East Riding of Yorkshire Council (20 013 905)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 17 Oct 2021

The Ombudsman's final decision:

Summary: Miss X and her mother, Mrs Y, complained about how the Council provided for Miss X’s special educational needs. The Council accepted there was fault in how it helped Miss X plan for her post 16-education and that it paid Mrs Y direct payments she did not agree to. There were also further delays in the Council resuming responsibility for the personal budget and providing some of the support Miss X needed. The Council agreed to pay an improved financial remedy to both Miss X and Mrs Y. It also agreed to review how it plans for education transitions and arranges personal budgets.

The complaint

  1. Miss X and her mother, Mrs Y, complained about how the Council provided for Miss X’s special educational needs. They said the Council:
      1. took too long to assess Miss X’s needs and produce an Education, Health and Care (EHC) plan in 2017;
      2. took too long to review Miss X’s EHC plan before her transition to further education in 2019, and in 2020;
      3. forced Mrs Y to electively home educate Miss X between September and December 2019;
      4. provided Mrs Y with direct payments which she did not want or agree to; and
      5. failed to provide all the provision named in Miss X’s EHC plan from January 2021 onwards.
  2. As a result, Miss X and Mrs Y said:
    • Miss X did not receive a suitable education between September and December 2019;
    • Miss X could not properly choose or prepare for her further education;
    • they both suffered significant distress, worry and inconvenience;
    • Mrs Y could not work, lost earnings and had to spend a lot of time complaining to the Council; and
    • Miss X’s needs are still not being appropriately met.
  3. Miss X and Mrs Y wanted the Council to:
    • arrange all the provision named in Miss X’s EHC plan, including her continuing education;
    • provide a key worker or otherwise take responsibility for co-ordinating Miss X’s continuing education;
    • pay Miss X a financial remedy for the education she missed, her lack of choice in education and distress caused to her; and
    • pay Mrs Y a financial remedy for the distress caused to her and her loss of earnings.

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What I have investigated

  1. I have investigated parts b), d) and e) of the complaint.
  2. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. 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)
  2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  3. 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)
  4. 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)
  5. 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.
  6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to 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)
  7. 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

  1. I considered:
    • the information provided by Miss X, Mrs Y and their representative, and discussed the complaint with their representative;
    • the Council’s comments on the complaint and the supporting information it provided; and
    • relevant law and guidance.
  2. Miss X, Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
  3. 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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What I found

Education Health and Care plans

  1. 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.
  2. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
  3. The Council is responsible for making sure that arrangements named 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. However, we cannot consider those parts of an EHC plan that health services are responsible for providing.
  4. The SEND code of practice: 0 to 25 years (the Code) published by the Government sets out what councils must and should do to support children with special educational needs. The Code says:
    • EHC plans must be reviewed at least every 12 months. If a child attends school, the school must review the plan. If a child is educated outside school, councils must arrange the review;
    • after a review, councils must tell the parents what actions they intend to take within four weeks;
    • councils must ensure that EHC plan reviews from Year 9 include a focus on preparing for adulthood, including possible further education. These reviews should result in clear outcomes which are ambitious and prepare young people for adulthood;
    • personal budgets (an amount of money identified by councils to deliver the provision set out in an EHC plan) are optional; parents or young people must ask for and agree to them. Personal budgets can be made by direct payments, where individuals receive money to contract, purchase and manage services themselves. Parents or young people must ask for and agree to direct payments; and
    • health care provision specified in section G of EHC plans must be agreed by the local clinical commissioning group, which is responsible for commissioning that support.

What happened

  1. Miss X has medical conditions which mean she cannot attend school in person. These conditions started significantly affecting her education in 2017, while she was at secondary school. From early 2017, Miss X was educated at home through the Council’s home tuition service.
  2. In October 2017, Mrs Y applied to the Council for an EHC assessment for Miss X. When she heard nothing from the Council, she asked it for the assessment again in March 2018. The Council issued an EHC plan for Miss X on 26 March 2019.
  3. The Council reviewed Miss X’s EHC plan on 28 June 2019 to prepare for Miss X’s transition to post-16 education. At that meeting, the Council said Miss X’s preferred college could not support her to study from home and the Council’s home education service did not provide post-16 education. The only choice offered was for the Council to provide Mrs Y with a personal budget to pay for private tutors. Although Mrs Y told the Council she did not feel able to do this, the Council asked Mrs Y to investigate suitable tutors to start in September 2019.
  4. The Council wrote to Mrs Y on 9 August 2019, confirming the changes it intended to make and issued an amended EHC plan on 13 September. This plan said that Miss X would be educated through Elective Home Education (where a parent chooses and takes responsibility for educating their own child outside school).
  5. Mrs Y said she did not agree to take responsibility for Miss X’s education or a personal budget and had not chosen to educate Miss X at home. She appealed the September 2019 EHC plan to the SEND tribunal which made a final decision on 15 December 2020.
  6. During the tribunal process, Mrs Y had to arrange Miss X’s education and manage the personal budget the Council assigned. The Council accepted this meant Miss X did not receive an education between September 2019 and January 2020.
  7. The Council reviewed Miss X’s EHC plan again in May 2020 and accepts it failed to tell Miss X and Mrs Y about the outcome of that review meeting.
  8. The Council issued a final, amended EHC plan on 21 January 2021 based on an agreement reached during the tribunal process. The plan said Miss X would receive:
    • education through an online learning service supported by face-to-face tutoring in her own home;
    • exams through either the online learning service or through local examination centres as an external candidate;
    • equipment to allow her to work comfortably from home, as assessed by healthcare professionals; and
    • support to help her manage the psychological effects of her health problems.
  9. The Tribunal also recommended Miss X be urgently referred to Child and Adolescent Mental Health Services (CAMHS).
  10. The EHC plan said this support would be provided through a personal budget and the Council agreed with Mrs Y that an external payment management company would manage the budget.
  11. Mrs X said she arranged much of the provision included in this plan before the tribunal decision, still had to chase payment arrangements in February 2021, bought much of the equipment Miss X needed and also arranged some of the psychological support as late as May 2021. She said she also feels responsible for co-ordinating much of Miss X’s education, which she said the Council should be responsible for.

The Council’s response to the complaint

  1. Mrs Y complained to the Council in February 2020 about delays in the EHC plan process, the content of Miss X’s EHC plan and the personal budget/direct payments.
  2. In its response, the Council accepted:
    • there were delays in the EHC plan process;
    • it had not properly explained the implications of direct payments;
    • Mrs Y had to arrange much of Miss X’s education herself; and
    • communication from the Council had been poor.
  3. At Mrs Y’s request, the Council considered her complaint under stage two of its complaints procedure. In its final, August 2020 response the Council also accepted:
    • it had failed to take a holistic approach to Miss X’s education;
    • Mrs Y never agreed to, and it should not have made, direct payments;
    • it failed to properly explain the implications of elective home education and this choice “was arrived at by default”;
    • the uncertainty and delays had severely affected Miss X’s prospects for achieving the qualifications she wanted.
  4. The Council agreed to:
    • resume responsibility for Miss X’s personal budget;
    • pay Mrs Y £750 for Miss X’s missed education between September 2019 and January 2020;
    • pay Miss X and Mrs Y £500 each for the distress, time and trouble caused to them both; and
    • repay Mrs X for the reasonable costs of equipment she had bought, subject to an occupational therapy assessment.
  5. Miss X and Mrs Y complained to the Ombudsman because they were not satisfied with the Council’s actions or the proposed remedies. They said the Council should do more to co-ordinate Miss X’s education and Mrs X wanted the Council to compensate her for lost earnings.

My findings

Reviews of Miss X’s EHC plan

  1. The Council issued Miss X’s first EHC plan on 26 March 2019. Therefore, the first review of this plan was due in March 2020. The Council reviewed this plan in late June 2019, so this review was not late.
  2. However, Miss X was due to transition to post-16 education from September 2019. The Code says such transitions are particularly important and that, in Year 11, the emphasis should be on helping students firm-up their post-16 choices.
  3. Although Information Advice and Guidance staff from the Council started exploring alternatives with Miss X in February 2019, the Council only reviewed Miss X’s EHC plan two months before she was due to start post-16 education. This did not give enough time to properly explore the choices available to Miss X or make suitable arrangements to meet her needs before September 2019.
  4. Although it reviewed Miss X’s EHC plan within 12 months of making it, the Council accepted the timing of the review and poor communication affected Miss X’s prospects of achieving the qualifications she hoped to. The evidence also shows that, due to the lack of clarity about what would happen, Miss X changed her A-level choices, had to abandon some of her coursework and felt very distressed by the uncertainty about her post-16 education. I am satisfied that this caused Miss X avoidable distress, uncertainty and loss of opportunity to make the most of her A-level studies.
  5. The Council also accepted it did not tell Mrs Y it intended to amend the EHC plan within the required four weeks of the June 2019 review. Although the delay was only two weeks, I am satisfied this contributed to the uncertainty Miss X experienced.
  6. In its response, the Council offered Miss X £500 to recognise these effects on Miss X. Considering our guidance on remedies, the importance of transitions between stages of education and the effects on Miss X, I am satisfied this is a suitable remedy.
  7. I am satisfied these delays also caused avoidable frustration, inconvenience and uncertainty to Mrs Y and this justifies a financial remedy. I have addressed this in the next part of the decision.
  8. The Council next reviewed the EHC plan in May 2020. This was within 12 months of the last review, so was within the statutory timescales. Although the Council accepts it did not tell Miss X and Mrs Y of its decision following this meeting, this was during the tribunal appeal proceedings. Therefore, I am satisfied this failure did not cause a significant injustice.

Direct payments

  1. From the June 2019 review, Mrs Y made it clear to the Council that she did not want and did not feel able to take responsibility for arranging Miss X’s education or managing a personal budget. Despite this, the Council made direct payments to Mrs Y from mid-2019 until late 2020. The evidence also shows Mrs Y needed to chase payments both for items she had bought and tutors as late as February 2021, despite the Council agreeing to take responsibility for the personal budget in August 2020.
  2. In its final response, the Council accepted it did not properly explain the implications of making direct payments to Mrs Y and did not get her agreement to make them. It accepted this caused significant inconvenience and distress.
  3. In August 2020, the Council offered to pay Mrs Y £500 to recognise the distress, time and trouble caused by the Council’s failings and needing to complain. This included distress caused by both having to arrange Miss X’s education and for managing the direct payments.
  4. For the reasons given in the final section of this statement, I can only consider the injustice to Mrs Y caused by the Council making direct payments. Considering our guidance on remedies, the time Mrs Y received direct payment and the sums of money involved, I am satisfied the £500 offered by the Council included a sufficient remedy for the injustice caused by receiving direct payments and the delays in reviewing Miss X’s plan.
  5. However, the Council made this offer in August 2020. The evidence shows issues with the personal budget continued until at least February 2021. This meant Mrs Y continued to be involved in the finances of Miss X’s education, causing her further inconvenience and frustration. Therefore, the Council should pay Mrs Y a further £250 for the avoidable distress between August 2020 and February 2021 and the time and trouble of her needing to complain further.
  6. Mrs Y asked the Council to also compensate her for loss of earnings because she could not work while arranging and managing Miss X’s education. However, I am not satisfied that managing the direct payments caused the losses Mrs Y says she incurred.

Provision in Miss X’s current EHC plan

  1. The evidence shows Miss X is now receiving the provision named in her January 2021 EHC plan. She receives online learning through an agreed provider, tutors to support her choice of subjects and, since June 2021, wellbeing therapy through her chosen provider. Payments for these services are managed through a payment management company arranged by the Council, or directly by the Council itself.
  2. Mrs Y arranged much of this support during the tribunal process. For the reasons in the final section of this statement, I cannot consider that period.
  3. However, there was a gap of five months between January 2021 and the start of the wellbeing support service. The evidence shows Mrs Y asked for this support service. While the Council should involve Miss X (and Mrs Y at Miss X’s request) in choosing suitable services, the Council should take the lead in securing all the provision named in her EHC plan.
  4. The delay in arranging this wellbeing support was fault and Mrs Y needed to ask for the service. This meant Miss X went without some of the support named in her EHC plan for 5 months. This was a small part of the provision named in her EHC plan but was related to her emotional wellbeing. Therefore, the Council should pay Miss X a further £150 for the delays in arranging that support. Although she needed to ask for this support from the Council, I am not satisfied the inconvenience of this justified a financial remedy for Mrs Y.
  5. Although the Tribunal recommended that Miss X was referred to CAMHS, this was a health recommendation. The Council passed this to the designated clinical officer at the local clinical commissioning group (CCG) who decided a referral to CAMHS was not suitable because of Miss X’s age. The Council was not at fault for how it referred the recommendation to the CCG and I cannot investigate the CCG’s actions.
  6. Mrs Y wants the Council to appoint a key-worker to co-ordinate Miss X’s education. The law says the Council must “secure” the provision named in an EHC plan. It does not have a responsibility to oversee the day-to-day provision. Rather, the Council must review the provision in line with its legal responsibilities, such as annual reviews, and must act if any of the secured provision stops or is not meeting Miss X’s needs.
  7. However, the evidence shows there is a lack of clarity between Miss X, Mrs Y and the Council about responsibility for the provision in Miss X’s EHC plan. The Council should provide a clear explanation about who is responsible for each part of Miss X’s provision, including both the day-to-day responsibility and who at the Council Miss X or Mrs Y should contact if there are any future problems.

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Agreed action

  1. Within one month of my final decision, the Council will:
    • pay Miss X the £500 it previously offered for the avoidable distress, uncertainty and loss of opportunity caused by the delays in preparing for her post-16 education;
    • pay Miss X a further £150 for the delays in arranging the support for her emotional wellbeing;
    • pay Mrs Y, in addition to the sum it has already offered, a further £250 for the avoidable distress and frustration caused by the further delays in taking back responsibility for the personal budget; and
    • write to Miss X and Mrs Y with a clear explanation of who is responsible for the day-to-day oversight of each part of the provision in Miss X’s EHC plan and who at the Council they should contact if there are any future problems.
  2. Within three months of my final decision, the Council will:
    • review how it plans for the transition between major stages of education for those children and young people with special educational needs who do not attend a school or college. This should ensure reviews are carried out in sufficient time to properly prepare for the transfer; and
    • review is process for arranging personal budgets and direct payments for children or young people with EHC plans, to ensure it only provides these when requested and agreed by parents or young people.

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Final decision

  1. I have completed my investigation. The Council accepted there was fault in how it helped Miss X plan for her post 16-education and paid Mrs Y direct payments she did not agree to. There were also further delays in the Council resuming responsibility for the personal budget and securing some of the provision in Miss X’s EHC plan. The Council agreed to pay an improved financial remedy to both Miss X and Mrs Y. It also agreed to review how it plans for education transitions and arranges personal budgets for EHC plans.

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Parts of the complaint that I did not investigate

  1. I have not investigated the initial delays in preparing Miss X’s EHC plan. Mrs Y was aware of these delays more than 12 months ago, so her complaint about this is late. We cannot investigate late complaints unless there are good reasons. There are no good reasons to investigate this part of the complaint now.
  2. I have also not investigated Mrs Y’s complaint that the Council forced her to home educate Miss X. This is because the law says we cannot investigate matters which have been considered by the SEND Tribunal, or which are ‘inextricably linked’ to such matters. Mrs Y appealed the naming of elective home education in Miss X’s EHC plan to the tribunal, so I cannot investigate this, any education Miss X missed as a result or the impact of arranging that education on Mrs Y.

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Investigator's decision on behalf of the Ombudsman

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