Summary: The complainant (Mrs X) said the Council’s failed to follow due process when reviewing her son’s (Y) Education, Health and Care Plan (EHCP). She also said the Council failed to provide Y with full-time education, consistently deliver special educational provisions (SEP) identified in his EHCP, make payments to Y’s tutors as agreed and effectively communicate with the parents. I found fault with all aspects of Mrs X’s complaint. The Council agreed to pay the outstanding invoices for the ABA tutoring, continue funding his ABA tutoring until Mrs X’s appeal is resolved by the Tribunal and make a distress payment for Mrs X. It also agreed to complete some service improvements.

The complaint

1. Mrs X complains the Council failed to:
• follow the Annual Review process, including sending post-review correspondence, a draft EHCP and a final EHCP;
• consistently deliver SEP included in Y’s EHC plan;
• make provisions for full-time education for Y;
• make payments for Y’s tutors despite the agreement;
• cooperate with Y’s parents and involve them in making decisions about Y’s support through:
1. regular communication
2. inviting them to meetings
3. consider all the evidence provided by them
2. Mrs X says the Council’s failings meant Y lost education and did not get support necessary for his progress with education and social skills. She also claims they had negative impact on her work, well-being and mental health.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. There is a right of appeal to the SEND Tribunal (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.
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.

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How I considered this complaint

8. I spoke with Mrs X and considered the information she provided.
9. I made enquiries with the Council and considered the information it provided.
10. I reviewed the Council’s Personal Budget Policy, Due Diligence process and the Council’s policy on supporting pupils with medical needs. I also referred to our guidance ‘Principles of good administrative practice’.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislative framework

Annual reviews

12. The Council’s duties on EHCP Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
• Councils must review an EHCP at least every 12 months;
• Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay;
• The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content;
• When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible;
• Where the council does not agree the suggested changes it may still issue the final EHCP;
• In any event the council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the draft plan. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)

Full-time education

13. 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.
14. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
15. 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)
16. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Delivery of special educational provisions

17. The council has a duty to secure special educational provision specified in an EHC plan for the child or young person. (Children and Families Act S.42)
18. 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)
19. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.
20. If Councils decide it is necessary for child’s special educational provisions to be delivered otherwise than in a school they may arrange for this to happen only if they are satisfied it would be inappropriate for the provision to be made in a school. (Children and Families Act 2014 S.61)

Communication with parents

21. Local authorities must consult the child and the child’s parent or the young person throughout the process of assessment and productions of an EHC plan. They should also involve the child as far as possible in this process. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.21)
22. Local authorities should support and encourage the involvement of children, young people and parents or carers by:

• Providing them with access to the relevant information in accessible formats
• Giving them time to prepare for discussions and meetings, and
• Dedicating time in discussions and meetings to hear their views.

(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24)

What happened

Background

23. Y is seven years old and has a diagnosis of Autistic Spectrum Disorder (ASD).
24. Since starting Reception class in a mainstream school (the School) in September 2020 Y has struggled to attend full time. After a few exclusions, at the meeting in October the school representatives, the Council and Y’s parents agreed he could not cope with more than two hours at school. Parents suggested using the Applied Behaviour Analysis (ABA) for Y.

Education and special educational needs (SEN) support from February 2021 to February 2022

25. In February 2021 the Council amended Y’s EHCP to include an ABA programme offering support within the school day by a dedicated Learning Support Assistant (LSA) trained in ABA techniques. Initially the programme was to be delivered for six hours at home and two hours at school, with the clause on the possibility of change according to Y’s progress. The ABA programme was to be delivered for 50 weeks and considered at the next Annual Review.
26. In February Mrs X secured the ABA tutors for delivering the home part of the programme. The school part could not be delivered as there were no LSA trained in ABA. Mrs X told the Council about this situation.
27. In April Mrs X exchanged communication with the Council about payments for Y’s ABA tutors. She was concerned the tutors may leave if they did not get paid on time, which would affect Y’s education. The Council clarified there was some confusion around Y’s tutoring as Mrs X failed to provide details on costs. A few days after the Council’s email Mrs X explained the ABA tutors charged the Council for the provision from the date of Y’s final EHCP and provided costs of this provision.
28. During the Annual Review in July 2021 the Council reviewed an ABA report, an ABA review of Y’s outcomes for May and June and a Speech and Language Therapist (SLT) report. The meeting notes included conclusions:
• Y’s special educational provisions were effective as he was making progress so they should continue;
• No major changes were required in Y’s EHCP and the Council would be sending a letter to this effect to Y’s parents;
• In mid-September the Council would arrange a three-weekly review meeting to discuss Y’s progress with his ABA programme
• At the end of November or beginning of December the Council would arrange a meeting to review the ABA funding.
29. At the Annual Review meeting Mrs X raised her concerns about:
• the lack of payment for the ABA tutors, which meant that some of them left and others reduced their working hours;
• The school not implementing ABA and not allowing Y’s ABA tutors to visit;
30. Two weeks after the Annual Review meeting the Council sent the parents an Annual Review report.
31. In August and September Mrs X again exchanged email communication with the Council about overdue payments for the ABA tutors.
32. In mid-September the school held a meeting with the Council’s ASD Specialist Teacher to discuss Y’s progress with ABA. Y’s parents were not invited to this meeting. When Mrs X complained and asked for the meeting notes, the Council told her it was an informal and no meeting notes were available. The Council stated the same when responding to my enquiries.
33. From October the ABA consultant visited the School every three or four weeks and Mrs X sent ABA reports to the School to ensure collaboration between education delivered at school and at home.
34. In the first part of November the Council’s ASD service carried out review for Y and prepared a report. At the interim review a week later the Council suggested to end ABA for Y. At the same meeting Mrs X asked for Personal Budget mainly due to the delays in paying the tutors’ invoices. She also presented a list of costs to deliver ABA tutoring and provisions identified in Y’s EHCP. Mrs X reminded the Council the ABA tutors’ invoices for September – November still had not been paid.
35. From mid-December throughout January 2022 Mrs X kept contacting the Council about the ABA tutors’ payments, explaining the extent of their work as well as reporting principles and pointing out negative effects for the family of the tutors not being paid on time.
36. In its response to Mrs X’s complaint at the end of January the Council accepted its failings with:
• the Annual Review process of July 2021 as the Council failed to send Mrs X a no amendment letter;
• payments for Y’s ABA tutors;
• explaining to Mrs X commissioning rules for external providers.
37. In the second part of February Mrs X received a draft EHCP with the ABA provision removed and a letter explaining the Council would stop funding this provision after 15 days from the date of the letter.
38. Responding to Mrs X’s complaint at the same time the Head of SEND admitted the Council failed to clearly outline expectations for Y’s ABA tutors before they started providing their services. Thus the tutors did not send documents and information which caused delays with the payments. The Head of SEND confirmed the decision was taken at the Panel meeting to stop ABA provision for Y.
39. In the email which followed the Council told Mrs X it would be funding full-time 1:1 support for the school to ensure Y’s smooth transition to a full-time education.
40. Mrs X was unhappy about the Council’s decision and let the Council know she intended to appeal and to complain to us.

Education and special educational needs (SEN) support from March 2022

41. In mid-March Mrs X and a few members of the Council’s resolutions team met up to discuss contentious issues:
• Parents stressed Y needed consistency of support to prevent him deteriorating. The school could not offer a full-time trained LSA, but started to recruit. The current LSA was leaving at the end of term. Y’s parents asked for Y’s ABA tutor to be allowed to support Y at school until a new LSA was recruited;
• Y finds it difficult to focus so sending home work for him is not an option;
• The Council could recruit LSA from an agency with SEN trained LSAs;
• Funding for six hours of ABA would continue until the outcome of Mrs X’s appeal.
42. When Y’s LSA was unwell in March Y stayed at home. The Council refused to allow Y’s ABA tutor to support Y at school.
43. At the end of March the School told the Council they found a new LSA for Y to support him in the mornings. The new person was starting from the beginning of April.
44. In the beginning of May the Council provided Mrs X with the notice it would amend Y’s EHCP.
45. Shortly afterwards the Council sent Mrs X its stage three response to her complaints. In this document the Head of SEND stated:
• The Council would continue funding six hours of ABA a week;
• From 5 March Y was to have 1:1 support to attend his school full time;
• The Council confirmed in March it would carry on funding six hours of ABA support at home until Mrs X’s appeal is resolved.
46. In response to Mrs X’s further complaint about the Council’s failure to provide full time education for Y, deliver special educational provisions and delays with sending an amended EHCP, in mid-May the Council arranged a meeting with the parents. The Council accepted things went wrong and agreed to fund 12.5 hours a week of ABA at home.
47. In the middle of June the School advised the Council of its inability to meet Y’s SEN through a full-time placement.
48. In the third week of June the Council issued a final amended EHCP for Y. A few weeks later Mrs X appealed against sections B and F of this plan.

Analysis

Reviews

49. When carrying out Y’s Annual Review in July 2021 and his Interim Review in November 2021 the Council did not follow the due process. This is fault. In particular it failed to:
• send a decision letter following Annual Review in July 2021;
• send a draft amended EHCP to the parents following Interim Review in November 2021;
• comply with the review timescales, and specifically significantly delayed sending a decision letter about planned amendments to Y’s EHCP following the Interim Review as well as a final EHCP.
50. The Council’s faults within review processes caused Mrs X injustice:
• She lacked certainty on the content of Y’s EHCP after the Annual Review in July 2021 as, despite advice received during the review meeting, she did not receive the Council’s ‘no amendment’ letter;
• She could not provide her comments to the Council’s amendments following the Interim Review;
• Her appeal rights following the Interim Review were delayed.

Full-time education

51. In February 2021 the School, the Council and Y’s parents agreed Y could not access full-time education in a mainstream school. The plan was introduced for Y to have his education split between school and home, with two and a half hours of school education and six hours of home tutoring from the ABA tutors.
52. We cannot criticise the Council’s decision taken in February 2022 to amend Y’s EHCP by removing the ABA provision as this will be considered by the Tribunal. Based on the evidence available at the moment I cannot, however, see the Council secured full time education for Y in his school from 5 March 2022 till the meeting in mid-May, when it agreed to continue to fund 12.5 hours of ABA a week at home, for the following reasons:
• Y’s LSA was part-time and only supporting him for two and a half hours each morning;
• In March 2022 the School started recruiting a new LSA of Y but had no guarantee of succeeding; eventually a new LSA started working from the beginning of April but also only in the mornings;
• There is no evidence of professional advice specifying details of extending Y’s school placement to the full day to make it manageable for him;
• In June the School stated it could not meet Y’s SEN through a full-time placement even with a trained full-time 1:1 in place.
53. Lack of provision for a full-time education from 5 March 2022 till mid-May 2022 for Y is fault. Y missed education he should have received. The Council’s fault caused Mrs X distress and impacted her work.
54. When commenting on my draft decision the Council said it has now paid for the ABA tutoring delivered to Y until the end of May 2022. This was corroborated by the evidence attached to the Council’s comments and confirmed by Mrs X. I consider it a suitable remedy for this part of Mrs X’s complaint.

Delivery of special educational provisions

55. As outlined in paragraphs 15 to 18 of this decision councils have duty to ensure all SEP included in the child’s EHCP are delivered.
56. The Council’s failure to consistently deliver Y’s SEP from 5 March 2022 till mid-May 2022 is consequential to its failure to offer him a full-time education. This is because Y’s SEP, by their nature, were to be delivered during provision of his education. Part-time education would not allow for Y to receive the support he needed in line with his EHCP.
57. Although the Council intended for Y to extend his school attendance to full time from March 2022, there is no evidence of consideration for making alternative arrangements to deliver SEP to him until this goal is achieved. For the reasons listed in paragraph 50 it must have been obvious for the Council, that even if eventually it proved possible, it would take time for Y to start attending school full time. Since the School’s response to consultation in June 2022 there could be no doubt it was unrealistic to expect Y to attend the School full time.

Personal Budget and commissioning services from external providers

58. By deciding in February 2021 to fund the ABA tutors identified by Mrs X, the Council, in fact, agreed to deliver this part of Y’s provision through Personal Budget, rather than by commissioning services from the external provider.
59. As explained in the Council’s policy a SEN Personal Budget is money identified to pay for support specified in the EHCP. There are four ways of using Personal Budget:
• The Council controls Personal Budget – this is called an Arrangement or a Notional Budget;
• The person (or their parent) for whom Personal Budget is allocated receives the money directly – this is called a Direct Payment;
• Somebody else manages Personal Budget – this is called a Third Party Agreement;
• Combination of different ways of managing Personal Budget.
60. Before commissioning services from external providers the Council needs to follow due diligence process which consists of:
• Requesting documents from the provider – the documents are listed in the Council’s Due Diligence Process document;
• Obtaining two references;
• Undertaking an Ofsted check where relevant.
61. The due diligence process is likely to be the same when the Council manages SEN Personal Budgets and funds external providers.
62. All the evidence suggests the Council decided to control the Personal Budget for Y’s provisions by funding the ABA tutors. We accept the Council’s processes were complicated by the fact, the ABA tutors started delivering services to Y before the final EHCP was issued and before the Council became responsible for putting provisions in place. This, however, does not explain long-term problems with timely payments for the ABA tutoring.
63. At the Interim Review meeting in November 2021 Mrs X asked for the Council to set up a Personal Budget for her in the form of a Direct Payment. She was concerned about the negative impact of the Council’s delays with paying the ABA tutors’ invoices. I have not seen any evidence of the Council’s consideration of this request, making decision and communicating it to Mrs X.
64. I found the Council’s way of handling payments for Y’s ABA tutoring lacked transparency, which is fault. The Council failed to:
• follow the rules set up in its SEN Personal Budget and Due Diligence documents;
• advise Mrs X on the documents and information needed from the tutors at the early stages of the process;
• consider Mrs X’s request for direct payments.
65. The Council’s fault caused Mrs X frustration. She spent much time unnecessarily sending reminders and attending meetings to discuss outstanding invoices. In the end delayed payments caused one tutor to leave and another one to reduce her hours. This negatively affected Y’s education and progress.

Communication with parents

66. When communicating with Mrs X the Council failed by:
• Lack of transparency about the meeting in mid-September 2021. This meeting was discussed at the Annual Review meeting in July 2021 and the parents were to receive an invitation. Instead only the School’s staff, the Council’s representatives and the ASD Council’s service Specialist Teacher received invitations and took part in it. Lack of meeting notes meant Mrs X had no way of accessing the content of discussions about her child.
• Inconsistency of advice, particularly about funding of the ABA tutoring after 5 March 2022:
1. In February 2022 the Council told Mrs X in its letter the ABA provision would stop after 15 days from the date of the letter;
2. At the meeting in March 2022 the Council said the ABA provision would continue until Mrs X’s appeal is resolved (which would mean six hours a day during term times, so 30 hours per week);
3. In the complaint response from May 2022 the Interim Head of SEND said the Council would fund six hours a week of ABA tutoring for Y;
4. At the meeting in May 2022 the Council said it would fund 12.5 hours a week of ABA at home.
67. The Council’s failings when communicating with Mrs X undermined her confidence in transparency of the Council’s processes. They also caused her distress and frustration.
68. Commenting on my draft decision the Council said it was changing its offer in response to Y’s needs and Mrs X’s concerns. I cannot accept this justification of the changes in the Council’s position for the following reasons:
• There is no evidence Y’s needs significantly changing from March – May 2022;
• All the evidence indicates Mrs X consistently asked for the continuation of the ABA provision to supplement Y’s school education;
• The frequency and timings of the changes in the Council’s position contradict the notion they were driven by any circumstances on Y’s or Mrs X’s part.

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Agreed action

69. To remedy the injustice caused by the faults identified, we recommend the Council within four weeks of my final decision complete the following:
• Send a written apology to Mrs X;
• Make a payment for up to 12.5 hours a week of the ABA tutoring delivered to Y at home during term time from 1 June 2022 till the date of my final decision in accordance with the invoices submitted by Mrs X;
• Pay Mrs X £300 to acknowledge her distress and time and trouble spent on complaining.

The Council should provide us with evidence it has complied with the above actions.

70. We recommend the Council continue to fund any invoiced ABA tuition for Y delivered at home up to a maximum of 12.5 hours per week during term time from the date of this final decision up until the date of the Tribunal decision resolving Mrs X’s appeal.
71. We also recommend the Council within three months of the final decision:
• Review its Annual Review processes to ensure:
1. sending a notification of the Council’s position within four weeks from the Annual Review meeting, and
2. sending the final amended EHCP not later than eight weeks from the date of sending the child’s parents/young person proposed amendments

are part of the process and all front-line staff are aware of this;

• Provide its SEN case officers and managers with the training on SEN Personal Budget.

The Council should provide us with evidence it has complied with the above actions.

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Final decision

72. I uphold this complaint. I found faults which caused Mrs X and Y injustice. The Council accepted my recommendations so this investigation is now at an end.

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Investigator's decision on behalf of the Ombudsman