Summary: The complainant alleged that the Council has delayed in issuing an amended final Education, Health and Care Plan, failed to ensure that her son received the special educational needs provision required and delayed in responding to her requests for a personal budget. We find that there have been some delays amounting to fault causing injustice. The Council has agreed the recommended remedy and therefore we are closing the complaint.

The complaint

1. The complainant, who I refer to as Ms X, complained about services provided to her son (Child B) in respect of his special educational needs (SEN). In particular:
1. the Council delayed in responding to the complainant’s request for a personal budget, which she made in February 2020 at an annual review;
2. delayed in completing the reassessments, agreed in August/September 2020;
3. delayed in issuing a final amended Education, Health and Care (EHC) Plan
4. failed to ensure that Child B received the support he should have had as set out in his EHC Plan, in particular the 32.5 hours support at school; and
5. failed to provide appropriate education since March 2020.
2. As a result, Child B has missed out on appropriate education and the family has been caused avoidable distress and frustration.

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What I have investigated

3. I am looking at events from January 2020 to July 2022. Matters, which I cannot investigate, are set out in the last paragraph of this statement.

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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. The Special Educational Needs and Disability (SEND) Tribunal deals with disputes about assessments and provision for special educational needs. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that we cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
6. However, we can look at the consequences of any delay by a council in issuing the final EHC Plan and the consequences of any fault prior to the time the appeal right was triggered.
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
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)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

10. I have made enquiries of the Council, shared its response with Ms X and considered her oral and written response. I issued a draft decision statement to the Council and to Ms X and considered their additional comments. I issued an amended draft decision statement to the Council and Ms X. I have taken into account their further comments when reaching my final decision.

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What I found

Legal and administrative arrangements

11. The Children and Families Act 2014 (the Act) sets out the way councils should assess the special educational needs and disability of children and young people up to the age of 25. The Special Educational Needs and Disability Regulations 2014 (the Regulations) and the Code of Practice (the Code) provide guidance to councils about how to do this.
12. 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.
13. 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. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.
14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. 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 EHC Plan has been issued.

Annual reviews

15. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Special Educational Needs and Disability Code of Practice January 2015 (the Code) says reviews must be undertaken in partnership with the child and their parent.
16. EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate.
17. After the review, the council has four weeks to send the child’s parents its decision about whether the EHC Plan is to continue; whether it needs changing or if it is to end. If the council decides to amend the EHC Plan it must do that “without delay”.
18. Parents and young people can request a council provides a personal budget for special educational provision in an EHC plan and request direct payments. The request must be made when the draft EHC plan is being prepared, reviewed or re-assessed. (The Special Educational Needs (Personal Budget) Regulations 2014 Section 4(1)). A personal budget can be given to a child’s parent to secure particular provision that is specified, or proposed to be specified, in an EHC Plan. It is an amount of money identified by the Council to deliver provision set out in the EHC Plan. Councils are under a duty to prepare a budget when requested.
19. The Code (9.186) says that there may be occasions when a reassessment becomes necessary, particularly when the child or young person’s needs have changed. The Code says (9.187) that councils must agree a reassessment if the parent, or the school or the local clinical commissioning group (CCG) (now called Integrated Care Board) request this unless there was a reassessment six months ago.
20. The council can also refuse a reassessment if it considers it is unnecessary. Councils must tell parents/carers its decision within fifteen days of the request. Councils must tell parents/carers of the right of appeal to the SEND Tribunal.
21. If the decision is to reassess, councils must issue a final amended EHC Plan within fourteen weeks of that decision. Professionals should provide their advice within six weeks of the request.

Applied Behaviour Analysis (ABA) therapy

22. ABA is treatment for those with autism which focuses on changing behaviours through reinforcement strategies. It requires one-to one support, and strategies should be reinforced at school and at home.

Legislative changes due to Covid 19

23. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give more flexibility to councils in dealing with EHC Plans and provision. It changed councils’ absolute duty to ‘secure’ the education provision in an EHC plan to one of using ‘reasonable endeavours’ to do so. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties to provide returned.

Children out of school because of medical needs

24. 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”.
25. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
26. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
27. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.

Background events

28. Child B has a diagnosis of autism (ASC), social communication difficulties, language delay and learning difficulties. Child B uses gestures, such as pointing, or expressive utterances. He has little sense of danger. The Council issued a final EHC Plan in May 2015. In 2017, Child B started at an Infants School. The Council says that, in November 2018, it provided 32.5 support hours per week for Child B at school.
29. In May 2019, there was an annual review. It was considered the EHC Plan remained appropriate, but it was agreed that the parents should start to look for a special school for September 2020 when Child B would have to move from the Infants School.

Details of this complaint

30. The Council issued a draft EHC Plan in January 2020 following the May 2019 review. Consultations were sent to the parents’ preferred special school (School D) and two other schools. At this stage, Ms X was funding Child B’s Occupational Therapy (OT) and Speech and Language Therapy (SALT) because the Council was not providing this. Ms X says that she asked for a personal budget to fund this. Mrs X says that the Council refused this because it intended to provide these therapies. But Ms X says that it did not.
31. The Council says that it has no record of a request for a personal budget at this point. But Ms X has provided evidence that in January and February 2020 she asked for a personal budget when returning her comments on the draft EHC Plan.
32. In February 2020, the Council finalised the EHC Plan to meet the statutory deadline, naming a mainstream Junior School (School C). There were no available places at School D. The Council says that Ms X agreed the transition to School C. Later in the month, the Council commissioned OT and SALT assessments and an independent assessment from an ASC Consultant. The Council says this was to support Child B’s transition to School C in September 2020. Child B’s 2020 final amended EHC Plan stated that the intensive support would be provided by school staff.
33. Child B’s EHC Plan included 32.5 hours per week support. Ms X says that this high amount of support was because it was recognised that mainstream schools would have difficulty meeting Child B’s needs without this. Child B was eligible for higher needs funding paid to the school. High needs funding is provided if the level of provision in an EHC Plan is above that made available through the Education and Skills Funding Authority. As I understand it, schools pool their SEN budget and allocate resources to its pupils with an EHC Plan.
34. In March 2020, there was the national lockdown. The Council says that the parents chose to keep Child B at home. Ms X says that this was the case because of their and Child B’s (and their other child’s) vulnerabilities. At the end of May 2020, the Council says that it offered online SALT for Child B. Ms X says that she accepted online SALT but that this was not provided.
35. In July 2020, Ms X asked for a personal budget to manage the SEN provision. Ms X and SEN officers met. The Council then wrote to Ms X explaining that it would not agree to a personal budget because specialist assessments (OT and SALT) had been commissioned as part of Child B’s EHC Plan.
36. In September 2020, Child B started at School C. There was an annual review in September 2020 when the parents requested a reassessment of Child B’s SEN, a personal budget and ABA provision. The annual review noted that Child B was settling at School C. On 13 October 2020, the Council agreed to reassess. It had fourteen weeks to complete this. The Council also agreed to provide ABA support at School C, and this started in November 2020.
37. The parents also asked again for a personal budget so that they could manage Child B’s SEN provision. This was not agreed for the reasons already provided by the Council. Ms X continued to ask for a personal budget at various stages after this.
38. Ms X says that she became more concerned that School C was not ensuring Child B received the full 32.5 hours support per week to which he was entitled. She raised this with School C and with the Council and asked for a breakdown of the support provided. Ms X says she has not been provided with this and she remains concerned that Child B is not progressing at School C because of the lack of support. She made a formal complaint to the Council. The Council asked School C to look into this, but Ms X says that she has still not received a satisfactory answer.
39. In June 2021, there was an annual review. The Council says that Ms X expressed satisfaction with the progress Child B was making and that he had a good relationship with his learning support assistant (LSA). The Council also says that it was agreed that the issue of the draft amended EHC Plan would be delayed until all the specialist assessments had been received. The Council says that these assessments were delayed because of Covid-19 and because professionals did not provide its advice within the six weeks required timescale.
40. In September 2021, the Council says that, after receiving the SALT assessment, such provision was made available for Child B at School C to run to July 2022. It also agreed OT should be provided, starting in January 2022. The Council says that it also agreed to pay for certain assistive equipment. Ms X says this has not been provided.
41. The Council issued a draft amended EHC Plan in November 2021. The Council says that it did not issue a final EHC Plan because it was trying to work in partnership with the parents. It seems that the parents and the Council agreed a special school was required. It seems a suitable school with an available place was identified. The Council recognise that the delay in issuing an amended final EHC Plan would have delayed Ms X’s right to appeal to the SEND Tribunal.
42. The Council also recognises that the delay in obtaining the SALT, OT and ASC assessments, and subsequent delays in providing the required therapies, may have curtailed Child B’s progress.
43. At the end of April 2022, Ms X says that the Council issued a further draft amended EHC Plan. She did not consider this was the final and it was just placed on the Council’s SEN portal. She did not receive a copy in the post. Ms X says that she was not told it was the final EHC Plan or that she had a right of appeal to SEND.
44. The Council has provided evidence that it issued a final amended EHC Plan at the end of April 2022 which it placed on its SEN portal. Ms X says that she did not understand it was the final EHC Plan because none of her requested amendments in the body of the document had been included. In early May 2022, Ms X emailed the Council referring to the fact that it seemed the ‘final’ plan had been issued on the Council’s SEN portal but expressing concern that none of her requested amendments had been included. She asked the SEN officer to contact her to clarify. But she did not receive a response.
45. The Council has provided evidence that there was a letter on the SEN portal telling Ms X of her right of appeal to the SEND Tribunal. Ms X says that she did not see this letter and it is hard to navigate the SEN portal.

Provision made to Child B since September 2020 after lockdown ended

46. The Council has provided information about the provision made to Child B while at School C. I provide a brief summary.
47. The Council says School C has provided a wrap around support service, organised by the School’s class teacher (CT), the higher level teaching assistant (HLTA) and the deputy head teacher (DHT), and they work closely with other school staff to ensure Child B’s needs are met. Child B is supervised in the playground, is accompanied to lunch by the HLTA who sits with him for lunch and helps him clear away. The HTLA then passes responsibility to the learning support assistant.
48. Child B attends a small hub at the school for the morning, taught by a SEN teacher and HLTA, covering key topics. He has one to one teaching with the HLTA, outside the classroom, covering weekly science, computer skills three times per week, and sensory play when Child B is distressed. He also attends a small group with the HLTA for music, art, sport, social and nurture groups. He has SALT provision, consisting of a fortnightly review of targets and daily practice of skills. In addition, the ABA programme is delivered in school including the Maths recovery programme and the Council has provided termly support from an ASC Consultant since July 2020 and fortnightly SALT support.
49. The Council has also enabled the ABA provision to be provided at home since September 2021 and the SALT teacher has visited Ms X’s home with the ABA tutor. In addition, the Council has provided a functional communication aid since February 2022.

Findings

Complaint (1)-Personal budget

50. There is a dispute about whether Ms X requested a personal budget in January 2020. Ms X has sent evidence to show that she did request a personal budget in January/February 2020. There is also evidence the Council asked Ms X to complete the personal budget request form in January 2020. My view is that there has been delay by the Council in responding to Ms X’s request for a personal budget at this point and this amounts to fault.
51. Ms X asked for a personal budget again in July 2020 and has continued to request this at various stages. My view is that the Council has not delayed in responding since July 2020 and it has reviewed its refusal. But I cannot see that it provided a notional budget which it should have done. That is fault. But, given the Council subsequently declined to offer a personal budget, I cannot say that its delay has caused more than frustration.

Complaints (2), (3), (4) and (5)-delays in the reassessment, failure to provide the 32.5 hours support and failure to provide appropriate provision

52. The Council should have issued an amended final EHC Plan by February 2021. Whatever the reason for the delay, this amounts to fault by the Council. However, I am satisfied that the Council did issue a final amended EHC Plan and accompanying letter in April 2022. Therefore, the delay amounts to fourteen months over the statutory timescale.
53. What injustice has this caused? The Council recognises that this has delayed the parents’ right of appeal to the Tribunal. This is significant because the Tribunal can order a council to make certain educational provision. Ms X says that she was unaware of her appeal rights because the Council did not tell her via the portal and also because her suggested amendments were not included in the purported final EHC Plan. So, she assumed it was not the final. I accept that Ms X’s emails to the Council at this time asking for clarity were not replied to. It would have been better if the Council had provided this clarity at this stage. But I can see that the Council relies upon its SEN portal to communicate with parents/carers and it would have been satisfied that Ms X had been told of, and had access to, a copy of the final EHC Plan and accompanying letter. I also note that in May 2022 Ms X herself referred to the EHC Plan as the ‘final’ one. Therefore, I do not find fault on this aspect of the complaint.
54. Because Ms X did not appeal the EHC Plan, even though she disagreed with it, the injustice caused by the delay in issuing an amended final EHC Plan is the frustration and time and trouble she has experienced in chasing up the Council to issue the final EHC Plan. Ms X’s concern that the final EHC Plan did not incorporate the amendments are matters about which she could have appealed.
55. The Council is satisfied that Child B has been receiving appropriate education, but it recognises that the delays in providing specific therapies may have disadvantaged him. Ms X considers that Child B’s progress has been prejudiced by the Council delays in making therapies available. On the balance of probability, it is more likely than not that Child B, who has extensive and complex needs, would be disadvantaged by delays in providing the therapies he requires.
56. In addition, Ms X also considers that, when at School C, Child B was not receiving the full 32.5 hours support to which he is entitled to. Therefore, his progress is not as good as it could have been.
57. The Council has now provided details of what has been provided at School C. The Ombudsman cannot investigate the actions of schools. But I am satisfied, based on the Council’s information, that appropriate educational provision has been made to Child B over the period of this complaint, apart from the fact that there have been earlier delays in assessments and providing the direct OT specified in the April 2022 final amended EHC Plan.

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Agreed actions

58. I am satisfied that there is fault causing an injustice, namely an initial failure to respond to the January/February 2020 request for a personal budget, a failure to provide a notional budget, delay in providing specific therapies (SALT and OT) and delays in issuing a final amended EHC Plan. As a result, Ms X has been caused avoidable frustration and time and trouble and it is more likely than not that Child B will have been disadvantaged by not receiving the required therapies (SALT and OT) sooner. However, I am satisfied that Child B has received appropriate educational provision at School C and the Council has provided a ‘wrap around’ service and ensured the ABA programme was delivered at school and at home.
59. The Ombudsman’s guidance on remedies makes the following points:
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;
• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.

60. To remedy the injustice, I have taken into account that the Council has made appropriate educational provision at School C. I recommend that the Council within one month of the date of the final statement, should;
1. apologise to Ms X for the faults identified and pay £400 in recognition of the frustration and time and trouble she experienced in chasing up the Council;
2. make a payment of £400 to Ms X, which she can use in consultation with School C, to make up for the delay in providing assessments and subsequent provision of OT and SALT to Child B; and
3. it seems that Ms X has had difficulty in navigating the Council’s SEN portal. It might improve her and other parents’ experience of the portal if the Council hears directly from Ms X about the difficulties she has experienced in order to consider what improvements, if any, could be made to the portal for the future.

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Final decision

61. I find some fault by the Council, causing an injustice. The Council has agreed the recommended actions and therefore I am closing the complaint.

Parts of the complaint which I cannot investigate

62. I cannot investigate the actions within School C. Ms X has the right to complain to the Governing Body of the school.
63. I also cannot investigate any complaint about the content of the April 2022 final amended EHC Plan because Ms X had the right of appeal to the SEND Tribunal and was aware of this.

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Investigator's decision on behalf of the Ombudsman