Summary: Ms X complained the Council failed to provide her son, F with Education otherwise than at school (EOTAS) provision in line with his Education, Health and Care (EHC) plan following orders from the SEND tribunal in May 2022 and delayed agreeing a personal budget. The Council was at fault. It did not have a plan to start providing F with EOTAS provision following the tribunal orders and delayed agreeing a personal budget until November 2022. It meant F did not start receiving provision until January 2023. The Council has agreed to backdate F’s personal budget payments to June 2023 and pay Ms X £500 to acknowledge the distress and time and trouble caused.

The complaint

1. Ms X complains the Council has failed to provide her son, F with provision in line with his Education, Health and Care (EHC) plan following orders from the SEND tribunal in May 2022. She further complained the Council delayed carrying out the annual review and delayed providing her with a personal budget to fund F’s provision.
2. Ms X says F went without educational provision he was entitled to until January 2023. She said the matter has caused both her and F distress, uncertainty and time and trouble.

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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. 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.
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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)
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 to Ms X about her complaint and considered information she provided.
9. I considered the Council’s response to my enquiry letter.
10. Ms X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Education, Health and Care Plan (EHC) Plan

11. Children with complex needs may require an Education, Health and Care (EHC) plan. This is a legal document which sets out a description of a child's needs (what they can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
12. Councils are responsible for making sure all the arrangements set out in in the EHC plan are put in place.
13. The Council has a legal duty to ensure the educational and social care support set out in a final EHC plan is delivered. This duty is non-delegable.
14. Councils should review an EHC plan at least every 12 months. This is not affected by any ongoing SEND tribunal appeals.

Education Other Than At School (EOTAS)

15. Councils have a duty to provide educational provision which meets the needs of children and young people who, for whatever reason, are unable to attend a mainstream or special school.
16. For children and young people with an EHC plan, the EOTAS provision must be covered in section F of an EHC Plan which should detail the package of education being provided.

The SEND tribunal

17. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
18. When the SEND tribunal has ordered a Council to amend the special educational provision in the EHC plan, the Council must issue the amended plan within 5 weeks of the order being made.

Personal budgets and direct payments

19. Once a child or young person has an EHC plan the Council must ensure the support set out in the plan is made for the child or young person. Normally, the Council will do this by providing the necessary funding to the school or college attended by the child or young person, in order for them to deliver the educational support needed. However, it is also possible for the Council to consider making a payment to the parent, the young person or another nominated person, so that they can organise the provision themselves. This is called a direct payment.
20. In order for the parent or young person to request a direct payment, the LA must first identify a personal budget.
21. The child or young person’s parent has a right to request a personal budget when then Council has completed an EHC assessment and is preparing a draft plan or during an annual review.

What happened

22. Ms X has a son, F, who has special educational needs (SEN) and a diagnosis of autism. F has an EHC Plan and in 2021 attended an independent school which catered for primary school age children with SEN. In July 2021 the Council became aware that School A was ending its primary school age provision. As such, F’s placement at School A was also ending.
23. Following an annual review the Council issued F’s final amended EHC plan which named School A in section I. Ms X asked the Council for an EOTAS package of support for F and a personal budget which the Council refused.
24. Ms X submitted an appeal to the SEND tribunal. Ms X appealed against the naming of School A and said the Council had not identified any other settings. Ms X said she wanted section I left blank and wanted section F amended to set out an EOTAS package of provision.
25. The SEND Tribunal heard Ms X’s appeal in March 2022. We have investigated Ms X’s complaint about a lack of alternative provision for F in the period prior to the tribunal hearing and provided an appropriate remedy. This complaint is about matters following the conclusion of the SEND tribunal.
26. The tribunal issued its decision in May 2022. It ordered the Council to amend F’s plan to include an appropriate package of EOTAS and to leave section I blank. The tribunal order stated that its was for the Council and not the tribunal to resolve the specific content of an EOTAS package.
27. The Council issued F’s amended EHC plan at the end of June 2022 which was within 5 weeks of the tribunal’s order. The amended plan outlined provision F was entitled to which included:
• Weekly speech and language therapy (SALT) sessions
• Full time one to one support
• Specialist resources and equipment
• Structured sessions to help his social, emotional and mental health difficulties
• An initial 14-week programme with an Occupational Therapist (OT) to be reviewed at its conclusion for the need of further therapy.

The plan did not name an educational placement with section I left blank.

28. Internal email records show a senior officer allocated F’s case to an officer acknowledging the tribunal had ordered EOTAS but two issues remained, these being the personal budget and the annual review. The officer discussed the personal budget which Ms X had already proposed but decided some of it was not in line with provision outlined in section F. The officer proposed that F could attend its bridging unit which could provide some of the provision via a tutor from September 2022 onwards and that it would separately commission an OT and SALT. The officer acknowledged that F’s annual review was meant to take place in May 2022 and was therefore overdue. They said the purpose of the annual review was to determine how to deliver the EOTAS package. The Council informed Ms X of its intentions.
29. Ms X complained to the Council. She complained the Council had not considered her request for a personal budget and had not followed tribunal orders.
30. The Council responded and said it would consider Ms X’s request for a personal budget at the annual review which it acknowledge was late and apologised. It said relevant law and guidance prevented it from considering her request outside of the annual review. The Council said it would discuss how best to provide EOTAS at the annual review which it would arrange soon. It offered to arrange tuition through its home bridging in the interim. Ms X escalated her complaint to stage 2 of the Council’s procedure.
31. The Council held F’s annual review in mid-August 2022. Ms X suggested changes she wanted to the EHC plan and an updated personal budget request which included various services and provision for F to access as part of the EOTAS package.
32. The Council responded to Ms X at stage 2 of its complaint’s procedure. It said it issued the final plan following the tribunal order in line with timescales but acknowledged it included some errors which it had rectified. With regards to Ms X’s personal budget, it said it was considering the proposal and would issue a notice of amendment in due course.
33. In September 2022 the Council sent Ms X an amended draft EHC plan which took into consideration some of her suggested changes and included the proposed personal budget. The proposed personal budget was lower than that proposed by Ms X. Ms X sent the Council another proposed amended personal budget.
34. In October 2022 Ms X instructed a solicitor who wrote to the Council citing it had failed to properly issue F’s EHC plan in line with tribunal orders and had further failed to finalise the personal budget.
35. In November 2022 the Council issued F’s final amended plan with a revised personal budget which Ms X was satisfied with. The agreed personal budget equated to around £3200 per month.
36. Ms X remained unhappy and complained to us. She said F remained without provision in line with his EHC plan following the tribunal orders in May 2022. She said provision did not start until January 2023.

The Council’s response to our enquiries

37. The Council acknowledged it should have held F’s annual review in May 2022 and accepted the matter being with the SEND tribunal did not discharge its duty to hold it at the relevant time.
38. The Council said it discussed Ms X’s request for a personal budget at the annual review, cross referencing her request with the provision ordered by the tribunal. It said there were delays in agreeing the personal budget but disputes it did not properly consider the request.
39. The Council accepted F had not had provision in place following the tribunal orders. The Council has offered to backdate the agreed personal budget payments to 29 June 2022 when it issued the final plan following the tribunal orders.
40. The Council further accepted that the OT provision was outside of the agreed personal budget and it acknowledged it delayed arranging this provision which started in January 2023.
41. The Council further offered to pay Ms X a total of £500 to acknowledge the distress and time and trouble this matter caused her.

My findings

42. Following the conclusion and orders of the SEND tribunal, the Council had five weeks to issue F’s amended EHC plan, which it did. The tribunal orders were clear in that the Council should amend the plan to reflect EOTAS and it was for the Council to decide the specific content of the EOTAS package. However, it had no plan around how it would provide F’s provision as outlined in section F after this date which meant F was unable to receive the provision from this date. The failure to provide F’s provision from the date it issued the final plan in June 2022 was fault.
43. The Council has accepted fault for not holding F’s annual review in May 2022 as it should have done. This caused a delay in resolving the personal budget. Had the Council held it in May 2022 it would have been able to discuss Ms X’s personal budget request earlier and would likely have been in a better place to start delivering F’s provision on time, or earlier at the very least.
44. The Council did not agree F’s personal budget until November 2022 which contributed to F being unable to start receiving any of his provision, including SALT and OT until January 2023. The identified faults meant F went without provision he was entitled to following the tribunal’s orders for 18 academic weeks. It also caused Ms X distress and time and trouble.
45. The Council has proposed to backdate F’s personal budget to 29 June 2022. This means Ms X will receive over £10,000 in back payments. It will allow her to use these back payments to reimburse any personal expenditure used since June 2022 to self-fund F’s provision and to help him catch up on missed provision as she sees fit. The Council has also offered to pay Ms X £500 to acknowledge the distress and time and trouble caused to her. Both of these proposals are suitable to remedy the injustice caused, in line with our guidance on remedies and not something we can improve on.
46. I have considered whether to recommend service improvements in light of the faults found. The Council is currently under a statutory direction from Ofsted to improve its SEND service provision. The action plan in relation to this includes timeliness of annual reviews, completion of EHC plans and the commissioning of provision for OT and SALT. Therefore, I am satisfied there is already sufficient oversight from Ofsted in relation to improving service in these areas.

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Agreed action

47. Within one month of the final decision the Council agreed to:
• Backdate and pay Ms X all of F’s missed personal budget payments since June 2022 to acknowledge F’s loss of provision in line with his EHC plan between June 2022 and January 2023. The Council should allow Ms X to use these back payments to reimburse any personal expenditure used since June 2022 to self-fund F’s provision and to help him catch up on missed provision as she sees fit.
• Pay Ms X £500 as proposed to acknowledge the distress and time and trouble caused to her by the faults.
48. Within two months of the final decision the Council agreed to:
• Review how it considers and deals with EHC plan cases with the SEND tribunal. It should ensure it has processes in place to ensure it is able to start providing provision in line with any tribunal orders by the statutory timescales after an order is given.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I completed my investigation. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman