Summary: Ms X complained the Council failed to ensure Z was provided with a suitable education or the support in his Education, Health and Care plan (EHC Plan) during various dates between September 2019 and February 2021 and failed to provide the personal budget which had been agreed. Ms X said this meant Z missed out on the education and support he was entitled to. The Council has already agreed there was a lack of provision at times. There was also delay in setting up Ms X’s personal budget which caused her frustration. The Council's offer of £1,200 is suitable to remedy the injustice she and Z experienced.

The complaint

1. Mrs X complains the Council failed to:
• provide her son, Z, with a suitable education or the support in his EHC Plan during specific periods between September 2019 to February 2021;
• provide funding for an agreed personal budget between February and August 2020;
• complete Z’s reassessment and 2020 annual review on time; and
• deal properly with safeguarding concerns.
2. Mrs X says that as a result, Z missed out on a suitable education and therapies which has caused him harm. She also says she has been financially affected because she has had to pay for private reports and a psychologist.

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What I have investigated

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/care provider. (Local Government Act 1974, sections 26B and 34D, as amended)
4. Ms X says she did not complain earlier because during the pandemic she was in bad health and her care workers did not come in to support her. She also said the second Tribunal hearing did not conclude until February 2020 and she did not feel she could complain until after that. Lastly, she said she tried to complain in 2019 but the Council would not accept her complaint because she had appealed to the SEND Tribunal.
5. I consider these reasons to be sufficient to exercise my discretion and investigate Ms X’s complaints from July 2019. However, in considering the events and any fault leading to injustice, I have taken into account the amount of time that has passed and what can be achieved at this stage.

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The Ombudsman’s role and powers

6. 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)
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))

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.
10. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
11. If we are satisfied with an organisation’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)
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.

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How I considered this complaint

13. I spoke to Ms X and considered her view of her complaint.
14. I made enquiries of the Council and considered the information it provided.
15. I considered our guidance on remedies, available on our website.
16. I wrote to Ms X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The law and statutory guidance

Section 19 duty

17. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

Special educational needs

19. 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.
20. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
21. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
22. Councils should hold annual reviews of EHC plans. If it decides it is going to reassess the child or young person, it has three weeks to inform the parents of that decision and it must issue the final amended EHC Plan within 14 weeks from the decision to re-assess.
23. 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.

Emergency provision under the Coronavirus Act 2020

24. From 1 May to 31 July 2020, section 42 of the Children and Families Act 2014, the duty to secure special educational and health care provision in accordance with EHC plan, was modified by a notice from the Secretary of State for Education issued under the Coronavirus Act 2020. During this period, councils and health commissioning bodies were required to use their ‘reasonable endeavours’ to discharge this duty.

What happened

25. Z has had an EHC Plan since 2015 when he began school. He has a number of conditions and often presents as highly anxious. At the time of these events, Z was of primary school age.
26. In January 2019, at his annual review meeting, it was agreed his current school, School 1, was no longer able to meet his needs. It was also agreed to carry out a reassessment, because Z’s EHC Plan needed updating with new professional advice.
27. The Council issued an amended draft EHC Plan on 27 February.
28. In April 2019, the Council consulted a number of educational placements. These included School 2, which was Mrs X’s preferred placement. School 2 agreed to assess Z and put him on its waiting list. The other schools did not offer Z a place.
29. The Council issued five draft amended Plans before issuing the final amended Plan on 10 July. This included updated advice from professionals. Ms X appealed to the SEND Tribunal about a number of issues including the special educational provision.
30. Section F of Z’s final amended EHC Plan (the 2019 Plan) included:
• input from a SaLT including six meetings over the school year with Z’s teacher to review and set communication targets;
• blocks of music therapy funded by Children and Adolescents Mental Health Services (CAMHS); and
• four Occupational Therapy (OT) visits within the school year of 45 minutes each;
• two physiotherapist visits within the school year of 45 minutes each; and
31. Shortly before Z’s final amended Plan was issued, School 1 said that it would no longer be able to accommodate Z’s needs from September 2019.
32. The Council contacted the OT team in September. The team agreed to see Z after the October half-term holiday. This was delayed to January 2020.
33. The Council arranged a bespoke package of support with Tutor Agency B which was Ms X’s preference. The package included input from SaLT, OT and physiotherapy. The Council also continued to look for a suitable school for Z. The provision began on 16 September.
34. On 31 October, Mrs X raised concerns about Z’s tutors and on 1 November, the Council suspended the provision whilst these were investigated.
35. Ms X made a request for School 3. On 14 November, a Council panel considered this request. However, School 3 was not a registered educational provider and so it refused Ms X’s request. The panel agreed to fund alternative educational provision whilst looking for a permanent school placement.
36. On 21 November, Ms X said she no longer wished Z to receive tuition from Tutor Agency B. The Council states it suggested another tutoring agency to Ms X (Agency C), but she declined this and said she would source a teaching assistant herself through a personal budget. Ms X denied this conversation took place. As proof she cites the fact she contacted Agency C which stated it had not received any communications from the Council on this matter. The Council references, as proof the discussion took place with Ms X, an email she sent the Council asking for more details of what Agency C would provide.
37. On 23 December, the panel agreed Z could attend School 3 for 17.5 hours a week. This was arranged as part of a personal budget to Ms X as the school remained unregistered. The personal budget also included an additional 10.5 hours a week for a learning support assistant.
38. Z was due to have his annual review in January 2020. However, because Ms X had appealed to the Tribunal, the Council thought it did not have to hold one.
39. Z started the process of integrating into School 3 in January 2020.
40. On 28 January 2020, the Tribunal issued its decision. This stated the Council would issue Z’s final amended EHC Plan within two weeks of the date of the order. The Tribunal ordered education other than at school (EOTAS) and therapy through a direct payment to Ms X of a personal budget. The Council would directly commission SaLT and OT.
41. The Council issued Z’s final amended EHC Plan on 11 February. It included the following special educational provision in section F:
• weekly sessions of SaLT and OT;
• half termly assessment and monitoring by a paediatric physiotherapist;
• 10.5 hours support within the classroom;
• weekly therapies to be paid for by a personal budget; and
• a gradual transition from home to another environment.
42. Section G of Z’s Plan (health provision) specified Z would receive music therapy once a week.
43. Z’s Plan did not name a specific placement but said he would attend a special school setting. The Council asked Ms X if she would like it to source the 10.5 hours support a week. On the same day, it sourced a tutoring agency (Agency D). Ms X refused. During my investigation she explained this was because she had to be available to supervise Z the whole time and that was not possible due to her own disabilities and care package.
44. In March, schools went into lockdown because of the COVID-19 pandemic.
45. Ms X emailed the Council on 27 April and said that Z would now only receive 10.5 hours a week. She said this was because the Council had stopped other pupils from attending School 3 during COVID-19 and so it could not afford to operate.
46. In July 2020, the Council started to commission independent SaLT and OT. The Council was also in contact with the NHS about physiotherapy and it emerged the physiotherapy department had been working from Z’s July 2019 EHC Plan and not the February 2020 Plan. Physiotherapy had assessed Z, provided a programme and started a block of therapy although this stopped due to the COVID-19 restrictions.
47. In November, School 2 confirmed it could offer Z a school place.
48. In January 2021, Z began to attend School 2, initially with one home visit and one school visit a week. These increased to a routine of two hours at school once a week as well as the home visit. This continued for a number of weeks. Z was highly resistant to attending school and so the school used various techniques to encourage him.
49. On 17 May 2021, Z’s annual review was held at School 2 and it was recommended Z attend full-time from September.
50. On 9 July, the Council issued Z’s draft amended EHC Plan. It issued a second one later that month. It issued the final amended EHC Plan on 11 August 2021 and Ms X’s personal budget ended.
51. From September, Ms X said Z was unfit to attend school. Because there was no medical evidence to support this, the school continued to work with Ms X to reengage Z.
52. Ms X also complained to the Council about missed provision. The Council said there had been delays in securing provision for Z but this was because the provision was not in a school environment and also due to the restrictions of COVID-19. It upheld some of her complaints and apologised.
53. Ms X remained unhappy and asked for her complaint to be escalated to stage 2 of the complaint procedures. She also appealed to the SEND Tribunal.
54. In January 2022, the Council issued its report into Ms X’s complaints. Information about Ms X’s specific complaints and the Council’s findings can be found in the paragraphs below.
55. Ms X remained unhappy and complained to the Ombudsman.

My findings

56. The law says the Council has a non-delegable duty to secure the provision required in a child’s EHC Plan. Children also have a right to a full-time education. However, when considering whether a council has acted with fault, we will consider a number of factors. These include when the Council first became aware provision was not being provided, why the provision was no longer available and whether the council acted with delay in finding new provision.

No provision of either a suitable education or the support in Z’s EHC Plan for the period 2/9/19 to 16/9/19

57. The Council's complaint response found that although Z received no provision from 2/9/19 to 16/9/19, it had acted without delay. This was because once the provision had been sourced in August, it had to be approved at a panel meeting which only met once a month. The panel met on 3 September and approved the funding and the tuition started soon after.

My findings

58. Although there was no undue delay in the Council’s actions, its procedures hampered the start of the provision. As a result, Z was without provision for two weeks. These delays were fault.

No provision of either a suitable education or the support in Z’s EHC Plan for the period 26/9/19 to 6/1/20

59. When Ms X cancelled the provision with Tutor Agency B after raising concerns, the Council states it discussed provision with another tutoring company which Ms X refused. The Council said there was a period of four weeks in December that Z was without provision and partially upheld Ms X’s complaint.

My findings

60. Ms X complained to the Council on 31 October about Tutor Agency B. As a result, the Council paused the provision whilst Ms X pursued her complaint. This was appropriate action to take. At the end of November, Ms X cancelled the provision and the Council states it discussed a new provider, Agency C, with Ms X. Ms X denies this discussion took place.
61. The Council has accepted Z was without suitable education for around four weeks, which was fault. Ms X challenges this period of time on the basis the Council became aware she had suspended provision on 31 October and therefore believes the period where the Council was at fault is around seven weeks.
62. Councils have a non-delegable duty to secure the provision in an EHC Plan. However, they should be allowed time to secure new provision when existing provision stops suddenly, as in this case. It was also reasonable for the Council to defer sourcing new provision until it has been determined if the provision with Tutor Agency B might restart.
63. I cannot know whether the Council’s or Ms X’s version of what discussions took place in relation to Agency C is the most accurate. However, on balance, the fact Ms X sent an email in November referencing Agency C indicates some mention of it was made to her, even if the Council did not go so far as to contact the Agency. But in any case, the end of the autumn term was approaching, and it was unlikely at this stage that a new tutoring service would be found before the Christmas holidays. Under these circumstances, the Council’s assertion of four weeks delay is not unreasonable. And in view of the uncertainty around what happened and the brief period of three weeks under dispute, I do not propose to consider this any further.

No provision of either a suitable education or the support in Z’s EHC Plan for the period 27/4/20 to 9/8/20

64. The Council found that for this period, Z was accessing an EOTAS package and should have been attending School 3 but this closed due to the pandemic. In May 2020 the Council suggested a farm placement for 10 hours a week to supplement Ms X’s personal budget but Ms X did not take up this offer because she said the farm would not allow them to visit prior to taking up the placement. The Council said that following it making this offer, there was a delay of around one month before Ms X’s legal representatives responded.
65. In her response to my draft decision, Ms X stated it was possible the placement could not start until September 2020.
66. Under the emergency COVID-19 legislation, the Council considered it had made reasonable endeavours to ensure the provision in Z’s Plan. The Council did not uphold this complaint.

My findings

67. NHS services such as SaLT, OT and physiotherapy stopped during the first lockdown. School 3 also closed down during this period and remained permanently shut.
68. The Council took steps to identify other provision for Z. As set out above, on balance, it is more likely than not some discussion around Agency C took place in November 2019. The Council also put forward Agency D in February 2020. These actions demonstrate the Council continued to seek other provision for Z. The Council also suggested a farm placement and it took some time for it to receive a response over this.
69. Amendments to the Education Act meant that councils could use reasonable endeavours to secure the provision in a child’s EHC Plan. Although these provision did not come into effect until 1 May 2020, we consider it reasonable to apply them from the date of the first lockdown in March. Although some of the efforts referred to above took place prior to March, it is reasonable to consider them here. On the balance of probabilities, the Council met that requirement. There was no fault.

Full-time suitable education not provided from 6/1/20 to 27/4/20 and 9/8/20 to 27/4/21

70. In relation to the first period, the evidence relating to Z and his anxieties around accessing a school placement shows that even when gradual integration procedures were followed, these were generally unsuccessful. Z’s February 2020 EHC Plan made particular reference to this and the need for gradual integration into a school placement. The Council was not at fault for not providing Z with full-time education.

Provision of SaLT 2/9/19 to 11/9/20

71. Z’s July 2019 EHC Plan did not quantify what SaLT provision Z should receive other than to say Z’s class teacher should meet with the SaLT therapist six times a year to review and set communication targets.
72. From September 2019, the Council records show a SaLT therapist visited Z on four occasions (September and December 2019 and January and February 2020). The Council did not uphold this complaint.
73. The Council issued Z’s amended final EHC Plan in February 2020, which included weekly SALT support. It failed to send the SaLT provider a copy until several months later. As a result, Z only received one session in March 2020.
74. In August 2020 the Council started SaLT with Z. This started in the summer holidays to try to provide some catch-up for him. Z received 35 sessions that school year. The Council partially upheld this complaint.

My findings

75. Z received SaLT in line with the provision in his July 2019 EHC Plan. There was no fault.
76. The Council failed to send the SaLT provider a copy of Z’s February 2020 Plan. This is fault which resulted in Z only receiving one session before the country went into lockdown instead of his weekly provision starting.
77. However, it is unlikely the SaLT provider would have offered weekly sessions throughout lockdown. I also do not know if Z would have engaged with SaLT in his home environment, even if that was offered. Therefore, I cannot say with any certainty that Z was caused an injustice as a direct result of the Council’s fault. And any potential injustice would be tempered to some extent by the additional provision available from August 2020. However, this has caused Ms X uncertainty over what provision Z may have been able to access.

Provision of OT 2/9/19 to 4/8/20

78. The Council did not uphold Ms X’s complaint for the period when Z’s July 2019 Plan was in force. It approached OT in September 2019 but was informed the service did not have capacity until after the October half-term. There were then further delays which meant it was not until January 2020 that an OT carried out a home visit. The OT considered school based input would be more appropriate because Z was not engaging in the home environment. The Council states Ms X was in agreement with this. Ms X disputes this.
79. The Council also did not uphold Ms X’s complaint for the period when Z’s February 2020 Plan was in force because it said the emergency Coronavirus Act 2020 allowed for reasonable endeavours to be used.

My findings

80. Z’s July 2019 EHC Plan specified four OT visits over the school year to support Z at school with a termly review meeting. The Council acted without fault when it approached OT although there were subsequent delays to January 2020 which is fault.
81. Given the time that has passed since 2020, I am not going to be able to resolve whether the OT and Ms X did agree at the January home visit that the OT support should be halted until Z was in school. In any event, there was only one month between that visit and February, when the Council issued a new EHC plan. I will therefore not investigate this issue further.
82. Z’s February 2020 Plan specified weekly OT. This started in August 2020. In its response to Ms X, the Council used ‘reasonable endeavours’ as the reason provision did not start earlier. However, other than correspondence with Ms X and her legal representatives, there is no evidence the Council took any steps to source the provision between February and July. This was fault.
83. As with SaLT, I cannot say if the provision would have been available earlier due to the pandemic. And the Council took steps to make up the missed provision by beginning sessions in the summer holidays. Therefore, I cannot say if Z was caused a direct and significant injustice. But as with the SaLT provision, Ms X has been left with uncertainty over what provision Z may have been able to access.

Provision of music therapy 2/9/19 – 16/9/20

84. The Council found that the provision of music therapy was in two sections of Z’s July 2019 EHC Plan, causing confusion. It did not come to a finding because it said it could not determine whether Z received provision between September 2019 and February 2020.
85. From February 2020, it was agreed Ms X would receive a personal budget to pay for weekly music therapy. Therefore, it was her responsibility to secure provision. The Council did not uphold this part of Ms X’s complaint.

My findings

86. Ms X said Z did not receive the music therapy specified in his July 2019 Plan. The Council has not provided evidence to the contrary. Therefore, on balance the provision was not secured, and this was fault. As a result, Z was caused an injustice because he did not receive the provision he needed for this period.
87. Z’s July 2019 Plan also specified this provision in two sections. This was fault although it did not result in any further injustice to Z or Ms X.
88. The Council did not directly arrange music therapy between February to September 2020 because it had agreed Ms X would receive a personal budget to pay for it. However, as set out in paragraphs 101 and 102, delays in finalising the personal budget likely caused Z to miss out on some of the music therapy provision.

Provision of physiotherapy from 2/9/19 to mid-July 2020 and provision of the wrong physiotherapy from mid-July 2020 to 26/4/21

89. The Council found Z’s July 2019 Plan specified two physiotherapist visits within the school year. Records indicate Z received one visit in October 2019.
90. Z’s February 2020 Plan specified monitoring every half term (six visits). It later transpired the physiotherapist had not received a copy of the February 2020 Plan and so had based sessions on the requirements in the July 2019 Plan.
91. The Council upheld the lack of provision from February 2020 but said it could not speculate on whether the wrong physiotherapy had been provided as that was for the NHS.

My findings

92. Ms X also complained about this matter to the NHS. Both the NHS and the Council upheld Ms X’s complaint about lack of provision from February 2020. Further investigation of fault would achieve nothing further. However, I have considered the injustice caused to Z by this fault.

Delay in finalising Z’s July 2019 EHC Plan

My findings

93. At the January 2019 annual review, the Council decided to reassess Z. The statutory timescales mean that the Council should have issued Z’s final amended EHC Plan in May, around 16 weeks later. The Council took 23 weeks which was fault.
94. Ms X said this caused Z an injustice because it led to delays in consulting with schools. However, the Council began the process to consult whilst finalising the Plan. Therefore, the delays in issuing the Plan did not lead to delays in consulting with schools. It did however lead to a delay in putting the additional provision specified in the February 2020 plan in place which caused Z an injustice.

Failure to hold Z’s annual review in January 2020

95. The Council informed Ms X that it wrongly thought it did not need to hold an annual review at this time because there was an ongoing appeal underway. It has apologised and made service changes.

My findings

96. It is unlikely Z experienced an injustice because he had no annual review. This is because the SEND Tribunal considered Z’s provision around that time and the Council issued a final amended Plan following the appeal.
97. Ms X believes that if the annual review had been held, it would have negated the need for the Tribunal hearing the following month. I cannot know what would have happened. However, the SEND Tribunal hearing was held that month, so any injustice is not significant enough to warrant further investigation.

Provision of personal budget from February 2020 to August 2020

98. The Council informed Ms X that delays occurred in finalising the personal budget because of disputes between itself and Ms X’s legal representatives. It then said it was unable to process the funds earlier because Ms X did not return the forms until August 2020.
99. It did not uphold this complaint.

My findings

100. Following the SEND Tribunal decision in February, the Council should have acted promptly to set up Ms X’s personal budget. There is no evidence of any action in the first weeks after the hearing. It is not until around May/June 2020, that steps were taken with Ms X and her solicitors to finalise the budget. Although I accept there would have been understandable delays for a period from March because of the COVID-19 pandemic, some of these delays were avoidable. This was fault.
101. With regard to injustice as a result of this fault, the pandemic meant it was likely much of the support Ms X was to arrange using the personal budget was suspended, particularly for new children. However, Ms X was caused frustration and it is likely Z missed out on some support because of these delays.

Assessment of Z’s needs

My findings

102. The Council reassessed Z following his January 2019 annual review. Since then, there have been three SEND Tribunal hearings where these matters were considered, together with suitability of Z’s special educational provision and his educational placements. Further investigation could achieve nothing further.

Safeguarding concerns

My findings

103. The Ombudsman provides a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome.
104. Ms X raised concerns about Tutor Agency B in 2019. The Council stopped the provision whilst the agency investigated the complaint. The Council was satisfied with the agency’s investigation and there is no evidence Ms X’s concerns met the Council’s threshold for a safeguarding investigation to be carried out in addition. It is unlikely I could achieve anything meaningful at this stage, nearly three years later. I do not propose to investigate this matter further.

Conclusions

105. The Council has already apologised and offered Ms X £900 for the injustice caused to Z by the faults it identified. It has offered Ms X £300 for its complaints handling. This is in line with our guidance on remedies for the injustice caused to Z and Ms X by the faults identified by the Council and any additional fault I have found.

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Agreed actions

106. The Council has agreed to pay Ms X £1,200 within one month of the date of my final decision.

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Final decision

107. There was fault leading to injustice. The Council has already offered to take appropriate steps to remedy this. I have completed my investigation on that basis.

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Investigator's decision on behalf of the Ombudsman