Ms X’s own expense, and it would not reimburse this. The school had offered tutoring and Ms X had not sought agreement prior to incurring her own costs.

Response to Ombudsman enquiries

57. The Council told me that it did not take any action to secure attendance of Ms X’s child because, while it issued an EHC Plan naming the mainstream school, there was no expectation Ms X’s child would attend at that time. Instead, it asked the school to arrange a package of alternative provision. The Council’s Children Missing Education officer was involved. Subsequently Ms X requested EOTAS via direct payments and this went to case review for a decision whether the legal test for EOTAS was met. Ms X’s child was removed from the school roll in early November 2024 when the EHC Plan was amended and direct payments for EOTAS made in December.

What I have and have not investigated

58. I have investigated the way the Council decided to refuse an EHC needs assessment and then reversed its decision; and the way it conducted the EHC needs assessment, up to the point a final Plan was issued giving Ms X an appeal right.
59. I have not investigated the Council’s decision to name a mainstream setting in the EHC Plan that Ms X considered unsuitable, or the content of the Plan, including how private evidence was used. Ms X has a right of appeal against the content of the Plan, which she told me she used. This places these matters outside our jurisdiction. (Local Government Act 1974, section 26(6)(a), as amended)
60. 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)
61. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) give the Tribunal extensive case management powers, including to direct what evidence they require to decide provision in an EHC Plan.
62. I have exercised discretion to investigate the complaint of missed education from mid-September 2023 when Ms X made a request for statutory assessment. While this is more than twelve months before Ms X complained to us, the Council has considered this period in its own investigation, and the EHC assessment request is a natural starting point for considering the complaint.
63. I have not investigated the alleged lack of education in Spring / Summer 2023. This complaint is too long ago for us to consider. Ms X told me she was unaware of the law around Council duties for alternative education until late 2024, but I find she raised the issue of alternative provision with the Council in Summer 2023. Ms X did not need to know the detail of the law to make a complaint about lack of support. I consider if Ms X was dissatisfied with the Council’s response she should have pursued this nearer the time, not eighteen months later.

Findings

Decision to assess

64. The Council refused the request for assessment in 2023 but then reversed this decision. There was a right of appeal against this decision, but Ms X did not have to use this as the Council agreed to assess before mediation.
65. We consider whether there was fault in the way an organisation made its decision but 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)
66. I have found no fault in the process to refuse the assessment so I cannot question the judgment the Council reached. The Council considered the evidence provided and decided Ms X’s child should attempt reintegration into their current school with the school utilising external professional support which was available without an EHC Plan. It said it would review the case if reintegration was unsuccessful. This was a decision it was entitled to reach.
67. A few months later, it was established that reintegration had failed and the Council’s Educational Psychologist had provided new advice. The Council decided an assessment was now merited.
68. I find no evidence of fault in the way the Council made its decision, but I do note it failed to provide reasons for its change of view to Ms X at the time, which was poor communication.

Therapy advice

69. There is mandatory advice that councils must obtain in an EHC needs assessment (SEND Regulation 6), this includes advice from ‘health’. However, the decision which health professional should provide the advice is ultimately one for the relevant health commissioning body, not the Council (SEND Regulation 6(1)(c)). Unless they are part of a joint authority or joint commissioning arrangements councils cannot usually direct the NHS to carry out an assessment or produce a report.
70. Parents can request additional advice is sought under SEND Regulation 6(1)(h). Councils must consider if this request is reasonable and provide a decision to the parent.
71. Councils have the power (but no duty) to obtain private assessments and reports if they consider they could not write an EHC Plan without this evidence. They could also ask other professionals to cover the issue in their reports.
72. Ms X has told me she appealed the first EHC Plan. Ms X therefore put the content of the Plan into the jurisdiction of the Tribunal. The Ombudsman cannot consider what advice or assessments were needed to inform the Plan, to do so would trespass on the role of the Tribunal as to the adequacy of the EHC Plan. We can only look at administrative faults in the EHC needs assessment process where these be separated from matters put before the Tribunal.
73. I find the Council met the mandatory requirement in SEND Regulation 6(1) to obtain advice from ‘health’; advice was received from two health professionals.
74. Ms X asked the Council to seek additional advice from CAMHS and OT. I have seen evidence the Council did contact both services but was advised no advice was available. Ms X says the Council did not respond to her request. This lack of communication was fault.
75. The Council was correct to tell Ms X it was not obligated to get all the advice she requested and could not direct the NHS to carry out assessments. The Council should have communicated it’s position about CAMHS and OT advice to Ms X during the EHC needs assessment, rather than when it received her complaint.
76. Due to the use of the appeal right I cannot comment further on the advice sought or the contents of the Plan issued.

Alternative provision

77. For the reasons set out above I have investigated the period from September 2023 to December 2024 only.
78. Ms X has told me she appealed the final Plan issued in May 2024. We cannot consider missed education where this is a consequence of a decision that has been appealed, for example where a Council names a school a parent considers unsuitable, the child does not attend, and the parent appeals the choice of school. However, we can investigate where the loss of education can be separated from the appeal, for example because the Council agrees a child cannot attend and accepts a s.19 duty to provide alternative education.
79. The Council was wrong to tell Ms X in the complaint response that the school was solely responsible for her child’s education up to May 2024 as her child did not have an EHC Plan. A Council will owe a s.19 duty to a child if they are unable to attend school due to exclusion, ill-health or otherwise even if they are on a school roll. No EHC Plan is required for the s.19 duty to apply.
80. The Council was involved with Ms X’s child and had knowledge of their non-attendance. The Children Missing Education officer was involved from July 2023, and Ms X had submitted an EHC needs assessment request in September 2023.
81. It was not fault to trial reintegration into school in September 2023, particularly as Ms X’s child had indicated a willingness to do so. However, this was unsuccessful.
82. After the failed reintegration, the Council needed to consider if it owed a s.19 duty, record its decision and communicate this clearly to Ms X. The Council should have worked with Ms X and the school to draw up a plan about attendance, reintegration or alternative provision, reviewing and amending this as necessary. This did not happen and was fault.
83. By early 2024 the Council had advice from its Educational Psychologist that Ms X’s child could not return to school imminently. This should have triggered a further consideration of whether the s.19 duty applied.
84. The EHC needs assessment decision was then reversed and the case put to a specialist panel. Ms X’s child remained out of school. The panel should have questioned why Ms X’s child was not in school, did not have s.19 education, and recommended or referred for appropriate action. Failure to do so was fault.
85. The Council issued a final EHC Plan in May 2024 naming the existing school. Ms X had a right of appeal about this decision, which she told me she used. The decision to name this school is outside our jurisdiction.
86. The Council told me while it named a mainstream school it did not expect Ms X’s child to attend at that time and considered s.19 education was needed, which it asked the school to arrange. On this basis we can consider how the Council dealt with s.19 education even though there was an appeal pending.
87. A Council can delegate funding and commissioning of s.19 education provision to schools, but it cannot delegate the legal duty. The school, as commissioner of the s.19 education, offered two tutoring companies which it had used previously and was satisfied met safeguarding and quality criteria. The school indicated this was to provide ‘core’ education, that is academic tuition. There is no mention of how special educational provision in the EHC Plan was to be delivered.
88. The school was entitled not to use provision suggested by Ms X, which it was not familiar with, and had not checked. The school explained to Ms X making checks would delay the provision of education.
89. The Council’s complaint response explained to Ms X it had rejected her request for a personal budget (by which I believe it means direct payments) at that time because it was satisfied the school could provide a package of alternative provision and there are records to show this was in the context of Ms X’s child being reintegrated into the school. Any funding offered to the school would have been to deliver the core education (via alternative provision under s.19) and the special educational provision (under s.42). Ms X only had a right to request a personal budget or direct payment for the special educational provision, not core education.
90. The Council should have explained to Ms X why none of the special educational provision could be delivered via a direct payment and given a right of review. It did not do so, this was fault. However, I also consider Ms X was confused about the extent of provision that could have be made via a direct payment at that time.
91. I am satisfied an offer of s.19 education was made in June 2024, which Ms X declined, although I acknowledge this was only academic tuition. This met at least some of the Council’s duty under s.19, but the Council also had a duty to secure the special educational provision in the EHC Plan under s.42 Children and Families Act 2014. It is unclear to what extent the tutors would have been able to deliver special educational provision, or whether this was considered.
92. When the school said in August it could not meet needs and would not provide s.19 education the Council said in its view the threshold for a personal budget was met. This is confusing as the requirement to set out the notional personal budget to secure the special educational provision on request had existed since Spring 2024 when the Plan was being drafted. I believe what the Council meant was that the threshold for EOTAS under s.61 was now met (that is that it was not appropriate for some or all of Ms X’s child’s needs to be met in any school). The Council initially advised the notional personal budget to secure an EOTAS package was £6000. It later advised Ms X it was not intended this would be accessible to Ms X, it was simply an indication of the cost.
93. The Council told Ms X the next step was for her to propose ‘suitable spend for the Panel to consider’, but in the meantime, the school named in the EHC Plan remained under a duty to provide education. Again, this is not accurate. If Ms X wanted direct payments for an EOTAS package, then she needed to request this, but it was not for the Council to expect Ms X to use direct payments, which are voluntary. Another option would have been for the Council to commission some, or all, of the EOTAS package itself, which would not have required Ms X to propose ‘suitable spend’. The Council also needed to amend the EHC Plan from a school setting to EOTAS. While the Council decided the threshold for EOTAS was met in August, it did not amend the Plan until November.
94. It was also inaccurate for the Council to maintain the school was responsible for providing alternative education as Ms X’s child remained on roll, for the same reasons as set out above. The legal duty to provide education and special education remained with the Council (s.19 and s.42), not the school. If the school did not arrange this provision, then the Council had to intervene. However, the evidence shows the school did offer tutors again in September 2024.
95. Between October and December 2024 Ms X’s request for direct payments was considered three times. The Plan was changed to EOTAS in early November. Ms X’s child had an entitlement to their EOTAS package from the date the amended Plan was issued. The direct payments were not paid until 20 December, causing delay. This was fault.

Fault

96. In summary, I consider the Council was at fault in:
• Failing to consider s.19 education from when the Autumn 2023 reintegration failed, and subsequently, until June 2024 when s.19 education was offered but declined. I find an offer of s.19 education remained open to Ms X until early November 2024, when her child was removed from the school roll.
• Failed to consider how special educational provision under s.42 Children and Families Act 2014 would be secured between May and December 2024 when the Council agreed Ms X’s child was unable to attend school. It is not clear whether the providers offered would have been able to deliver some, or all, of the special educational provision. This uncertainty is an injustice.
• Failed to secure any education or special educational provision between early November and December 2024 when an amended EHC Plan was in force, the place at school withdrawn, but no provision was available.
97. I have not found a basis to recommend reimbursement of Ms X’s privately commissioned education between June and October 2024. This was not provision listed in the EHC Plan as special educational provision. The Council (via the school) had arranged for s.19 education to be provided, which Ms X declined.

Injustice

98. I find:
• The Council failed to communicate effectively with Ms X about some of its decisions during the EHC needs assessment, causing frustration and unnecessary time and trouble, but there is no basis for us to recommend reimbursement of private report costs.
• Due to the failure to consider the s.19 duty, Ms X’s child received no education for a period of two terms.
• There is uncertainty whether s.19 education that was subsequently offered included special educational provision, this uncertainty is an injustice.
• The Council failed to communicate effectively with Ms X about when and how personal budgets were relevant, and when and for what provision direct payments could be sought. This caused unnecessary confusion and distress and perhaps led Ms X to believe she had more say over the education provision than she did.
• There was delay between August and November 2024 in amending the EHC Plan to EOTAS, which delayed when a full package was offered.
• The Council failed to provide any education in November and December 2024.

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Agreed Action

Within four weeks of my final decision:

99. The Council will apologise to Ms X for the faults identified in this decision statement.
100. The Council will pay Ms X £6400 to acknowledge missed education as set out above.
101. The Council will pay Ms X £500 for the distress, frustration, delay and uncertainty caused.

Within two months of my final decision:

102. The Council will review policies and procedures when children are unable to attend school to make sure the council retains sufficient oversight and control, particularly of any outsourced arrangements.
103. The Council will ensure it makes clear decisions, in writing, with reasons, about how it makes decisions about SEN assessments and provision.
104. The Council will ensure staff and policies are clear about when personal budgets and direct payments apply, provide clear information to families, and offer rights of review where appropriate.
105. The Council will provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman