Summary: The Council failed to provide J with suitable full-time education and delayed making the specialist provision set out in his Education, Health and Care plan when his school placement ended. The Council also failed to follow the statutory guidance when it refused Mr and Mrs B’s request for a personal budget. We have recommended and the Council has agreed to apologise, make a payment and take action to prevent similar failings in future.

The complaint

1. Mr and Mrs B complain that the Council failed to:
• provide their son, J, with full-time alternative education when his school placement ended;
• make the specialist provision set out in J’s Education, Health and Care (EHC) plan; and
• follow the SEND Code of Practice when it refused their request for a personal budget.
2. Mr and Mrs B say that the Council’s failings have resulted in J missing out on education and they have suffered distress trying to get the Council to provide the education he needs. They say that the family have also lost income because Mrs B has had to stop working and Mr B has had to reduce his working hours to look after J.

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What I have investigated

3. I have investigated Mr and Mrs B’s complaints about the Council’s decision to refuse their request for a personal budget and it not providing J with the specialist provision set out in his EHC plan. I have not investigated some of the period which Mr and Mrs B say that J did not receive suitable full-time education for the reasons explained in the last section of this statement.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. We have no jurisdiction where a parent has appealed to the Tribunal to investigate events from the date the SEN appeal right arises until the appeal is completed. Any loss of education or fault during this period which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
9. If we are satisfied with a council’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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

11. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• gave the Council and the complainants the opportunity to comment on my draft decision and considered all submissions received.

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What I found

Relevant law and government guidance

Education, Health and Care plans

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place.
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan.
14. The Coronavirus Act 2020 temporarily amended the absolute duty to make the provision in an EHC plan, to a duty to use ‘reasonable endeavours’. This change was applicable from 1 May to 31 July 2020.

Personal budgets

15. A Personal Budget is an amount of money identified by a council to deliver provision set out in an EHC plan where the parent or young person is involved in securing that provision. (SEND Code of Practice, paragraph 9.95)
16. Councils must provide information on Personal Budgets as part of the Local Offer. This should include a policy on Personal Budgets that sets out a description of the services across education, health and social care that currently lend themselves to the use of Personal Budgets, how that funding will be made available, and clear and simple statements of eligibility criteria and the decision-making processes. (SEND Code of Practice, paragraph 9.96)
17. Councils must consider each request for a Personal Budget on its individual merits and prepare a Personal Budget in each case unless the sum is part of a larger amount and disaggregation of the funds for the Personal Budget:
• would have an adverse impact on services provided or arranged by the local authority for other EHC plan holders, or
• where it should not be an efficient use of the local authority’s resources

In these circumstances, the local authority should inform the child’s parent or the young person of the reasons it is unable to identify a sum of money and work with them to ensure that services are personalised through other means. (SEND Code of Practice, paragraph 9.106)

18. One of the ways a personal budget can be delivered is by direct payments, where individuals receive the cash to contract, purchase and manage services themselves.
19. Where a request for direct payments has been made, a local authority must consider that request. (The Special Educational Needs (Personal Budgets) Regulations 2014, section 4)
20. A local authority may only make direct payments where a request has been made for direct payments to be made and the authority is satisfied that:

1. the recipient will use them to secure the agreed provision in an appropriate way;
2. where the recipient is the child's parent or a nominee, that person will act in the best interests of the child or the young person when securing the proposed agreed provision;
3. the direct payments will not have an adverse impact on other services which the local authority provides or arranges for children and young people with an EHC plan which the authority maintains; and
4. securing the proposed agreed provision by direct payments is an efficient use of the authority's resources. (The Special Educational Needs (Personal Budgets) Regulations 2014, section 6)

21. If the local authority refuses a request for a direct payment for special educational provision, the local authority must set out their reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision. (SEND Code of Practice, paragraph 9.107)

Education provision

22. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
23. The Coronavirus Act temporarily removed this duty where the school or year group concerned was given a directive to close. (Coronavirus Act 2020, schedule 16)
24. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
25. The alternative education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

Overview

26. J is 16 years old and has special educational needs.
27. J attended a specialist school for children with autism. A crisis meeting was held in February 2020 after J received two school exclusions. It was agreed that the school would provide J with education at home, whilst it appointed a new teacher. The plan was for J to return to school after the Easter holidays.
28. The school closed on 20 March 2020 due to Covid-19.
29. After the Easter holidays, Mrs B asked the school if J could return but it decided the risk to J and staff was high and a return would not be in his best interests. Instead, it offered to provide residential respite twice a week.
30. Around two weeks later, on 7 May 2020, there was a review of J’s EHC plan. The school decided it was unable to meet J’s needs and it gave six weeks’ notice to end the placement. The review records show that the school agreed to provide a support plan of continued respite care and home/school activity packs while an alternative placement was found. It also offered to provide outreach work in the home setting, if appropriate and in accordance with Government Covid-19 guidelines.
31. Mr and Mrs B asked the Council if it would provide a personal budget so that they could source and deliver some of the provision in J’s EHC plan themselves. The Council refused their request.
32. Mr and Mrs B complained to the Council about its decision to refuse the personal budget and the way the placement ended. They considered the school should have excluded J because then the Council would have had a duty to provide him with full-time alternative education. Mr and Mrs B said the school had not been providing J with any education or specialist provision since April 2020 and so it should not rely on it to do so after the placement ended in June.
33. J’s EHC plan was updated and the final plan was issued on 12 August 2020. The plan did not name a school; it said that J would be accessing bespoke education other than at school while awaiting a placement.
34. The Council provided some alternative education from September 2020, but Mr and Mrs B say it is not full-time and does not include all the provision set out in J’s plan.
35. Mr and Mrs B appealed to the SEND Tribunal in around October 2020. They appealed the sections of the EHC plan which detailed J’s special educational needs, the provision required to meet those needs and the educational placement.

Analysis

Personal budget

36. A Special Education panel considered Mr and Mrs B’s request for a personal budget on 6 July 2020. The Council told Mr and Mrs B that the panel did not support a Personal Budget given the evidence from Disabled Children & Young People (DCYP) Social Care Team and Learning Disabilities Children & Adolescent Mental Health Service (LD CAMHS).
37. The Council did not properly explain why it refused Mr and Mrs B’s request for a personal budget and did not tell them that they had a right to request a review of the decision. This was fault.
38. Despite the Council not informing Mr and Mrs B of their right, they did request a review of the decision. The decision was reviewed by the Special Education Panel and Complex Case Panel. Senior managers in Education, Health and Social Care agreed with the Special Education Panel’s decision not to agree the Personal Budget based on the LD CAMHS and DCYP Social Care Team risk assessments.
39. As explained in paragraph 17, there are few exceptions to the Council’s duty to prepare a personal budget. The Council has not suggested that these exceptions apply here. I therefore consider the Council had a duty to prepare a personal budget. It did not do so; this was fault.
40. A council can only make direct payments if it is satisfied that the recipient will use them to secure the agreed provision in an appropriate way. The Council had concerns about Mr and Mrs B delivering the provision themselves. It was entitled to decide to refuse Mr and Mrs B’s request for direct payments, but it should have properly explained its reasons. It did not do so; this was fault.

Education provision

41. It had been agreed that J would return to school after Easter, but he did not do so due to Covid-19. As explained in paragraph 23, the Coronavirus Act temporarily removed councils’ duty to arrange alternative education where a school had been issued a directive to close, as was the case here. The Council therefore did not have a duty to provide any alternative education when J was not attending school between Easter and the placement ending on 18 June 2020.
42. The reason for J not attending school after the placement ended was not due to Covid-19 and the school closure, and so the temporary removal of the Council’s duty to arrange alternative education no longer applied. The Council therefore had a duty to arrange for the provision of suitable full-time education for J from 18 June 2020.
43. The Council says it made a referral to an alternative education provider in June 2020, who offered virtual learning to J in June and July 2020. Mr and Mrs B say that alternative education was not offered until September 2020. On the balance of probabilities and on the evidence I have seen, I do not consider any alternative education was offered before September 2020. The Council failed to comply with its duty to arrange for the provision of suitable full-time education for the last month of the summer term 2020.
44. I cannot consider any loss of education after August 2020 for the reasons explained in the last section of this statement.

Specialist provision

45. As explained in paragraph 14, the Coronavirus Act 2020 temporarily amended the absolute duty for councils to make the provision in an EHC plan, to a duty to use ‘reasonable endeavours’. This change was applicable from 1 May to 31 July 2020.
46. The Council therefore had to use reasonable endeavours to make the provision in J’s EHC plan between 1 May and 31 July 2020 and had an absolute duty to make the provision after 31 July 2020.
47. Until 18 June 2020, J had a place at a school which had agreed to provide the specialist provision in his plan. I have seen no evidence to show that the Council tried to put any specialist provision in place between June 2020, when the placement ended, and September 2020. This was fault.
48. From September 2020, the Council arranged some bespoke education which was not at a school while it was trying to find a placement which could meet J’s needs. J received most of the provision set out in his plan from September 2020.
49. However, there were delays in making some of the provision. J should have received six 30-minute sessions per term with a Speech and Language Therapist and he should have received termly monitoring by an Occupational Therapist in relation to his sensory diet. The Speech and Language Therapy was not put in place until October 2020 and an Occupational Therapist did not complete a sensory assessment until December 2020. I consider the Council delayed making the provision set out in J’s EHC plan. This was fault.

Injustice

50. The Council’s failings in this case resulted in J receiving no education or specialist provision for the last month of the summer term 2020, and some loss of provision between September and December 2020. The Council’s failings will also have caused Mr and Mrs B distress and put them to avoidable time and trouble.
51. I do not consider Mrs B had to stop work and Mr B had to reduce his hours as a result of the failings identified in this case. This is because J had not been attending school for around four months before the Council failed to provide alternative education for the last month of the summer term.

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Agreed action

52. To remedy the injustice caused by the fault identified in this case, the Council has agreed within four weeks to:
• Apologise to Mr and Mrs B for the failings identified in this case.
• Make a payment of £800 to Mr and Mrs B for its failure to provide suitable full-time education, or any specialist provision, for the last month of the summer term and for its subsequent delay in making all the provision set out in J’s EHC plan. The money should be spent on something which will benefit J’s education.
• Make a payment of £200 to Mr and Mrs B to recognise their distress and the time and trouble they have been put to pursuing their complaint.
53. Within eight weeks, the Council has agreed to reviews its procedures for dealing with requests for personal budgets and direct payments to ensure it accords with statutory guidance and that it properly explains the reasons for its decisions.
54. The Council should provide this office with evidence it has complied with all these recommendations.

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Final decision

55. The Council was at fault. The actions it has agreed will be sufficient to remedy the injustice caused by its failings.

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Parts of the complaint that I did not investigate

56. As explained in paragraph eight, we cannot investigate matters which have been appealed to a tribunal or are inextricably linked to the matters which were under appeal. Any loss of education or fault from the date the appeal right arose until the appeal was completed which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied. For this reason, I have not investigated Mr and Mrs B’s complaint that the Council failed to provide suitable full-time education after August 2020, when Mr and Mrs B had the right to appeal to the SEND tribunal.

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Investigator's decision on behalf of the Ombudsman