Summary: The Council was at fault when it failed to consult Mr and Mrs X or Miss Y about the changes it was planning to make to her Education, Health and Care Plan. This caused Mr and Mrs X avoidable distress and frustration. The Council agreed to make the recommendations we set out to remedy the injustice its actions caused to Mr and Mrs X.

The complaint

1. Mr and Mrs X complain on behalf of their daughter, Miss Y. They say the Council:
• did not review Miss Y’s Education, Health and Care Plan (EHCP) before March 2020 and in time for her transition between key stages of education;
• poorly managed Miss Y’s annual EHCP annual review, which it held in August 2020;
• poorly communicated with them about the changes it made to Miss Y’s EHCP and about the arrangements it made for her school transport;
• despite agreeing to continue Miss Y’s tutoring and personal budget in August 2020, the Council later decided she should attend school five days a week. It did so without amending her EHCP and even though the school did not have suitably trained tutors to support Miss Y; and
• decided to end Miss Y’s personal budget, that included payments for her tutors and mileage costs for Mr X taking her to school three days a week, without telling Mr and Mrs X of this decision.
2. Mr and Mrs X say that because of this since September 2020 they had to privately pay for tutors. This is even after, in April 2021, the SEND Tribunal said that Miss Y should get six hours a week of home tutoring. They also say this negatively impacted Miss Y, who was happy with how she was educated before the Council decided to change it.
3. They also say the lack of personal budget meant Miss Y had to give up art GCSE as they could not afford to pay for the tuition. Additionally, they had to apply for Miss Y’s school transport which took a long time to complete and did not collect her at the correct times.
4. Mr and Mrs X further add that they have spent avoidable time in chasing the Council for answers about the school transport and about its decision to change Miss Y’s EHCP provision.
5. Mr and Mrs X would like the Council to:
• agree a personal budget for Miss Y so they can pay for her tutors;
• pay back the money they privately spent on tutors for Miss Y; and
• pay them for the avoidable time and trouble they spent in having to complain to the Council and the Ombudsman.

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What I have investigated

6. I have investigated all points of Mr and Mrs X’s complaint, except for:
• the claim the Council did not review Miss Y’s EHCP before March 2020 and in time for her transition between key stages of education; and
• the Council’s actions between December 2020 and May 2021.
7. I explain my reasons for this at the end of this decision statement.

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The Ombudsman’s role and powers

8. 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)
9. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
10. 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)
11. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
12. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
14. The courts have said that where someone has used their right of appeal, the Ombudsman cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
15. 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

16. As part of the investigation, I have:
• considered the complaint and Mr and Mrs X's comments; and
• made enquiries of the Council and considered the comments and documents the Council provided.
17. Mr and Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Background and legislative framework

SEND Tribunal

18. There are time limits within which the Council must comply with the SEND Tribunal’s orders. These time limits are contained in Regulation 44 of the Special Educational Needs and Disability Regulations 2014.
19. Where a SEND Tribunal orders the Council to amend the special educational provision set out in the EHC plan, the Council must issue the amended EHC plan within five weeks of the order being made.

Education. health and care plan (EHCP)

20. An EHCP is for children and young people aged up to 25 who need more support than is available in schools. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
21. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
22. The Council must secure the special educational provision specified in the plan. If a council names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
23. Councils must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
24. The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against council decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.
25. The Court of Appeal case of R (on the application of ER) v Commissioner for Local Administration restricts what we can investigate. It found that if someone has made an appeal to the SEND Tribunal, we cannot investigate any matter which is not separable from the matters under appeal. This means that if a person disagrees with an EHCP annual review outcome, we cannot seek a remedy for a loss of education or any other consequences after the date the right of appeal arose.

EHCP annual review

26. The Annual Review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan.
27. The ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (the Code) is statutory guidance. This means councils must follow the Code when making decisions about children with EHCPs. The Code says: “9.169 The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the Council’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or previous review”.
28. In practice the review covers not just the annual review meeting, but the Council’s decision (to maintain, cease or amend the Plan) following the meeting. Each of these three decisions carries a right of appeal to the SEND Tribunal.
29. The SEN guidance says the Council can amend an EHCP outside of the annual review process if it thinks it is necessary because of the changes in the child’s circumstances.
30. If the Council decides to do this, it must send the young person or their parents a copy of the existing (non-amended) EHCP with a notice detailing the changes it is proposing to make.
31. The parents or the young person must be given 15 days to comment on the proposed changes. If the Council decided to continue with the amendments without the parent’s agreement, it must issue the final amended EHCP as soon as possible, but no later than eight weeks of the original amendment notice.

Personal budgets and direct payments

32. A special educational needs (SEN) personal budget is an amount of money identified by the Council to deliver provision set out in an EHC Plan. The Council can identify elements of the provision which can be made via a direct payment.
33. The SEN guidance says the Council must be satisfied the person receiving the direct payments will use them in an appropriate way.
34. The Special Educational Needs (Personal Budgets) Regulations 2014 (The Regulations) says that when the Council decides to make direct payments it must write to the young person or their carer and agree with them how they will use the direct payments to secure the provision they are destined for.
35. The Regulations also say the Council must monitor and review the use of direct payments by their recipient. During such review, the Council has to decide if:
• it should continue to secure the agreed provision by direct payments;
• the recipient is using the direct payment effectively;
• the recipient has complied with the conditions of the agreement is signed with the Council.
36. As a result of a review of direct payments, the Council may:
• require the recipient to provide information it deems necessary; and
• stop making direct payments.
37. The Council must stop the direct payments if at any point it becomes aware making them is no longer compatible with the Council’s efficient use of its resources. It may stop the direct payments if the recipient has failed to comply with any of the conditions set out in the contract it signed with the Council.

Education otherwise than at school

38. If school or college is not appropriate for the child or young person with an EHCP (for either all or part of their education), councils can arrange for any special educational provision which the child or young person requires to be delivered somewhere other than in a school or college. This is often known as ‘education otherwise than at school’ (EOTAS). The Council is responsible for securing and funding this provision. EOTAS will be named in the EHCP in Section I. There is a right of appeal to the Tribunal about any decision to name (or not name) EOTAS in the EHCP.

What happened

39. Miss Y has special educational needs including a diagnosis of autism spectrum disorder (ASD).
40. In July 2019 the Council issued Miss Y’s first EHCP. This included an EOTAS package that consisted of personal tutors twice a week and provision at School A three times a week. The Council met the cost of personal tutors by a direct payment to Mr and Mrs X.
41. In August 2020 the Council held an annual review of Miss Y’s EHCP. Mr and Mrs X said the review consisted of a single phone conversation during which the Council confirmed that it would not make any changes to Miss Y’s provision. Mr and Mrs X agreed to this.
42. In September 2020 Miss Y started year 11. Mr and Mrs X contacted the Council and asked for the next direct payment as they had paid for some of Miss Y’s tutors out of their own pocket.
43. In response the Council asked Mr and Mrs X to send in invoices for all the payments they made, which they sent in a few days after. On further inspection the Council questioned some of the transfers that were made from the direct payment card to the family bank account. It asked Mr and Mrs X to provide invoices and show how the money was spent. They explained that they used it to pay for Miss Y’s tutors, and provided invoices that accounted for some of the money.
44. The Council realised the tutors Mr and Mrs X were using were not the company that it named in their direct payment agreement. It explained it would have to reapprove the agreement and name the new tutors. However, before this could happen the Council had to calculate if there was any money left over from the last period of direct payments. The Council asked Mr and Mrs X to provide invoices for specific payments that it could not explain. Mr and Mrs X did not provide any further invoices to the Council.
45. Around the same time the Council said it discovered that it would be more efficient for it to pay Miss Y’s tutors directly, as it could then reclaim the VAT.
46. In mid-October 2020 the Council consulted with School A to check if it could meet Miss Y’s SEN needs. Although the Council does not have any records of the conversation that followed, it said that School A confirmed it could meet Miss Y’s needs.
47. In October 2020 the Council emailed Mr and Mrs X and told them that it would not continue Miss Y’s direct payments and she would attend School A five days per week. It also told them the transport arrangements would change after the half-term, and they should apply for school transport for Miss Y. The Council said that it would not continue with the direct payments because it had reconsidered Miss Y’s circumstances. It said that:
• it originally agreed the direct payments for Miss Y as it could not identify a suitable school for her. However, since Miss Y turned 16 this changed. Additionally in January 2020 School A registered as a provider who could take pupils on roll. This meant the Council could now identify a suitable provider to meet Miss Y’s needs;
• it did not want to disrupt Miss Y’s provision part way through her GCSEs. However, after learning that Mr and Mrs X changed Miss Y’s tutors, it decided this would no longer be an obstacle;
• School A could meet Miss Y’s needs and support her with any anxiety she experienced. Mr and Mrs X could discuss this further with School A who were happy to meet and go over their support plan for Miss Y; and
• Mr and Mrs X could request a meeting with the Council to discuss this decision further.
48. Mr and Mrs X were not satisfied with the Council’s decision, and with the lack of notice they and Miss Y received about the upcoming changes. They complained the Council did not ask for Miss Y’s views about the change in her provision. They also told the Council they would appeal the new EHCP to the SEND Tribunal.
49. In November 2020 the Council posted the amendment notice to Mr and Mrs X. In the notice it explained what changes it was going to make to Miss Y’s plan. Mr and Mrs X responded to the Council’s amendment notice and said:
• they thought the Council should keep the same provision in place until it had issued a final amended EHCP;
• before the annual review Miss Y as well as Mr and Mrs X provided their updated views, and the amendments notice did not mention them; and
• they were considering complaining to the Ombudsman about the decision to change Miss Y’s provision.
50. In the same month the Council responded to Mr and Mrs X’s complaint. It said that after it learnt that Mr and Mrs X struggled with finding consistent tutors for Miss Y it consulted School A to check if it could meet her needs. The Council decided that it was in her best interest to have the consistency of the same setting for five days to enable her to move to the next stage of her education.
51. In December 2020 the Council issued Miss Y’s final amended EHCP detailing the new provision. In the same month Mr and Mrs X appealed the contents of the new EHCP to the SEND Tribunal.
52. In February 2021 School A wrote to Mr and Mrs X encouraging them to ensure that Miss Y attended for the five days a week. School A explained that Miss Y would attend a class with only two other pupils, which would give her a lot of individual support that she needed. It also said, that when in school, Miss Y did not display any signs of anxiety and had formed a small friendship support group.
53. Just before the SEND Tribunal made its decision the Council produced a working document of Miss Y’s EHCP. It proposed a similar arrangement to the earlier one - Miss Y was to attend School A on some days, and have six hours per week of 1:1 tuition in English and Maths.
54. The SEND Tribunal heard Mr and Mrs X’s case in April 2021 and agreed the provision listed in the working document was suitable for Miss Y. The SEND Tribunal issued its order in mid May 2021.
55. Towards the end of the May 2021 the Council issued Miss Y’s amended EHC plan showing the changes ordered by the SEND Tribunal.
56. In June the Council wrote to Mr and Mrs X and told them it would pay for Miss Y’s tuition for June and July. The Council implemented the provision ordered by the SEND Tribunal within a couple of weeks from issuing the final amended EHC plan.
57. In June 2021 Mr and Mrs X complained to the Ombudsman.

My analysis

Management of Miss Y’s annual EHCP review in August 2020

58. The Council told us that in August 2020 it held an annual review meeting which both the case officer and Mrs X attended.
59. The Council accepted that it did not send out an intention letter to Mr and Mrs X following the annual review of Miss Y’s EHCP it held in August 2020. This is fault.
60. Between September and October, the Council communicated frequently with Mr and Mrs X about the change in Miss Y’s tutors. The Council also asked them to clarify some of the invoices before approving a new personal budget.
61. In October the Council consulted School A and realised that it could meet Miss Y’s needs. It decided to end Mr and Mrs X’s direct payments, and it told them this in the same month.
62. We consider that the lack of intention notice did not cause a significant injustice to Mr and Mrs X. This is because they were in communication with the Council at the time, and as soon as the Council decided to end their direct payment and amend Miss Y’s EHCP it told them about this.
63. In November the Council used its separate powers to propose to amend the EHCP without a review or reassessment. It then sent an amendment letter to Mr and Mrs X. The Council issued the EHCP within 8 weeks from that date. This is in accordance with the SEN guidance.
64. The Council was entitled to decide to amend Miss Y’s EHCP without a review. We cannot question the merits of a decision that was made without any fault in the decision-making process.
65. The Council asked Miss Y to begin the new provision before it had issued the final EHCP. We would expect Miss Y to continue with the provision she had in place until the Council issued the final EHCP. This would have also allowed Miss Y the transition time she needed, which Mr and Mrs X said was important for her.
66. We consider this has caused the family avoidable distress and uncertainty. I cannot say, even on balance, if the Council should have continued with the direct payments between October and December 2020.
67. This is because the Council was not satisfied that all the direct payments it made to Mr and Mrs X were used as per the direct payments agreement they signed. We consider the Council should have explored other options it had for continuing Miss Y’s provision until it issued her final amended EHCP.

Poor communication about the changes to Miss Y’s EHCP and about school transport

68. The Council has accepted fault in that it did not consult Mr and Mrs X or Miss Y about the changes it was planning to make to her EHCP. This is fault.
69. This has caused avoidable distress and uncertainty to Mr and Mrs X as well as Miss Y as they were unable to formally challenge the arrangements until the Council issued Miss Y’s final amended EHCP.
70. The Council told Mr and Mrs X about the need for a transport application as soon as it decided to end the direct payments to them.
71. The Council said that it would transport Miss Y to school each morning and take her home at the end of the school day.
72. We found no fault in how the Council made this decision. We cannot question the merits of a decision that was made without any fault in the decision-making process.
73. We note that Mr and Mrs X decided not to send Miss Y to School A five days a week, as they disagreed with the Council decision to amend her provision.

Decision to end Miss Y’s direct payments

74. The Council is responsible for administering and monitoring personal budgets, including direct payments.
75. If a council decides to stop a direct payment, it must give the parent / young person reasons in writing. It must also reconsider its decision if the parent or young person asks it to.
76. The Council told Mr and Mrs X that it was going to end their direct payments in September 2020 and in October 2020. It also gave rational reasons for doing this. This is not fault.
77. Mr and Mrs X opposed the Council’s decision, and the Council considered their comments. This shows the Council reconsidered its initial decision not to continue with the direct payments. The Council acted in line with the Regulations, and this is not fault.
78. Mr and Mrs X said the Council’s decision to end their direct payments resulted in Miss Y having to drop Art GCSE as they could no longer afford to pay for the tutor.
79. Mr and Mrs X appealed the contents of the EHCP to the SEND Tribunal. If they felt that Miss Y had a specific need that could be met with the provision of art tutoring, they had an opportunity to bring this to the Tribunal’s attention.

Tutor funding after the Tribunal in April 2021

80. The legislation says the Council should have issued Miss Y’s amended EHC plan within five weeks of the Tribunal’s order; this should have been by the end of June 2021.
81. The Council should use this time to:
• prepare for implementing the provision;
• make the amendments to sections B and F of the EHCP; and
• re-issue the EHCP.
82. The Council issued Miss Y’s amended EHC plan in late May 2021 and secured the ordered provision within two weeks from then. We have found no fault with the Council’s actions.

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Agreed action

83. Within four weeks from the date of my final decision the Council will pay Mr and Mrs X £200 to recognise the distress the Council’s fault has caused the family.

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Final decision

84. There was fault in the Council’s actions which caused Mr and Mrs X and Miss Y an injustice. The Council agreed to my recommendations and my investigation is now complete.

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Parts of the complaint that I did not investigate

85. I did not investigate the claim that the Council did not review Miss Y’s EHC plan before March 2020 and in time for her transition between key stages of education. This is because the key stages of Miss Y’s education are delayed by a year in comparison to her peers.
86. We cannot investigate Mr and Mrs X’s complaint about the Council’s decision to change Miss Y’s provision and the suitability of teaching staff. The Courts have held the Ombudsman cannot investigate the Council’s actions between the date from which Mr and Mrs X had the right to appeal and the date on which the Tribunal issued its decision. There is no discretion available to us on this point.

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Investigator's decision on behalf of the Ombudsman