Summary: Mrs B complained that the Council failed to make suitable alternative provision for her son when he was unable to attend school because of anxiety. She also says the Council failed to secure the provision in his education, health and care plan and refused her requests for a personal budget. We found no fault on the Council’s part.

The complaint

1. Ms B complains that the Council:
• failed to make suitable alternative provision for her son when he was unable to attend school;
• failed to secure the provision in her son’s education, health and care plan; and
• refused her requests for a personal budget.
2. Ms B says her son has missed provision he was entitled to. She also says the situation has caused the family distress and they have incurred costs in attempting to meet his needs themselves.

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What I have investigated

3. I have investigated Mrs B’s complaints about events which took place after the Special Educational Needs and Disability (SEND) Tribunal hearing on 17 November 2020.

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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. 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)
6. 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)
7. 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)
8. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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.

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How I considered this complaint

10. I have considered all the information provided by Ms B, made enquiries of the Council and considered its comments and the documents it provided.
11. Ms B and the Council had an opportunity to comment on my draft decision before I reached a final decision.

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What I found

Legal and administrative background

Children with special educational needs (SEN)

12. A child with special educational needs may have an education, health and care plan (EHCP). This sets out the child’s needs, what arrangements should be made to meet them and where or how the child will be educated.
13. The council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act).

Personal budget

14. A child’s parent may make a request to a council for a personal budget, including a request for direct payments, at any time during the period in which the draft EHCP is being prepared or the period in which it is being reviewed or reassessed. Where a request for direct payments has been made, the Council must consider that request.
15. A council may only make direct payments in respect of the special educational provision specified in an EHCP. (The Special Educational Needs (Personal Budgets) Regulations 2014)

Appeal rights

16. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.
17. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Alternative provision

18. The Education Act 1996 (Section 19) says councils must make arrangements for the provision of suitable education for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
19. The Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education and should enable the child to achieve good educational attainment on par with their mainstream peers. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests.

Key facts

20. Mrs B’s son, C, started primary school in 2017 but struggled to attend because of high levels of anxiety. In 2018 he was diagnosed with autism and attention deficit hyperactivity disorder (ADHD).
21. The Council completed an EHC needs assessment and, in December 2018, it issued an education, health and care plan (EHCP) naming a mainstream primary school. In the cover letter the Council explained to Mrs B that, if she was unhappy with the contents of the EHCP, she had a right of appeal to the Tribunal.
22. Mrs B did not appeal but, in January 2019, she de-registered C from the school and requested specialist provision. The Council issued an amended final EHCP stating in section I that Mrs B wanted to make her own arrangements for C through a home-based education programme. Mrs B says she did not want to educate C at home. But she did not appeal to the Tribunal despite being advised of her right to do so in December 2018.
23. In July 2019 Mrs B again requested a specialist school for C. The Council issued a new EHCP in September 2019 and declined Mrs B’s request as it considered C’s needs could be met in a mainstream school. Mrs B did not appeal.
24. A revised EHCP was issued in February 2020. Mrs B again requested specialist provision. The Council again declined this request. In March 2020 Mrs B appealed to the SEND Tribunal against the lack of a placement for C and the provision set out in the EHCP.
25. In September 2020 the Provision Panel agreed specialist provision from September 2021 at School X. The Council began providing 10 hours home tuition for C via Company 1.
26. On 10 November 2020 Mrs B sent an email to the SEND officer saying she wanted to make a formal application for a personal budget (PB) for C. The officer responded on 16 November 2020.
27. On 17 November 2020 the Tribunal made an order by consent naming School X from September 2021 and ordering 10 hours per week home tuition until then. A final EHCP was issued on this basis.
28. On 17 December 2020 the SEND officer sent an email to Mrs B explaining she was exploring the loan of a laptop from one of the local schools.
29. In January 2021 Mrs B complained that the Council had failed to make the provision set out in C’s EHCP. She also said no PB had been provided and she wanted this to assist with delivering the provision set out in the EHCP.
30. On 17 February 2021 Mrs B cancelled the tuition provided by Company 1.
31. A few days later there was an annual review where a transition plan to School X was discussed. The Council arranged tuition with a different provider, Company 2. Mrs B cancelled the tuition on 12 March 2021.
32. Mrs B asked the Council whether it had managed to source a PC and said she wanted to discuss the possibility of C attending play therapy. The SEND officer explained the team had not been able to source a PC. She said they were aware of a charity that donates computers, laptops and iPads and had put C’s name on the waiting list. She also attached a referral form and parental consent form for play/music therapy and explained Mrs B would need to give her consent before the SEND service could make a referral.
33. On 7 April 2021 Mrs B requested home tuition from another provider, Company 3. The Council contacted Company 3. It had no availability but added C to its waiting list. In the meantime, tuition from Company 2 remained on offer.
34. On 17 May 2021 C and Mrs B visited School X.
35. On 18 June 2021 Mrs B asked that C’s start at School X be delayed until September 2022. The Council declined this request because C had been out of school for more than two years.
36. On 8 July 2021 C’s teachers sent an email to Mrs B saying they had been trying to contact her to invite C in for an hour to join the class and asked her to contact them. On 19 July 2021 C visited the school with Mrs B.
37. The Council says C was discharged from occupational therapy because of non-engagement by Mrs B.
38. C was due to start school on 2 September 2021. That morning Mrs B sent an email to the school saying she had been unable to get him to entertain the idea of school. The teachers responded with some suggestions to help including driving by the school and doing the school tour on its website.
39. The following week C did not attend school. The teachers telephoned Mrs B each day. She said she had tried driving by the school but C’s anxiety was overwhelming. The teachers suggested a home visit but Mrs B declined because she felt it would not be helpful. The teachers also suggested Mrs B bringing C to school for just half an hour and waiting for him then gradually increasing this. They also suggested visiting after school finished in the afternoon to get C familiar with his teachers. Mrs B said she felt visiting the school would not be helpful.
40. The school arranged a video meeting on 15 September but Mrs B did not attend. She sent an email saying she had decided School X was not the correct setting for C. She also said she felt the family had not received enough help with C’s transition which had created a poor introduction to returning to a school setting. She asked for C to be removed from the school roll.

Analysis

Alternative provision

41. Mrs B says the Council failed to make suitable alternative provision for C when he was unable to attend school. She says, although the Council put tuition in place, the tuition provider had no experience of teaching children with special educational needs. She says the ‘teacher’ was a teaching assistant and C would not engage with her. She says she complained to the Council and it accepted this and agreed to try another company but never did so.
42. The Council had put tuition in place in September 2020 and this continued after the Tribunal hearing. The Council received feedback from the sessions by the tutor and was satisfied with the tuition being provided and that C was engaging. It has provided a spreadsheet of lessons for January 2021-12 February 2021. All the entries state that C was “engaged and settled” in the lesson. The note of 26 January 2021 states that C was “making expected progress”.
43. In the Council’s stage 2 response to Mrs B’s complaint, it referred to comments following the 5 January 2021 tuition session that “mother is pleased with the changes in [C]”
44. After Mrs B cancelled the tuition in February 2021, the Council agreed to source another provider. It arranged for Company 2 to provide tuition shortly afterwards. Mrs B cancelled this after a short period as she was not happy with it. The Council agreed to contact her preferred provider but they had no availability so C was put on the waiting list. In these circumstances, there was nothing more the Council could do. In the meantime, provision was still available with Company 2.
45. I do not uphold this aspect of Mrs B’s complaint. I am satisfied alternative provision was made available between November 2020 and September 2021 when C was due to start at his named school. A school place was then available for him at a specialist school which the Tribunal had deemed suitable for his needs.

The provision in the EHCP

46. Mrs B says the Council failed to secure the provision set out in C’s EHCP.
47. Mrs B says transition sessions were supposed to take place before C started school in September 2021 but only one session was provided.
48. The EHCP says C “will be provided with the opportunity to visit the educational setting several times before he starts there as part of a planned and structured transition programme”. This was to include being introduced to key staff and the opportunity to become familiar with the building and layout.
49. An annual review was held on 22 February 2021. The head teacher from School X was invited together with the SALT and OT to discuss how transition would be supported between home and school X in preparation for the September 2021 start and how SALT and OT could support transition and ensure therapies were provided within the school setting in September.
50. C visited the school with Mrs B in May and July 2021. C’s class teachers were in regular contact with Mrs B to try to arrange further visits to the school and home visits or video calls to get C familiar with his teachers.
51. I am therefore satisfied that C was given the opportunity to meet his teachers and become familiar with the school site. Teachers also suggested a gradual introduction to school by Mrs B attending with C and leaving him in the classroom for very short periods.
52. Mrs B says C should have received play/music therapy to help with the transition back into school but this did not happen. Play/music therapy was not mentioned in section F of the EHCP so there was no requirement for the Council to provide this. However, it agreed to make a referral for this provision. It informed Ms B of this in an email dated 19 March 2021 and sent her a consent form to complete. The officer explained she would need to complete this for the referral to be made. The Council says she did not return the form so it could not make the referral. I find no grounds to criticise the Council in this regard.
53. Mrs B says the Council has not provided a laptop or iPad for C as agreed. The Council has made attempts to acquire a laptop but has not been able to do so.
54. There was no requirement for the Council to provide a PC because this was not included in the EHCP. So, there are no grounds to criticise it for failing to do so.
55. Mrs B says SALT and OT has not been provided. SALT and OT provision was included in section F of the EHCP but this was to be provided in school. It was not therefore possible to provide this because C did not attend the school.
56. I am satisfied that the Council secured the provision set out in the EHCP as far as it was able to given that most of the provision was to be delivered in school and this could not be done because C did not attend.

Personal budget

57. Mrs B says the Council has refused her requests for a personal budget (PB). She says every time an EHCP was issued she requested a PB but each time her request was ignored. She says she never received a formal refusal of her request.
58. I have only considered Mrs B’s request for a PB in November 2020. Her complaints about the Council’s refusal of her previous request for a PB are late. She could have complained to the Ombudsman about those sooner.
59. The Council responded to Mrs B’s request for a PB in an email of 16 November 2020. It provided Mrs B with a ‘Personal Budget Guide’ and a leaflet about direct payments. It explained that PB’s are not a way of getting extra money, but for using existing resources more flexibly to achieve the outcomes identified in section F of the EHCP. It explained that most of the items Mrs B wanted a PB for were not mentioned in section F of the EHCP, for example: IT equipment; a scooter; play/ music therapy; and a gardening group. So, a PB would not be available. However, the Council explained how it may be able to help in relation to some of the items, for example making a referral for music/play therapy. The Council said the other items on Mrs B’s list (SALT and OT) would be provided as set out in section F of the EHCP.
60. Later, in its responses to Mrs B’s complaint, the Council again explained that a PB must link directly to the outcomes and provision set out in section F of the EHCP. The items Mrs B wanted a PB for did not do so, so a PB could not be provided.
61. I find no grounds to criticise the Council’s decision to refuse Mrs B’s request for a PB. It has explained that a PB would not be appropriate as most of the items Mrs B was requesting a PB for were not included in section F of the EHCP. In addition, SALT and OT were to be provided in school, so a PB would not be appropriate.

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Final decision

62. I do not uphold Mrs B’s complaint.
63. I have completed my investigation on the basis that I am satisfied with the Council’s actions.

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Parts of the complaint that I did not investigate

64. I have not investigated Ms B’s complaints about events which took place prior to the SEND Tribunal’s order dated 17 November 2020 for the following reasons:
• Some of the issues Mrs B complains about took place in 2018 and 2019. I have not investigated these complaints because the Ombudsman would not normally investigate complaints about events which took place more than 12 months before someone complained to us.
• When the Council issued an EHCP in December 2018, it notified Mrs B of her right of appeal to the SEND Tribunal. I consider it would have been reasonable for Mrs B to appeal if she was dissatisfied with the contents of the EHCP.
• Further EHCPs were issued in 2019. Again, it would have been reasonable for Mrs B to exercise her right of appeal. So, there are no grounds to exercise discretion to investigate these complaints.
• The Council issued a new EHCP in February 2020. Mrs B exercised her right of appeal in March 2020. The Ombudsman cannot investigate a complaint if someone has appealed to a tribunal.

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Investigator's decision on behalf of the Ombudsman