Summary: Miss X complained her son remains on roll at a school he does not attend and that the Council has failed to provide information about personal budgets. Miss X also complained the Council has delayed in securing the provision set out in her son’s EHC plan. There is no evidence of fault in the way the Council has secured Y’s educational provision. However,the Council’s failure to provide the information Miss X requested and the delay in arranging a meeting to discuss a personal budget is fault. This fault has caused Miss X an injustice.

The complaint

1. The complainant, whom I shall refer to as Miss X complained:

• her son is unlawfully on roll at School 1;
• the Council has failed to provide appropriate information about personal budgets; and
• the Council has delayed in securing the provision set out in her son’s EHCP

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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. 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)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• Miss 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

6. Miss X’s son Y has had an Education Health and Care (EHC) plan for several years. Since 2020 section I of the EHC plan has named School 1 as Y’s placement. Y was not attending School 1 but received a package of Education Otherwise Than At School (EOTAS) arranged by School 1. Miss X appealed to the SEND Tribunal and it was agreed that School 1 would be removed and section I of the plan left blank. The Council then issued an amended final EHC plan in February 2022. This plan increased Y’s provision and left the placement blank.
7. On receipt of the final plan Miss X asked for Y to be removed from the role at School 1 and to discuss the funding arrangements for the provision set out in the EHC plan. The Council noted that while the Tribunal had determined it was not necessary to name School 1 in the plan, the provision would remain the same. It also noted that Miss X had confirmed she was satisfied with the provision currently provided. School 1 would therefore continue to provide Y’s education and oversee his progress.
8. Since January 2021 Y had received 1:1 tuition at home, initially online and then in person. He received 6 hours of maths and computing tuition with a tutor Miss X had identified and an hour’s tuition with a tutor identified by School 1.
9. Miss X did not consider it appropriate to continue with the present arrangement. Most importantly, she asserted Y should be removed from the roll as he could no longer be a registered pupil at School 1.
10. Miss X asked the Tribunal to confirm whether Y could, as the Council maintained, be a pupil at a particular school when the school’s name had been removed from the EHC plan and section I intentionally left blank. The Tribunal service confirmed it had no jurisdiction to consider this issue and it could not give legal advice.
11. In March 2022 Miss X arranged a meeting with the head teacher at School 1 to discuss Y’s provision. She did not consider it feasible to implement the full 13 hours provision specified in the latest EHC plan immediately but suggested an engineering tutor could be a start. Miss X also noted Y had fallen out with his maths tutor and asked about a replacement as Y was not currently receiving this provision.
12. At the meeting Miss X and the head teacher agreed Y’s English tutor would provide an additional session and an engineering tutor would build bikes with Y for two hours a week. It was also agreed that when Miss X felt it was appropriate they would reinstate the maths tuition and further extend the English provision.
13. Y’s EHC plan specified three hours a week of therapeutic physical provision with adult support. Y had recently started working with a personal trainer (PT) and Miss X asked School 1 to fund the sessions with the PT and a family gym membership so that she could help Y access the gym. School 1 confirmed they would look into the gym membership and asked for the PT’s details.
14. The engineering tutor began working with Y in April 2022. Miss X chased School 1 for details of the gym membership and confirmation of how the PT would be paid. School 1 confirmed it was waiting for the gym to invoice them and would set them up as a new supplier. It would also have to set the PT up as a new supplier to be able to pay them.
15. Miss X made a formal complaint about the Council’s refusal to remove Y from the roll at School 1 and the failure to provide information about personal budgets and the funding allocated for the provision specified in his EHC plan. Miss X confirmed she was not rejecting School 1 as an EOTAS provider but challenged the decision that Y should be on the roll. As Y’s EHC plan no longer named School 1 she asserted it was wrong in law for Y to be on roll there.
16. The Council confirmed Y was not a pupil at School 1 and was not expected to attend. He was on the roll for administrative purposes only so that the agreed education package could be provided by School 1.
17. In its further response in May 2022 the Council noted tuition was in place for two hours per week of English and two hours of practical/ technology based learning. The aim was to increase this, but it would be at a pace Y could manage. It also noted School 1 was in the process of securing access to a local gym and sessions with a PT.
18. The Council noted the Tribunal findings did not specifically say that a child cannot be registered at a school which can meet the needs specified in the EHC plan and has agreed to do so without expecting the child to attend the school. The Council asserted there was no legal reason why a child could not be on roll if a school was able to meet the needs as described in the EHC plan. Being on roll at School 1 was a mechanism by which the school, who were providing elements of the EHC plan could receive funding to do so.
19. In relation to personal budgets the Council acknowledged Miss X had raised this in February 2022, following the Tribunal but the Council had not responded adequately. It noted there was information on the Council’s website about personal budgets and direct payments but this did not include information on how to request a personal budget, eligibility criteria or the decision making process.
20. The Council upheld Miss X’s complaint and apologised. It also confirmed it would improve the information available on its website and that an officer would contact Miss X to discuss her request for a personal budget.
21. As Miss X was not satisfied with the Council’s response, she has asked the Ombudsman to investigate her complaint. Miss X maintains it is unlawful for Y to be on roll at School 1 and he should be taken off roll immediately. She says Y rejects anything to do with schools and School 1 in particular so all contact and connections with School 1 has to be kept from him. Miss X is also concerned that School 1 is constrained by bureaucracy and red tape so that there are relatively few options open to her son regarding agency tutors. This has meant that the bespoke provision set out in his EHC plan has taken months to set up.
22. In response to my enquiries the Council states it is under a duty to arrange Y’s special educational needs provision. It is satisfied it has appropriately exercised its discretion by arranging this provision through School 1. The Council considers it appropriate and necessary that Y remain on the roll at School 1. This ensures funding can be provided, allows his attendance to be monitored, and for the provision to be delivered via EOTAS to be arranged, managed, and supported. It also ensures safeguarding arrangements are in place to ensure Y’s needs are addressed and supported.
23. The Council notes that while a parent has a right to request a personal budget, this is not automatically granted. It considers it unlikely a personal budget would be agreed given the nature of Ys needs and the suitability of the current package.
24. It apologises for the delays in arranging a meeting with Miss X to discuss her request for a personal budget. The Council states it has experienced an unprecedented demand, with increased numbers of statutory requests and staffing shortages which has led to some delays. It has now arranged a meeting with Miss X and will consider her request in accordance with its policy.
25. In relation to the provision, the Council states Y has accessed the EOTAS package successfully and has engaged well with sustained good attendance since January 2021. It states Y receives:
• English tuition for two hours a week.
• Computing for one hour a week;
• Engineering for one hour a week;
• Bike building sessions for two hours a week;
• Gym membership; and
• 10 sessions with a personal trainer.
26. The Council states School 1 has offered to increase the English tuition but Miss X does not feel Y is ready for this yet. It also notes Y was accessing maths tuition but this has been limited since his tutor raised concerns in February 2022. Miss X did not want the tutor replacing immediately but agreed at the annual review in July 2022 for a new maths tutor to be sourced. This tuition was due to recommence in September 2022 but the tutor withdrew at the last minute. Another tutor has been identified, but the Council states Miss X has declined this offer. It states the Council and School 1 are looking for a resolution.
27. Miss X disputes that the Council has arranged a meeting to discuss her request for a personal budget. She says the Council has instead provided inaccurate information about how to obtain a personal budget.

Analysis

28. Miss X and the Council have differing views on whether Y can be on roll at School 1 when he does not attend the school and the placement section of his EHC plan is blank. Miss X asserts this is unlawful, while the Council maintains there is no legal reason why Y cannot be on roll.
29. I am unable to resolve this issue. The Ombudsman’s role is distinct from that of the Courts, and as such we are unable to adjudicate on issues of law or interpret legislation. Such issues fall within the remit of the Courts and are therefore outside the Ombudsman’s jurisdiction.
30. Y has received an EOTAS package arranged by School 1 since January 2021 and the documentation provided suggest Y has engaged well with this. There is no evidence Miss X considered the provision inadequate or unsuitable. I also note that Miss X did not consider it feasible to immediately increase to the full 13 hours provision specified in Y’s EHC plan in February 2022. She also asked to defer the resumption of maths tuition in March 2022 and has declined additional English tuition.
31. The records suggest it took longer than it could have to set up the gym membership and funding for PT sessions. But I do not consider the Council or School 1 were solely responsible for this delay.
32. The Council acknowledges it did not respond to Miss X’s requests for information regarding a personal budget in a timely manner. And having agreed in May 2022 to arrange a meeting to discuss this request there has been further delay in actioning this. I consider the failure to provide the information requested and the delay in arranging a meeting to be fault.
33. I recognise the Council will now arrange to discuss Miss X’s request for a personal budget, but the delay in doing so has caused her frustration and distress and put her to unnecessary time and trouble in pursuing this matter. The Council should ensure this meeting takes place without further delay.

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Agreed action

34. The Council has agreed to apologise to Miss X and pay her £100 in recognition of the frustration and distress she has experienced and the time and trouble she has been put to by the delay in providing information and in arranging a meeting to discuss a personal budget.
35. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

36. There is no evidence of fault in the way the Council has secured Y’s educational provision. However, the Council’s failure to provide the information Miss X requested and the delay in arranging a meeting to discuss a personal budget is fault. This fault has caused Miss X an injustice.

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Investigator's decision on behalf of the Ombudsman