Summary: There was no evidence of fault by the Council in ensuring a child received the special educational provision in their Education, Health and Care plan. There was however fault in failing to provide appeal rights after reviews of the Plan. The uncertainty of whether an earlier appeal may have led to additional or different education being provided is an injustice. Recommendations for an apology, financial payment and service improvements are made.

The complaint

1. Ms X complains on behalf of her son, whom I shall refer to as ‘Y’. Y has special educational needs (SEN) and has an Education, Health and Care (EHC) Plan. Ms X complains that:
• Y’s needs have not been met by his secondary schools
• Y has not received all the special educational provision in his EHC plan
• Provision such as 1:1 support and a laptop has been refused on the basis it would cost too much money
• No-one has explained how £6000 of funding for Y’s special educational needs has been spent.
2. Ms X says the Council has let Y down. Y is now 15 and cannot read or write and she does not know how he will be able to get a job or support himself financially as an adult.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. 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)

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How I considered this complaint

9. I have considered information provided by the Council and Ms X including:
• EHC plans and decision letters
• Social care documents
• Documents held by the SEN team including consultation with schools and annual review papers
• Complaint correspondence.
10. I have also spoken to Ms X by telephone.
11. I have considered relevant law and guidance including the Children and Families Act 2014 and associated Regulations and Code of Practice.
12. 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.
13. Ms X and the Council 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

Factual background

14. Y has had an EHC plan since 2016. Updated final versions of the Plan were issued in February 2017 and April 2021.
15. The EHC plan was reviewed in June 2017, June 2018, September 2018, March 2019, October 2019 and November 2020.
16. At the 2017 review it was noted Y was making progress and use of a laptop was helping support his writing and this should continue in secondary school. Y moved to a secondary school (I will call this ‘School A’) in September 2017.
17. At the June 2018 review, School A noted Y had poor attendance and was being taught in a class of 14 students. He was using a laptop. Extra reading and 1:1 maths tuition was offered after school hours, but Ms X had declined his support as she felt due to Y’s physical disabilities a six hour day was enough. Y had been encouraged to join sports activities. School A had ‘serious concerns’ about Y being able to access the curriculum and requested an early review in September as Ms X and Y had not attended this review. School A noted Ms X believed it was receiving £20,000 for Y and she wanted the school to pay for trips, PE kit and additional swimming lessons.
18. In September 2018 a further review meeting was held. A Council SEN officer attended. There was a disagreement between Ms X and School A about physiotherapy. School understood an agreement had been reached that Y would do physiotherapy exercises at home rather than be removed from class as he did not want to come out of lessons, but Ms X said School A had stopped the physiotherapy. The Council said it would arrange for a new physiotherapy assessment and there may be a personal budget available after a new assessment of medical needs depending on the outcome. Ms X wanted Y to do sport outside of school. School A said it had encouraged Y to attend after school clubs but he had declined. Ms X said she wanted support as a carer and the Council’s SEN officer advised her to contact social care. The Council’s outreach service said it would enquire whether a local charity could fund a laptop for Y to use at home. School A felt Y would struggle to access the GCSE curriculum, but Ms X said she wanted Y to remain at School A. The Council’s SEN officer advised this could be discussed at another time. An early interim review was arranged for March 2019.
19. In December 2018 Ms X complained to the Council that she had asked for a personal budget at the previous review and had been told this would be looked into. Ms X said she was told to cancel Y’s physiotherapy when he moved to secondary school, although he had received this weekly at primary. Ms X said one of the reasons she wanted a personal budget was to get Y some physiotherapy or swimming lessons or exercise at after school clubs to help with his physical disability. Ms X said Y cannot physically write so used a laptop in school but was not allowed to bring this home which meant he could not do homework or practise his typing at home. Ms X felt Y was not receiving the level of help he needed as he was working at Year 2 level although he was now in Year 8. Ms X also said Y’s health needs were not properly described in his EHC plan. Ms X wanted a personal budget to purchase home tuition and to support exercise.
20. The Council replied that:
• School A reported Y was making satisfactory progress, was being taught within a small group and had access to a High Level Teaching Assistant and teacher. In addition he had access to 2 hours per week literacy support, as well as extra lessons for reading and maths before and after school which had been declined. The Council’s Physical Disability Support Service (PDSS) visited school and advised on his motor skills. The Council said it would liaise with PDSS for updated information on Y’s needs and progress.
• With regard to Ms X request for a personal budget, the Council was obliged to consider a personal budget but would need to understand the purpose of it. The Council said at the recent review meeting Ms X’s concerns had been about Y’s physical health and a referral had been made by School A to the physiotherapy service.
21. Ms X did not ask for her complaint to go to stage two at that time.
22. In March 2019 an interim review meeting was held. The Council attended. Y’s attendance was still low (he often did not attend on Fridays due to tiredness). School A said this meant the gap between Y and his peers was widening. Ms X said she felt she needed respite but had been told she did not meet the criteria for a social worker. School A said Y would struggle to access GCSE’s and alternative courses may be more engaging for him, however these courses were not available locally until Year 10. Y was playing in a school sports team. It was agreed the Council would look into funding alternative courses in Years 10 and 11 and Y’s EHC plan did not need changing at that time.
23. At the next review meeting in October 2019 it was recommended that the EHC plan was amended. Y been getting into trouble outside school and Ms X very concerned for his and her own welfare. Records show that a charity was going to provide some ‘respite’ to Ms X.
24. The Council told me that Ms Y’s social care needs were assessed in 2019 and 2020 and he was found not to meet the threshold for statutory short break services, but a family support worker was allocated in 2020. It says any ‘respite’ was not provided through social care.
25. A draft amended EHC plan was produced in October 2019 but I have not seen evidence this was finalised.
26. In November 2019 Y was in Year 9 and the school arranged for him to be assessed by an Educational Psychologist (EP) to advise about suitable curriculum and placement. The EP found Y’s motivation and attendance was dropping and he had a strong preference for a more practical curriculum. The EP recommended Y would benefit from a vocational curriculum and supported a change of placement.
27. Paperwork submitted to Council after the review meeting and EP assessment noted Y’s scores had not changed since Year 7 and he was not making expected progress. Y had been referred to physiotherapy in January 2019 but was discharged in July 2019 as he did not attend appointments. A change of placement was requested at annual review so Y could access vocational education instead of GCSE’s in September 2020.
28. Ms X replied to the Council’s complaint response of December 2018 in February 2020. Ms X said it was untrue that Y’s needs were being met and he did not receive two hours of literacy support per week and did not have a teaching assistant. Ms X said extra support was offered at 8am or 4pm but Y already found school exhausting due to his disabilities and he could not manage a longer day. Ms X complained School A had said it could no longer meet Y’s needs and said he would not be able to sit GCSE’s.
29. In February 2020 Ms X telephoned the Council upset that School A had told Y not to bother choosing GCSE options. The Council’s Head of Service asked officers to complete the annual review and change of placement.
30. In Spring and Summer 2020 the Council consulted schools. The Council says the delay was due to the lack of an appropriate placement to meet Y’s needs and because consultations coincided with the first National Covid-19 Lockdown. It told me Y remained on the school roll until a placement was agreed on 8th July 2020 ahead of a September 2020 start.
31. The Council’s responded to Ms X’s complaint of February 2020 in July 2020. It said:
• The School received £6000 funding and used this for learning support for Y in the form of smaller class sizes and support from a teaching assistant where needed, however Y did not qualify for top-up funding and 1:1 support. Y was receiving the learning support he was entitled to.
• The support was not just offered after school but via targeted maths and literacy lessons within the classroom during the school day.
• A personal budget could be discussed at the next review meeting however as Y does not receive top-up funding there were unlikely to be additional funds outside of core learning and provision already provided by the school to source the suggested use of this money for after school clubs and swimming lessons.
• The Council had consulted an alternative school and was expecting a response about a move in September 2020.
32. Y moved to a new school (‘School B’) in September 2020 and studied six GCSE subjects and one BTEC in a practical subject.
33. The Council issued another amended EHC plan in September 2020 but again this does not appear to have been finalised.
34. At the November 2020 annual review the EP attended and it was noted a social worker report was awaited. School B said Y needed teaching assistant support and may require extra funding to support him achieve GCSE’s.
35. In February 2021 Ms X told the Council she was not satisfied with its complaint response, Ms X also raised new issues including that School B did not have an up-to-date EHC plan and the Council had not attended the recent review.
36. The Council then provided a ‘stage three’ response merging the original complaint issues from 2018/19 and new issues. It said it had provided the most up to date EHC plan when it consulted School B in May 2020. The Council subsequently amended the Plan and issued an Amendment Notice in September 2020 which explained why Ms X had a different version at annual review in November 2020. The Council said it did not have capacity to always send a representative to every annual review meeting. In response to Ms X’s concern the Council had not reviewed Y’s EHC plan after he joined School B, it said it had held a review meeting in November, two months after he joined. In response to Ms X’s complaint Y had no 1:1 support, the Council said the EHC plan did not specify this was required so the school would not be expected to provide it. There was no professional advice Y needed full time 1:1 support, but the EHC plan did say he will have individual support for certain aspects of learning. The Council said the £6000 SEN funding supports the school putting the EHC plan support in place, but the school did not have to provide receipts to Ms X showing how this money was spent. The Council apologised if Y had not had a laptop available to him in school, the EHC plan did require this, and the Council had asked the school to arrange for Y to have use of a laptop.
37. A review meeting was held in April 2021 and amendments to the EHC plan recommended. Ms X wanted to home educate and wanted a personal budget to deliver this education. The annual review minutes show Ms X was advised elective home education (EHE) would mean she would have personal financial responsibility for Y’s education, including his SEN. Ms X told me she felt she was spoken down to at this meeting and ridiculed about taking on this responsibility. Professionals felt that Y should remain on the school roll. The Council says a personal budget should only be issued when it is not appropriate for that provision to be made in a School.
38. Y stop attending school in April 2021.
39. The Council issued a final EHCP in April 2021. Ms X told me she appealed the contents of this EHC plan to the SEND Tribunal, but the Council says it has not been notified of an appeal being registered. Ms X told me she is legally represented but sometimes struggles to understand the process.
40. Ms X approached social care in May 2021 and requested assessment. However, social care closed the case as it found Y did not meet the threshold for support.
41. The Council told me it is trying to work with Ms X to ensure she understands the difference between elective home education (EHE) and Education Otherwise than at School (EOTAS). It says a personal budget is being prepared and will be considered in the coming weeks.
42. In June 2021 the Council issued a draft amended EHC plan in response to negotiations with Ms X and her Solicitor.
43. The Council issued a final plan in August 2021 naming School B and giving Ms X a new right of appeal to the SEND Tribunal.

Relevant law and guidance

44. 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 EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
45. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
46. An EHC plan must be reviewed at least annually. After each review meeting the Council must decide whether to cease the plan, amend the plan or keep the plan the same. There is a right of appeal against each type of decision. The Council must inform the family of its decision within four weeks of the review meeting. When the decision is not to amend or to cease the family have an immediate right of appeal against that decision. Where the decision is to amend the Plan, the Council must amend it ‘without delay’; the right of appeal arises only when the final plan is issued. The Council must send the draft amended plan to the family with an Amendment Notice and issue the final plan no later than eight weeks after serving the Notice.
47. The SEND Tribunal can also consider health and social care parts of the EHC plan and make non-binding recommendations (where there is also an appeal about education).
48. Parents of a child with an EHC plan can request a personal budget or direct payments for special educational provision in the plan. Councils should provide information about the sort of provision where direct payments could be used.
49. Parents can also request personal budgets for health provision, but this request would be to the NHS Clinical Commissioning Group, not the Council.
50. Direct payments / personal budgets are also available in social care where a disabled child is eligible for services.
51. Parents have a right to educate their child at home (s.7 Education Act 1996). Elective Home Education (EHE) is different to education provided by a Council otherwise than at School (EOTAS), for example when a child attends an alternative education provider or receives home tuition. When a parent chooses to home educate they become financially responsible for any costs involved, including meeting their child’s SEN. With EOTAS the financial responsibility stays with the Council. EOTAS is usually provided only when a child cannot have their needs met in school.
52. Councils can choose to provide financial support to children with EHC plans who are electively home educated to support their SEN, but there is no legal duty to provide financial support.

Analysis

53. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate schools and therefore while Ms X feels School A and School B have let Y down, I can only look at the actions of the Council, not the schools.
54. I cannot comment on what the right placement for Y is. Ms X withdrew Y from School B but had a right of appeal against the final plans issued in April and August 2021 which it would be reasonable to expect her to use especially as she has a Solicitor involved. It would be for Tribunal to decide whether Y’s placement or Plan should change.
55. I can look at the actions of the Council up to the point when the right of appeal arose in April 2021. I have also exercised discretion to consider matters back to 2018. The Council has accepted the complaints of 2018 to date as one ongoing matter and accepted Ms X’s February 2020 comments as a late stage 2 request.
56. From the evidence provided to me, it appears that Ms X did not have a right of appeal between February 2017 and April 2021. This is fault. Parents should be provided with a right of appeal at least annually. At each review the Council should have issued a decision letter. If its decision was not to amend, it should have given Ms X a decision letter with a right of appeal against this decision. If the decision was to amend, and I can see amended plans were prepared several times, it should have issued these promptly and then converted the drafts into final plans with appeal rights. Y had an amended final EHC plan in 2017 but then it seems subsequent drafts after annual reviews were not finalised and the next final Plan was not issued until April 2021.
57. The loss of appeal rights was an injustice. Ms X was clearly unhappy with Y’s education from 2018 and felt his needs were not being met in mainstream secondary, that he needed 1:1 support, use of a laptop at home and more help with motor skills. Professionals also recommended a different type of curriculum. While Y moved schools in 2020 he is still studying an academic GCSE based curriculum, not the vocational one that the move was intended to provide.
58. Ms X should have had the right to ask the Tribunal to consider the suitability of Y’s education placement and the EHC plan wording in 2018, 2019 and 2020. This may have avoided the current situation where Y has disengaged from learning.
59. Ms X’s view is that School A and School B said they could meet Y’s needs but then did not do so. Ms X’s concern is that Y will leave school without any qualifications. Ms X’s concerns have been shown by her questioning how the schools were spending SEN funding and by suggesting that with a personal budget (or direct payments) she could meet some of Y’s needs better out of school. Ms X has now taken Y out of school but says no services have checked up on him and Y is not now getting any support.
60. All schools receive delegated funding to meet the needs of all the children in the school with SEN, as well as top-up funding for individual pupils with higher needs including those with EHC plans. The funding system assumes that schools will provide the first £6000 of support for a child with an EHC plan from its delegated funding. It may also receive a top-up from the Council if the child needs provision costing more than £6000. The evidence I have seen shows the school received a small top-up for Y. The Council is correct to say schools do not need to show individual parents how they spend the SEN funding and that much of this will be spent centrally, for example to employ teaching assistants or additional teachers to teach small groups. The Council is also correct to say the first £6000 does not follow an individual child, so if that child left the school, the delegated funding to that school would not change. It is only any top-up money which would ‘follow the child’ to a new placement.
61. Ms X had a right to request a personal budget or direct payment for special educational provision listed in the EHC plan. She could do this when the EHC plan was reviewed. Ms X initially asked for a laptop to be provided for use at home and money so Y could access activities after school to support his motor skills.
62. The 2017 final EHC plan shows that support for motor skills was in the Health section of the EHC Plan (Section G) not the Education section (Section F). The Council is responsible for provision in Section F, not G. The Council explained to Ms X that she may be able to ask for a personal budget once Y’s health needs had been reassessed. Y was referred back to physiotherapy, but was discharged without being seen when he did not attend appointments. It is not clear whether Ms X understood a budget for motor skills needs would be from the NHS and had nothing to so with the SEN funding given to schools and nothing to do with the Council.
63. It was not fault for the Council not to consider a personal budget or direct payments for support for motor skills as was provision in the Plan that the NHS, not the Council, was required to provide.
64. The EHC plan said Y needed a laptop for use in written work. This was in Section F (Education) and so for the Council to provide. Evidence at annual reviews shows Y was using a laptop in school. The Plan does not specify that Y should have had access to a laptop for homework, it just says for ‘written work’. It is not for the Ombudsman to interpret what the Plan intended. Ms X can ask the Tribunal to amend the Plan to include a laptop for home use. Had Ms X been given a right of appeal in 2018, 2019 or 2020 she could have appealed this wording to the Tribunal. I cannot however speculate whether the Tribunal would have ordered a laptop be provided for home use.
65. The Council did tell Ms X that PDSS would try and get a laptop for home use funded by a charity. I have not seen evidence the Council provided Ms X with an answer on this. If the Council promised to do something, it should have followed this up. I cannot say whether this would have led to Y receiving a free laptop from the charity.
66. Ms X felt needed more 1:1 provision and this was refused on costs grounds. The Council told Ms X that Y was not entitled to this provision as no professional had recommended it and so it was not included in Section F of the EHC plan. The Council is correct to say the EHC plan did not specify 1:1 was required. However, again it was fault that the Council did not provide Ms X with a right of appeal to challenge this wording between 2017 and 2021.
67. The Council should have identified in its complaint investigation that Ms X had been denied appeal rights, failure to do so was fault.
68. There is not enough evidence to show that Y did not receive the provision in his EHC plan at School A. I would note however that the EHC plan did not provide for additional education outside the school day and the presumption would be that Y’s needs would be fully met by School A within school hours. I acknowledge however that Ms X did not respond to the Council’s original complaint response on this point between December 2018 and February 2020 and education from March 2020 was affected by Covid-19 restrictions. The Council therefore did not have an opportunity to investigate this further before Y moved to School B.
69. The Council is correct to say that parents who choose to home educate assume financial responsibility for their child’s needs. The money delegated to school will not therefore be available to Ms X to educate Y at home. However, the Council can choose to make financial or other support (eg therapies) available to an EHC pupil who is home educated to meet their SEN, although it has no legal duty to do so. Councils can also consider whether it would be appropriate for a child’s needs to be met by the Council otherwise than at school, for example in alternative vocational placements and by tutoring.
70. The Council has issued a final EHC plan in August 2021 naming the current school. The Council could consider enforcing Y’s attendance at school if it is not satisfied he is receiving home education.
71. As Ms X has a current right of appeal to the SEND Tribunal she can ask the Tribunal to decide what sort of placement is appropriate and also to consider health provision for Y’s motor skills and his social care needs. I consider that it would be appropriate for Ms X to use her right of appeal if she remains dissatisfied about the provision and placement in the final EHC plan.
72. If Ms X does not wish to appeal about the education part of the EHC plan, she will not have a right of appeal about health or social care provision and she would need to raise these matters as new complaints.
73. The Council delayed in seeking placements after the review in 2019. While I acknowledge the impact of Covid-19 between March 2020 and September 2020, the Council should have started consulting placements before this. School A raised concerns about Y’s ability to access GCSE’s in 2018, at review in March 2019 and professional EP advice confirmed this in November 2019. The March and November 2019 reviews confirmed Y needed a new placement for Year 10 (September 2020). It seems consultations only started when Ms X telephoned the Council in February 2020. This was fault. Had the Council consulted in November 2019 (or earlier) this process may have been completed sooner and more options may have been available.
74. The Council has said that there was a lack of vocational placements locally. Councils are required to keep their special educational provision under review and to ensure they have sufficient provision to meet needs.
75. It is too speculative to say what might have happened had Ms X been able to appeal the Council’s decisions in 2018-2020. I do find that the lack of appeal rights is an injustice and Ms X will always have the uncertainty of whether, but for the delayed appeal rights and delayed school consultation, Y may have been able to access a different curriculum and placement in September 2020, if not before.

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Agreed action

Within four weeks of my final decision:

76. The Council will apologise to Ms X and Y for the faults identified.
77. The Council will make available £1000 to Y to acknowledge the uncertainty caused by lost appeal rights and delay in seeking alternative placements. The money should be held by the Council but used for Y’s educational, vocational or social benefit. As Y is vulnerable and at risk, the Council should consult with Ms X to consider whether there are specific items (eg a laptop, vocational equipment) or training / social opportunities that would be suitable to be purchased on Y’s behalf.
78. The Council will pay Ms X £500 to acknowledge the impact of the fault on her, her distress and the uncertainty of whether earlier appeal rights might have led to Y receiving more support or being able to access a different placement, as well as her time and trouble bringing the complaint.

Within six months of my final decision:

79. The Council has told me it is making significant changes to the structure of its SEN teams which includes senior management review of EHC processes to ensure timely decision making. As part of this review the Council will:
• ensure decision letters with appeal rights are issued within the correct time limits after all annual reviews
• ensure any lack of provision identified as a result of Y’s case is considered by officers responsible for ensuring sufficiency of SEN provision.

The Council will provide a report to the Ombudsman confirming the service improvements made within six months of my final decision.

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Final decision

80. I have completed my investigation. There was no evidence of fault by the Council in ensuring Y received the special educational provision in his EHC plan. There was fault in failing to provide decisions after each annual review that would have given a right of appeal against the contents of the EHC plan, including the placement. The uncertainty of whether this may have led to additional or different education being provided is an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman