Summary: Mr X complained about delay by the Council in issuing an Education, Health and Care Plan for his daughter, refusing direct payments and failing to make special educational needs provision. We found fault by the Council. The Council had already provided a partial remedy however we recommended a further financial payment and service improvements.

The complaint

1. Mr X complains about delays by the Council in issuing an Education, Health and Care Plan (EHCP) for his daughter, Y, when the family moved into the Council’s area in May 2020. Mr X says the Council did not issue a final Plan until nine months later, and six months after a review meeting held in August 2020. Mr X also complains about:
• the education team refusing 15 hours of Direct Payments as set out in Y’s EHCP;
• half-termly multidisciplinary team meetings (MDT) meetings not taking place;
• the Council’s inflexibility leading to a lack of provision;
• the Council ‘enforcing’ inappropriate provision; and
• poor communication, including not telling Mr X that a provider they had referred Y to was closed due to the COVID-19 pandemic.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. The law says we cannot normally investigate a complaint when someone can appeal to 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), 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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as SEND Tribunal in this decision statement.
7. 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.

Back to top

How I considered this complaint

8. I spoke to Mr X about his complaint, considered his comments and the information he provided. I made enquiries of the Council and considered its comments and the documents it provided. I also referred to the:
• the Special Educational Needs and Disability Code of Practice January 2019 (“the Code”) and
• the Special Educational Needs and Disability Regulations 2014 (“the Regulations”)
9. I gave Mr X and the Council the opportunity to comment on my draft decision. I considered their comments before reaching a final decision.

Back to top

What I found

Special Educational Needs

10. A child with special educational needs may have an EHCP. The EHCP sets out the child’s educational needs and what arrangements should be made to meet them. The Council is responsible for making sure arrangements specified in the EHCP are put in place and reviewed each year.
11. Parents have a right to appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child’s plan, or the fact that no school or other provider is named. The law generally prevents us from investigating complaints for which a remedy is available through an appeal to a statutory tribunal. This means the Ombudsman cannot investigate a complaint when the issues it raises can be dealt with through an appeal to the Tribunal.
12. The Ombudsman cannot look at complaints about what is in the EHCP but can look at other matters such as whether the support set out has not been provided or where there have been delays in the process.

Transfer of EHCPs

13. In accordance with law and guidance, when a child or young person with an EHCP moves into a different council’s area, the EHCP needs to be transferred either on the day of the move or within fifteen working days of the new council becoming aware of it.
14. The new council then has six weeks to notify the parent that the EHCP has been transferred and to tell them when it will review it.
15. Once an EHCP is transferred, the council must take responsibility for the provision. In particular, it needs to make sure that the special educational provision is made available.
16. If it is no longer practicable for the child or young person to attend the school named in the EHCP, the council must arrange for them to attend another appropriate school until they review and amend the EHCP.

First review of the transferred EHCP

17. The council must ensure it reviews the EHCP within either twelve months from it being made or last reviewed, or three months from the date of the transfer, whichever is the later.
18. It can also carry out a new needs assessment if it wants to.
19. After a review or assessment the council can:
• decide to keep the EHCP as it is;
• make changes to the EHCP; or
• decide not to maintain the EHCP.
20. The council must tell parents what action it will take.
21. Parents can comment on any actions the council plans to take following the review or assessment and appeal rights to the SEND tribunal.

Alternative educational provision

22. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless arrangements are made for them”.
23. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
24. The courts have ruled that what is ‘suitable education’ is a matter for the council to decide. Whether an alternative placement is ‘suitable’ is not based on the parent or child’s view but upon objective consideration of whether the education is reasonably possible or reasonably practicable for the child to access.

Personal budgets and Direct Payments requests

25. A personal budget is an amount of money that allows parents or young people to have some involvement in arranging provision. The Code says councils must offer a personal budget to most parents or young people who wish to receive them. There are different ways in which the council can administer a personal budget.
• One of the ways a council can pay a personal budget is via a ‘direct payment’ to the parent or young person.
• Another way a council can pay a personal budget is via a ‘an arrangement’ where the council holds the money and directly commissions services set out in the EHCP.
26. Paragraph 9.96 of the Code says that local authorities must have a policy on personal budgets: “…that sets out a description of the services across education, health and social care that currently lend themselves to the use of Personal Budgets, how that funding will be made available, and clear and simple statements of eligibility criteria and the decision-making processes.”
27. The Council’s Personal Budget Policy says it will offer parents early information about the purposes and extent of personal budgets and their implications.

What happened

Background

28. There has been a great deal of correspondence and discussion between Mr X and the Council about these issues. It is not necessary for me to detail everything that happened here. I have set out the key events.
29. Y has several conditions including an Autistic Spectrum Disorder (ASD), Attention Deficit Disorder (ADD) and anxiety.
30. Mr X and his family moved into the Council’s area at the end of May 2020. The Council was informed of this on 8 June 2020 when Y’s previous council transferred her EHCP.
31. The Council told us that Y had an EHCP which named specialist provision through a personal budget for 30 hours split between education and social care. Y had not attended school for two years due to her anxiety.
32. On 22 June 2020 the Council made enquiries with three providers for intervention provision. It sought 15 hours provision for Y. Provider A responded on the same day confirming availability.
33. On 13 August 2020 the Council held an annual review meeting of Y’s EHCP.
34. In early September 2020 the Council sent Mr X a copy of the annual review meeting report. Mr and Mrs X commented on the report. Mr X said they had sourced professionals who could offers some activities that Y would engage with. Mr X said they had paid for this support out of their own money as they had not received any information on how to access direct payments. Mr X reminded the Council that the three-month transition period ended in August.
35. On 22 October 2020 Provider A contacted Mr and Mrs X to discuss provision for Y.
36. The next day Mr X contacted the Council requesting an update on alternative provision and direct payments for Y. He said “On Monday next week it will be five calendar months since we moved into the area, and we do not have an EHCP or any direct payments from education in place; this is unacceptable”
37. Mr X confirmed that they had spoken with Provider A and the outcome was positive. He said they had agreed to meet in November.
38. In response the Council said it needed a clearer idea of what Mr and Mrs X wanted, as it could not provide funding without knowing what education was being offered, who would deliver the provision and the costs involved. The Council said it would need to ensure Y was receiving education from appropriately trained adults and how this would meet the provision in her EHCP. The Council asked Mr X for details of a qualified teacher who was providing social care provision to Y. It said if Mr X could forward the details of what the teacher would be providing and the cost of this, it would consider this.
39. On 30 October 2020 the Council issued an amendment notice confirming that changes to Y’s EHCP were required.
40. Mr X responded on the same day. He asked the Council to confirm whether funding was available. He said there was no requirement for anyone providing support that educates or trains to have any specific qualifications or training. 
41. The Council responded and confirmed that it could consider the hours requested but it still required information about the provision. The Council said it would be commissioning the individuals directly and therefore needed to know what the package would consist of. The Council reaffirmed that it had a duty to ensure that Y was receiving a quality education from professionals who were able to deliver the provision within the EHCP. Therefore, it needed to know their qualifications and how they could meet the education as set out in Y’s EHCP.
42. On 3 November 2020 the Council reissued the amendment notice and draft EHCP to Mr and Mrs X. It also asked if they would consider a referral to Provider C. Mr and Mrs X responded to the amendment notice and said they did not accept the draft EHCP.
43. Mr X complained to the Council on 4 November 2020 stating that it had failed Y.
44. On 18 November 2020 Provider A met with Mrs X and Y and confirmed that tuition would commence on 25 November 2020. Mrs X confirmed that the tuition arrangements agreed reflected a realistic approach towards establishing a relationship with Y,” including recognition of the very limited amount of contact time she will initially be able to manage”.
45. The Council responded on 25 November 2020 and upheld some of Mr X’s complaint. It agreed to make a back payment of direct payments from June 2020 to when Provider A started to work with Y.
46. On 5 December 2020 Mr X contacted the Council again about the delay in issuing Y’s EHCP and said they were still waiting for confirmation of the direct payments.
47. Ten days later the Council issued a further draft of Y’s EHCP. The Council asked Mr and Mrs X for details of professionals they would like to attend the MDT meetings. The Council asked Mr and Mrs X to confirm their availability for the meetings.
48. On 6 January 2021 the Council confirmed a back payment of £5858. It also asked Mr and Mrs X if they had looked at the information it had provided about Provider C.
49. On 18 February 2021 the Council issued the final EHCP.
50. On 22 February Provider A informed the local authority that the teacher supporting Y was leaving and it was unsure whether their provision was suitable. It produced a report for the Council highlighting the provision to date, what had worked well, its concerns and made recommendations about future provision for Y. On 31 March 2021 Provider A served notice on the tuition.
51. On 8 April the Council held a mediation meeting with Mr and Mrs X. At this meeting they agreed a list of professionals that would attend the MDT meetings. The Council held its first MDT meeting on 18 May 2021.

Back to top

Analysis

Delays in issuing Y’s EHCP plan following the review in August 2020

52. The Council must ensure it reviews the transferred EHCP within either twelve months from it being made or last reviewed, or three months from the date of the transfer, whichever is the later.
53. The Code says the Council should issue the final amended EHCP eight weeks after it sends the amendment notice to the parents or young person with the EHCP.
54. Following the annual review in August 2020 the Council should have informed Mr and Mrs X of its decision to amend Y’s EHCP by 10 September 2020. It did not send this until 30 October 2020. If the Council had issued the decision to amend the EHCP on time, then it should have issued the final EHCP by 5 November 2020. The final EHCP was not issued until 18 February 2021, which meant a delay of 15 weeks. This is fault.
55. I realise that Mr and Mrs X were unhappy with the draft EHCP, and the Council was trying to be helpful and supportive by revising it, but the Government intentions are clear; the whole EHCP plan process should be completed as soon as practicable. A reason for this is to ensure that the right to appeal to SEND Tribunal is not delayed, as it is in the child’s best interests to settle their education promptly. It is therefore not fault for a council to issue an EHCP a parent disagrees with.
56. The Council has already acknowledged there was delay in issuing the final EHCP following the annual review.

Council’s failure to secure SEN provision

57. The Council discovered Y was moving into its area when it received a formal notification from Y’s previous council in June 2020. The previous council agreed to a three-month transition period. Mr and Mrs X agreed for provision to start in September 2020. There is evidence to show the Council took action to secure Y’s education from 22 June 2020 when it consulted with intervention providers.
58. It took some time to make arrangements for Provider A to start working with Y. I note that a meeting with Mr and Mrs X did not take place until November 2020 and provision commenced at the end of the month. This meant that Y was without education provision from September 2020 to 25 November 2020. The Council failed to consider alternative provision until arrangements were made for Provider A to work with Y. This was fault.
59. Provider A was providing up to 15 hours’ tuition per week. I consider the provision put in place by the Provider complies with that detailed in Y’s EHCP. Provider A met with Mr and Mrs X and agreed that a gradual approach was required to ensure the provision was successful taking into consideration the limited contact time that Y would be able to manage. It is clear that the intention here was to work out what best suited Y. This provision was in place until 31 March 2021. I find no fault by the Council here.
60. The final EHCP was issued on 18 February 2021, and I have not investigated any loss of provision beyond this date. Mr and Mrs X had a right to appeal to the SEND Tribunal if they disagreed with the special educational provision set out in the Plan. I consider it was reasonable for Mr and Mrs X to have appealed to SEND as they had been through the process previously.

The Council’s consideration of the direct payment request

61. In its complaint response the Council apologised for failing to provide Y with direct payment funding while it amended the EHCP, in relation to tutoring and mentoring provision. To remedy the injustice caused the Council made a back dated payment of £5858 for the period prior to Provider A commencing provision on 25 November 2020. The Council accepted there would need to be an opportunity for Y to catch up on missed provision during that time. The Council explained that this was at the rate agreed by the previous council and agreed with parents and matched provision that was in place at that time.
62. I am satisfied that the back payment remedies the injustice caused to Y by the loss of provision during this period. However, I find that there was unnecessary delay by the Council in reaching this decision. Mr and Mrs X were put to the time and trouble of making a formal complaint before the Council agreed to the back payment, when the Council could have reached the same decision sooner.

The Council ‘enforcing’ inappropriate provision

63. The provision was agreed following a meeting between Provider A and Mr and Mrs X in November. There is no evidence that suggests the provision was enforced by the Council. Correspondence shows the Council considered concerns raised from February 2021 but needed more information. Provider A then ended the contract soon after issuing its report of March 2021.
64. Mr X says the Council made inappropriate referrals to external agencies without considering Y’s SEN needs and her EHCP. Specifically, he says there was a need for Y to have a tutor with specific demographics. I have reviewed Y’s EHCP and have found no reference to this requirement. I find no fault by the Council here.
65. It is not for the Ombudsman to determine the suitability of educational provision and as explained in paragraph 24, the courts have ruled that what is ‘suitable education’ is a matter for the Council to decide.

Mr X says the Council’s inflexibility led to a lack of provision

66. Mr X says the Council held a rigid view that additional provision should be provided by a qualified teacher. There has been a great deal of correspondence between Mr X and the Council about this.
67. I have carefully considered the Council’s communication with Mr X about this. There is no evidence to support Mr X’s view that the Council insisted on a qualified teacher to provide additional provision.
68. The Council asked Mr X to provide details of professionals he had identified to work with Y and referred to Mr X having identified a qualified teacher. The Council also asked Mr X to provide details of the support and provision that would be provided. As the Council has explained, it has a duty to ensure provision is quality assured, and that individuals are appropriately trained and qualified to deliver the provision the Council is responsible for. The Council did not stipulate the need for specific qualifications. I find no fault by the Council here.

Half-termly MDT meetings;

69. The Council has accepted that MDT meetings did not take place as required. In December 2020 the Council asked Mr and Mrs X for a list of professionals for the purpose of holding an MDT meeting. Mr X agreed to provide this information, but the Council said it never received a response.
70. A list of professionals was provided at the mediation and a meeting took place the following month. While I understand that a MDT had not been identified for the meetings to take place, I consider the Council could have held a meeting with the professionals already involved. In its complaint response the Council agreed to do this. There is no evidence to suggest the Council could not have done this soon after Y moved into its area.
71. The Council has acknowledged there was delay in holding an MDT meeting and apologised for this in its complaint response. I must consider whether the apology offered by the Council was sufficient to remedy the injustice caused by the delay.

Not telling Mr X that a provider they had referred Y to was closed due to COVID

72. I have checked the case records for the period covered by this investigation. I have found no evidence to support Mr X’s claim.

Injustice

73. The Council’s failure to issue an amended EHCP following the annual review in August 2020 meant that Mr and Mrs X were denied the opportunity to appeal against the EHCP. The Council should have issued the final EHCP so that Mr and Mrs X could have gone to appeal and mediation sooner if they remained dissatisfied. The failure to issue the amended EHCP meant that Y did not have the benefit of an up to date EHCP for 15 weeks longer than necessary. I recommend a payment of £500 to acknowledge the distress and uncertainty the delay caused.
74. I found that Y was without education provision from September 2020 to 25 November 2020 and the Council failed to consider alternative provision during this period. However, the Council made a made a back dated payment of £5858 prior to Provider A commencing provision on 25 November 2020. I am satisfied that this remedies the injustice to Y of lost provision during this period.
75. The Council failed to hold half-termly MDT meetings in accordance with Y’s EHCP. I consider this was a missed opportunity by the Council and meant that Mr and Mrs X did not have the benefit of meeting with professionals involved in Y’s education and social care, to address their concerns. This added to their frustration, distress and uncertainty and I recommend a payment of £250.
76. I am satisfied that Mr and Mrs X suffered further injustice, as they were frustrated by the Council’s delay in addressing their concerns. They spent a considerable amount of time and trouble complaining. I recommend a further payment of £250.
77. The Council has acknowledged that no funding or provision has been in place for Y since 31 March 2021. For the reasons explained in paragraph 60, I have not investigated loss of provision from this date as Mr and Mrs X had a right to appeal the EHCP issued in February 2021. I also understand that mediation commenced in April 2021.
78. The Council has agreed to make a back payment of funds once a provider has been agreed to make up for the lost provision from 31 March 2021. The Council has expressed its willingness to work with Mr and Mrs X to progress Y’s education. I welcome this approach by the Council and recommend that it arranges a meeting with Mr and Mrs X to address this.

Back to top

Agreed action

79. I recognise that the Council has already apologised to Mr and Mrs X for the faults identified in its complaint response and this statement.
80. I recommend that within one month of my final decision the Council should:
• pay Mr and Mrs X £750 for distress and uncertainty;
• pay Mr and Mrs X £250 for time and trouble;
• arrange a meeting with Mr and Mrs X to progress Y’s education and agree a back payment of funds for lost provision since March 2021; and
• take action to ensure staff responsible for completion of EHCPs act in accordance with the timeframes set out in the SEN Code of Practice.
81. The Council has accepted these recommendations.

Back to top

Final decision

82. I have found fault by the Council causing injustice and I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman