Summary: Mrs X complained that the Council delayed in completing her daughter’s Education, Health and Care Plan and it was incomplete when issued. The Council also delayed in determining a suitable educational package. We find that the Council has been at fault, causing injustice to Mrs X and her daughter. The Council has agreed the recommended ways to remedy the complaint. We have therefore completed our investigation and are closing the complaint.

The complaint

1. The complainant, whom I refer to as Mrs X, complained that:
• the Council delayed in issuing a final Education, Health and Care (EHC) Plan for the complainant’s daughter (Y), the request being made on 13 January 2022, but the final EHC Plan was not issued until January 2023, way beyond the statutory 20 weeks’ timescale;
• the final EHC Plan was not complete, and the complainant was told it was only issued because of the earlier delays but that the final EHC Plan would be amended. However, it has not been;
• the Council has delayed and not dealt properly with the complainant’s request for a personal budget and Education Otherwise Than At School (EOTAS);
• the complainant’s daughter, Y, has been without suitable education since September 2022 when the Council accepted responsibility to provide this. Previous to this, it was considered the complainant was home educating;
• there has been no joint working with health; and
• there has been poor communication, with the Council consistently not responding to the complainant’s emails or telephone calls.
2. The Council accepted in the summer of 2022 that it had delayed in assessing Y and in issuing an EHC Plan, after the complainant made a formal complaint. But the complainant says that this did not improve matters and she had to wait a further six months before the final EHC Plan was issued.
3. The injustice is that Mrs X has been put to avoidable time and trouble in trying to resolve matters, and avoidable distress/frustration. Y has also not received a suitable EOTAS package which means she is not receiving a flexible educational package suitable for her complex medical needs. The complainant also has not had the use of a personal budget.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
5. The Ombudsman can consider complaints of a service failure. The Ombudsman’s view, based on caselaw (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407), is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved.
6. We may conclude that service failure has occurred, causing an injustice, in the absence of any specific fault in the council’s policy or procedure. This might be the case where there is an absence of key staff or the inability to recruit key staff or market forces prevent a statutory duty being delivered.
7. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault, and we may recommend a remedy for the injustice caused.
8. 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.
9. 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.
10. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
11. 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)
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 the final decision with Ofsted.

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What I have and have not investigated

13. I am investigating matters from January 2022 when Mrs X requested a special educational needs assessment of Y.
14. Mrs X had a right of appeal to the SEND Tribunal in January 2023 when she received the final EHC Plan. The complainant did not pursue this option because she says that she was told the Council would be amending the Plan to include the EOTAS and personal budget details. I have decided that the complainant had good reasons not to pursue her appeal right, at this time, because she was led to believe that the EHC Plan would be amended shortly. Accordingly, I have exercised the Ombudsman’s discretion to investigate the Council’s actions after the issue of the final EHC Plan.
15. I am not investigating any complaints about the health authority.

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How I considered this complaint

16. I made enquiries of the Council, have considered Mrs X’s written information and I have spoken to Mrs X on the telephone. I issued a draft decision statement to the Council and to Mrs X and have taken account of their further comments when reaching a final decision.

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What I found

What should have happened

17. 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 Special Educational Needs and Disability (SEND) Tribunal can do this. The EHC Plan should be completed within 20 weeks of the request, subject to some exceptions. Decisions to assess should be made within 6 weeks of the request.
18. 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 2014). The special educational provision is detailed in Section F of the Plan. Section J should set out details of the personal budget.
19. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Councils must review EHC Plans at a minimum once every 12 months.
20. A parent may request an early review of an EHC Plan if they believe a child’s needs have changed or the plan is no longer meeting the child’s needs. This could include where a school placement has broken down.

Personal budgets

21. A personal budget is an amount of money identified by a council to deliver provision set out in an EHC Plan where the parent or young person is involved in securing that provision. Councils must provide information that sets out a description of the services across education, health and social care that lends itself to the use of personal budgets.
22. Councils should prepare a budget when requested. Parents/carers can ask for a personal budget when an EHC assessment confirms that a council will prepare an EHC Plan or during a statutory review.
23. Parents/carers can be involved in securing provision through the use of direct payments, or an arrangement where the council or school hold the budget, or third party agreements where direct payments are managed by an individual or organisation, or a combination of the above. Parents/carers should be given an indication of the level of funding at the planning stage. The final allocation of funding must be sufficient to secure the agreed provision and should be set out in section J of the draft EHC Plan.
24. If a council refuses a direct payment, it must explain its reasons in writing to the parents/carers and inform them of their right to ask for a review of the decision.
25. Direct payments are governed by separate regulations-the Special Educational Needs (Personal Budgets) Regulations 2014.

Children who cannot attend school for medical reasons

26. 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. Statutory guidance confirms that, while there is no legal deadline to start alternative provision, it should be arranged as soon as it is clear that a child will be absent for health reasons for more than 15 days.
27. 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)
28. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
29. 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’)

Key facts

30. This is a brief account of what happened.
31. Y has a serious debilitating condition, chronic fatigue syndrome (CFS), which seriously limits her abilities to engage in formal education and social events. She also suffers from severe headaches and pain. Mrs X took Y out of school when at primary school and home educated her.
32. Mrs X arranged and paid for online tuition for Y, when at primary school, which enabled her to access education in her own time. Y will be in Year 11 in September 2023 (her General Certificates of Education, GCSE, year). Mrs X says that Y is academically behind. Y wants to pursue a career working with animals and would like to undertake an animal management course post-16.
33. The Council was aware that Mrs X was home educating because she told it. The Council says that the Elective Home Education (EHE) team visited and was satisfied the education was suitable.
34. Mrs X requested a special needs assessment of Y in mid-January 2022. The Council says that both social care and health were consulted as part of the assessment. Social care said that there had been no response from the family and health said that there was no new information to add, which changed previous recommendations.
35. In July 2022, the Council upheld Mrs X’s complaint to it about the delay in completing the EHC process at Stage 1 of its complaint procedure. The Council also told Mrs X of its efforts to prevent these delays, recruiting more staff to manage the SEN department and using locum Educational Psychologists (EPs).
36. An EP completed her assessment of Y in mid-September 2022. In mid-November, the Council’s Panel agreed that an EOTAS package was appropriate and a draft EHC Plan was issued. The Council says there was a discussion with the family about the EOTAS package. Mrs X says that she asked for a meeting, but she says that this was refused.
37. The EP stated that Y required a bespoke package which allowed for home learning, with Y taking a reduced number of subjects with short bursts of learning and frequent rest breaks.
38. In December 2022, Mrs X sent a detailed account to the Council of what was required in the EOTAS package. But the Council says that this was not received. In January 2023, Mrs X sent again a detailed account of what was required in the EOTAS package and the costs (amounting to approximately £6,600 per annum).
39. Decisions about whether an EOTAS package is appropriate are made by a Panel, consisting of a range of professionals. Decisions about funding are made by a Panel, consisting of the Head of the SEN department, Service Manager and a specialist commissioning officer.
40. The final EHC Plan was issued at the end of January 2023. Mrs X says that the Plan was not complete because it did not have details of the EOTAS package and personal budget (at Section J), which she had requested. Mrs X says the Council told her the Plan was only issued because of the earlier delays but the final Plan would be amended to include details of EOTAS and personal budget. Mrs X believed that this would happen without further delay.
41. In March 2023, the Council agreed the continuation of the online tuition package, which Mrs X had commissioned and paid for.
42. The Council has accepted that the EOTAS package should have been more clearly set out in the final Plan, and Section J should have contained details of the personal budget. The Council says that, when the Panel has made its decision about EOTAS and the amount of personal budget, the Council will review the current EHC Plan and, if necessary, amend it.
43. The Council says that its EHE team was only aware in February 2023 that the home education had ceased when that team heard about the proposed EOTAS package. The Council says that it has now amended its procedures so that parents can tell the Council, when they have ceased home educating, by completing an online form.

Findings: Complaint (1): the Council delayed in issuing the final EHC Plan

44. The Council has accepted that it delayed issuing a final EHC Plan and has explained the reasons for this (shortage of SEN staff and EPs and an increase in the requests for assessment). The Council says that it is taking action to resolve these difficulties.
45. The final EHC Plan should have been issued by June 2022. It was issued some seven and half months later. My view is that this is fault. The injustice is that Mrs X has had to chase up the Council and it has caused her avoidable distress and frustration. She has also lost out on her right of appeal to SEND Tribunal.
46. I also consider that it is fault that, even after Mrs X had complained in June 2022, and the Council upheld her complaint about delay, there was still further delay in issuing the EHC Plan. A council’s complaint process should aim to resolve complaints, so that it may not be necessary for parents/carers to complain to the Ombudsman.

Complaint (2): The final EHC Plan was not complete, and Mrs X was told it would be amended

47. The final EHC Plan was not complete because, when issued, the Council had not decided on details of the EOTAS package or accompanying personal budget. I recognise the Council did not want to delay the issue of the final EHC Plan, given the earlier delay. But I consider that it is fault to issue an incomplete Plan especially when the Plan is only incomplete because the Council has delayed in making key decisions. Details of the personal budget should also have been in section J as should details of the special educational provision have been set out in section F.
48. The Council also delayed in amending the current Plan. As of July 2023, the Council was still reviewing and considering whether to amend it. That is fault.

Complaint (3): the Council has delayed in dealing with Mrs Y’s request for EOTAS and a personal budget

49. My view is that the Council has delayed in making decisions about EOTAS and the personal budget. The Council has been aware of the need and request for this since it issued a draft EHC Plan in November 2022. I consider that the Council was at fault in its slow decision making in respect of these matters.
50. It is also the case that Mrs X had asked for a laptop for Y as part of the personal budget, but this has not been agreed.
51. However, the Council has paid for the online tuition since September 2022 (backdating the payment) in accordance with what Mrs X had already arranged. Had Mrs X not done this, Y could have been without an appropriate package.

Complaint (4): Y has been without suitable education since September 2022

52. In March 2022, the Council was aware that Y required a special needs assessment and was at home, without a school place. Prior to this, it was accepted that Y was being home educated.
53. Because of Mrs X’s efforts, Y was being provided with online tuition, which the Council has regarded as suitable. I recognise that Mrs X was paying for this. But I cannot see evidence that she asked the Council to meet this cost until September 2022.
54. However, by September 2022, the Council was clearly aware that Y could not attend school for medical reasons, and its duty to provide alternative education under s19 was triggered at that point. My view is that the Council’s duty to provide alternative education was triggered in September 2022, and Mrs X should have been told this. It is fault that she was not told.
55. The Council has back dated the payment for the online provider to September 2022, so Mrs X is not out of pocket and Y has received an alternative education. But Mrs X has had the avoidable stress of waiting for the Council to accept responsibility.

Complaint (5): there has been no joint working with health

56. The Council says that it did contact health when seeking professionals’ views for the EHC Plan. On that basis, I am satisfied that the Council consulted the health service appropriately. I cannot comment on the health authority’s actions. Therefore, my view is that there is no fault by the Council.

Complaint (6): that the Council has consistently not responded to Mrs X’s communications

57. The Council has accepted that this is the case. Inevitably, this fault has led to Mrs X experiencing avoidable frustration, distress and time and trouble.

The Ombudsman’s guidance on remedies (2022)

58. When someone has suffered injustice, we try to put them back in the position they would have been but for the error. Our focus is on restoring services that have been denied. Where that is not possible, we will try to think of remedies that acknowledge the impact of the faults.
59. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
60. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
61. Where there has been a loss of education, we recommend symbolic payments of between £900 to £2,400 per term.

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Agreed actions

62. Mrs X has suffered injustice as a result of the faults identified. To remedy this, the Council has agreed that within one month of the date of the final statement, it will:

• issue a final EHC Plan which sets out the full details of the EOTAS package (section F) and details of the personal budget (section J). Mrs X can then appeal if she considers the Plan is inadequate;
• apologise in writing to Mrs X for the faults identified in this statement;
• make a symbolic payment of £500 for the avoidable distress and frustration;
• pay £500 for the faults in the Council’s complaint handling which meant Mrs X had to complain to us;
• it seems that Y has not missed out on education because Mrs X arranged the online tuition, and the Council has paid for this since September 2022 (if not, the Council should make a backdated payment). However, in recognition of the avoidable stress and uncertainty Mrs X experienced in her efforts to secure education for her daughter, which might not have been necessary if the Council had accepted its duty to provide this in September 2022, I recommend a payment of £500 for her time and trouble;
• reconsider Mrs X’s request for reimbursement of a laptop for Y;
• in respect of service improvements, the Council has already agreed on another recent complaint (22 009 574) to remind staff to adhere to SEN timescales and to respond promptly to parents/carers’ communication. But, the Council has agreed to remind relevant SEN staff and the Council’s Panels of the need to agree an EOTAS package and personal budget within the timescale required for the completion of an EHC Plan.

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

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Final decision

64. There has been fault causing injustice. The Council has agreed the recommended actions and therefore I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman