Summary: The Council’s delay making the provision in Child B’s Education, Health and Care plan was fault. The Council has agreed to apologise, provide services, make payments to Child B and Ms X, and act to improve its services.

The complaint

1. Ms X complained about the Council’s handling of her child’s Special Education Needs. In particular, that the Council:
1. Delayed completing an assessment for an Education, Health, and Care Plan in April 2021
2. Failed to provide suitable alternative education when her child was unable to attend school from April 2022
3. Delayed finding a suitable school after issuing the EHC Plan in June 2021
4. Failed to conduct an annual review of the EHC Plan in June 2022.
5. Delayed making or failed to make all the provision ordered by the Tribunal after its decision in October 2022
2. As a result, Ms X says her child only received about 6 weeks of education in the whole academic year and continues not to receive all the provision in the EHC Plan.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
7. Therefore, I have not investigated the complaints at b) and c) above. This is because Ms X used her right of appeal to the Tribunal. We cannot investigate matters already considered by a Tribunal.
8. 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)

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How I considered this complaint

9. I spoke to Ms X and considered the information she provided.
10. I made written enquiries of the Council and considered its response along with relevant law and guidance.
11. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
12. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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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What I found

Education Health and Care plans

14. 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.
15. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) says the whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks.
16. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment. (The Code 9.47)
17. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
18. The council has a duty to secure the specified special educational provision in Section F of 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)
19. Where the Tribunal orders a council to amend an EHC plan, the council shall amend the EHC plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014)

What happened

20. Ms X’s child, whom I shall call Child B, has Special Education Needs (SEN). Child B has conditions which impact on their behaviour and ability to engage in mainstream education.
21. In April 2021, the Council started to assess Child B for an EHC plan. It asked the NHS for an Occupational Therapy report about Child B. The NHS said Child B did not meet the criteria for an assessment by its service. Ms X paid for a private OT report to inform the EHC plan.
22. The Council sent Ms X a draft plan in June. Ms X was unhappy with the plan. She asked the Council to issue the final plan so she could use her right of appeal to the Tribunal.
23. The Council issued the final EHC plan at the end of June. In August, Ms X appealed to the Tribunal about Sections B, F, and I of the plan. She wanted the Council to name a special school for Child B.
24. In December, the Council agreed to name a special school in Section I. Ms X and the Council agreed to a stay of the Tribunal proceedings to work on sections B and F of the plan.
25. In April 2022, both the school and Ms X told the Council that Child B was not managing at school. Child B did not go to school at all after April 2022. As a result, Ms X amended her appeal to the Tribunal. She asked for Section I to say that Child B would have Education Otherwise Than at School (EOTAS).
26. Ms X complained to the Council in July. She said the Council had not done an annual review of the EHC plan in June 2022.
27. A tutor started working with Child B in September.
28. The Tribunal decided the case in late October 2022. It agreed that Child B needed EOTAS. Of relevance to this complaint, it said Child B’s provision should include:
• 15 hours a week of curriculum based learning, provided by a qualified teacher
• 10 hours a week of alternative provision, including PE and therapies and activities like Forest School
• Occupational Therapy (OT)
• Speech and Language Therapy (SALT)
• 2 adults to support Child B at all times, both of whom should have training on Child B’s conditions
• A suitably adapted learning environment which is “low arousal”, which has a safe place for Child B to escape to and which addresses Child B’s sensory needs
• Appropriate technology and software to support Child B’s learning needs
• Visual aids personalised to Child B’s needs
• The tools, activities, and supplies needed to teach Child B
• An educational trip once a term
• A Multi-Disciplinary Team (MDT) meeting every six weeks to review Child B’s needs and progress
29. Ms X contacted the Council throughout November to ask about funding for the provision and the Council’s view on how it could provide a suitable learning space. It told Ms X senior managers would have to agree the funding.
30. Ms X asked the Council if the tutor providing Child B’s 15 hours of learning could be funded for the full 25 hours. This was because Child B had built a good relationship with the tutor. Ms X asked how the Council would make sure it had the provision in place by the time it issued the final EHC plan.
31. In early December, the Council issued the amended final EHC plan ordered by the Tribunal. At that point Child B had 15 hours of provision from a tutor. There was no teaching assistant (TA) so Ms X acted as the second adult required by the plan.
32. Ms X asked the Council to source a SALT. She told it she had found an OT and provided a quote. Ms X told the Council she had difficulty securing a TA. This was because without knowing how much the Council agreed to pay for it, it was difficult to advertise.
33. In late December, the Council sent Ms X a document setting out the provision required by Section F of Child B’s EHC plan, how the Council intended to meet this, and what it would fund. Of relevance to this complaint, this set out:
• £45 an hour for the tutor for the first 15 hours, and £35 an hour for the additional 10 hours
• £20 an hour to pay a TA
• 21 hours of OT a year. The Council had not accepted Ms X’s quote and was looking for other providers to compare costs. It notes that responses so far indicated either no capacity or higher costs than Ms X’s quote.
• no hours or costs for SALT yet
• a workstation in Ms X’s home with screening boards and a pop-up tent to use as a safe space would meet Child B’s needs for a learning environment
• the Council would “consider a budget” for materials and resources if Ms X provided receipts or quotes
34. Ms X replied the same day explaining why the Council’s proposal for a learning environment was unsuitable. She explained that her home was open plan, so Child B had to learn in the living area which was also the through-route of the home. Ms X’s other children needed access to the space and the activities of daily living going on around Child B meant it was not the “low-arousal” environment ordered by the Tribunal.
35. In January 2023, Child B started attending Forest School on a one-to-one basis. The Council agreed to fund this until the February half-term, when it would review whether Child B could start the small group sessions. The tutor’s hours increased to 25.
36. Ms X provided an updated quote to the Council for OT provision. She again raised the issue of Child B’s learning environment. Ms X also asked the Council to increase the hourly rate for the TA because she could not secure one at the rate agreed.
37. Ms X invited the Council to visit her home to assess the space available and demonstrate why it was unsuitable.
38. In mid-February, Ms X asked the Council what information it needed to assess whether Child B needed Forest School to continue one-to-one. She provided a report from the Forest School the next day advising that Child B should continue to have one-to-one sessions.
39. In early March, Ms X asked the Council for a meeting to discuss Child B’s provision. The Council attended a meeting in Ms X’s home in late-March. The Council later sent Ms X a summary of this discussion which said:
• Ms X and Child B’s tutor had explained why the current space cannot be made into the “low arousal” environment required
• The Council said its Senior SEN Officer would be Ms X’s single point of contact going forward. It said this should reduce the time between requests for and agreement of funding.
• The Council would send Ms X a spreadsheet setting out the current agreed funding.
• The OT had completed an assessment and was waiting to hear if the Council agreed to fund the ongoing support. The Council agreed this in the meeting.
• Ms X highlighted her ongoing difficulty securing a TA for Child B. She was still providing this support herself. The Council asked Ms X to share the job description she was using and it would support her in her search.
• Child B’s tutor emphasised the importance of 2:1 support for Child B. The Council said it would consider funding a second tutor in the short term while it looked for a TA.
• Ms X pointed out that she had provided the Council with a quote for SALT in February but had not heard back about this.
• Ms X pointed out that despite it being the Council’s preference to review whether Forest School needed to continue one-to-one after six weeks, it was now four weeks into the second block and the Council had not agreed the funding could continue
• No MDT meetings had yet taken place. The Council suggested these be scheduled in line with every half-term and it could review provision there.
40. At the end of March, OTs from children’s social care visited the property. Ms X told the Council they identified that the family needed to move or the property should be extensively adapted.
41. In mid-April, Ms X asked the Council to confirm what funding it had agreed. She set out her concerns about paying for Child B’s provision herself when the Council did not pay her on time. She asked the Council to tell her what the payment for May would be.
42. Since complaining to the Ombudsman, Ms X told me the Council has now agreed a budget for:
• resources
• a building in the garden for Child B to use as a learning space
• SALT

My findings

43. I set out my findings on Ms X’s complaint in the order they appear in paragraph 1.

Assessment for EHC plan

44. Ms X says the Council took too long to issue Child B’s EHC plan. The statutory guidance says the Council should take no more than 20 weeks to complete the EHC process. In this case, the Council took from April to June, well inside the statutory timescale. I therefore do not find fault with the time taken to issue the plan.
45. However, during the assessment the Council identified it needed input from an OT to inform Child B’s plan. It asked the NHS for an assessment, but the NHS said Child B did not meet its criteria. The Council should have, therefore, procured its own assessment. Instead, Ms X had to pay for this herself. This was fault and it caused Ms X avoidable financial loss, which is an injustice.

Annual review

46. Child B’s EHC plan came up for review in June 2022. This was during the Tribunal process for the plan issued in 2021.
47. Ms X asked the Council for an annual review in June. In response to my enquiries, the Council acknowledged that the Tribunal process did not mean it could not hold an annual review. However, it was working with Ms X on an amended version of the plan already so it did not think the annual review process would be useful. The Council says doing an annual review would have further complicated an already complex Tribunal process.
48. The statutory guidance is clear that annual reviews should take place for every child or young person with an EHC plan. The Council decided not to conduct one for Child B in June 2022. In the circumstances, I do not find fault with this decision. Ms X and the Council were working on amending Child B’s plan as part of the Tribunal process. It is unlikely that an annual review would have meaningfully affected the plan before the Tribunal made its order in October.

Provision in the EHC plan

49. The Tribunal ordered the Council to issue an amended EHC plan for Child B in October 2022. The Council had five weeks to issue the amended final plan. The Council met this deadline, issuing the plan in early December.
50. The Council has a statutory duty to secure the special education provision set out in EHC plans. The court has said that the five week period built into the statutory process after the Tribunal makes its decision is to allow councils to secure provision. (R (BA) v Nottinghamshire County Council [2021] EWHC 1348)
51. The Council did not secure the provision in Child B’s EHC plan by the time it issued the amended final plan. This was fault. In this case, the Council also had several months before the Tribunal made its decision when large parts of Child B’s provision were agreed in which to source provision or agree funding but did not do so.
52. Instead, when it issued the amended final EHC plan, the only thing agreed and in place for Child B was 15 hours with the tutor. The Council said “it was not possible to get everything in place from day 1.” It said this was due to the complexity of Child B’s package, lack of resources in its SEN team and difficulty identifying and securing professionals to deliver the provision.
53. I recognise the difficulties this and many other councils face in delivering the provision in EHC plans. The shortage of professionals and the number of children requiring support present significant barriers to councils. The Council also has a duty to spend public money carefully and achieve the best value it can while meeting the needs of individual children. However, I consider the Council’s actions added avoidable delay to the process in the following ways:
• Learning space: Child B needs a “low arousal” environment in which to learn. There is no evidence the Council considered the circumstances of Ms X’s home before deciding it could meet this using a workstation and screening boards. It failed to respond to Ms X’s repeated explanations of why this was unsuitable. It took until April for the Council to agree that Child B needed a different space and at the time of writing, this is not yet in place.
• TA: The Council delayed telling Ms X what it agreed to pay for a TA until late December 2022. Ms X told the Council in December, January, and February that she had difficulty finding a TA. Despite this, the Council did not propose how it might help her until March. The Council has provided evidence of an acute shortage of TAs in its area. However, the Council agreed in March to consider funding an additional tutor or learning mentor while it looked for a TA. At the time of writing, however, Ms X continues to act as the second adult required in the EHC plan.
• OT: The Council did not accept Ms X’s quote for OT because it wanted to find a cheaper option. Despite noting in December that other providers either had no capacity or were more expensive, the Council delayed agreeing to fund the OT provision.
• Forest School: The Council wanted to review the 1:1 provision after six weeks, at February half-term. Despite this being the Council’s requirement, Ms X had to ask the Council to do the review and had to point out that it had not considered the report or agreed the funding four weeks into the second block.
• MDT: Child B’s EHC plan says there will be an MDT every six weeks to review the provision in place. The Council failed to arrange for these to start until April 2023, 5 months after it issued the final amended EHC plan. Had the MDT started sooner, some of the delays above might have been avoided or reduced.
• Funding approval: there was often a significant delay between Ms X providing a quote to the Council and the Council agreeing to pay for the provision. This in turn delayed that provision starting for Child B, unless Ms X was able to pay for it herself.

Injustice

54. The Council’s fault caused injustice to both Child B and Ms X.
55. Child B has not had all the provision in the EHC plan in place for over six months. The lack of a suitable learning environment means the provision which was in place was less effective than it might otherwise have been. These are significant injustices to Child B.
56. Child B’s package of EOTAS is complex and managing this through a personal budget means some time and trouble for Ms X is inevitable. The Council’s delays added to this avoidably, which is an injustice. Ms X paid for services like Forest School and bought equipment and resources without knowing if the Council would agree to pay for these. This caused Ms X avoidable anxiety, which is an injustice.
57. The Council’s failure to provide a TA or other suitable adult to work alongside the tutor means Ms X has also been acting in this capacity for over six months. This is 25 hours a week that she should be able to spend caring for her other children, administering Child B’s EOTAS package, and otherwise living her life. She has been unable to do so and this is a significant injustice to Ms X.
58. Ms X is Child B’s parent. Having her acting as the TA also serves to blur the line for Child B between learning and home life. The nature of Child B’s SEN means the impact of this on Child B and Ms X’s relationship is particularly significant. This is an injustice to Child B and Ms X.

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Agreed action

59. To remedy the injustice to Child B and Ms X from the faults I have identified, the Council has agreed to:
• Apologise to Ms X in writing;
• Discuss with Ms X and the MDT to establish whether a package of provision can continue over the holidays and half-terms for the next calendar year to make up for Child B’s missed provision and reduced ability to engage in education because of the unsuitable learning environment.
• Liaise with Children’s Social Care about Child B and Ms X’s needs and consider whether there is support Children’s Social Care can provide, particularly while there is no TA.
• Pay Ms X, for the benefit of Child B, £4,000, being £2,000 a term in recognition of the impact on Child B of not having the provision in their EHC plan.
• Pay Ms X £4,000, being £2,000 a term, in recognition of the impact on her and her family of acting as Child B’s TA.
• Refund Ms X the cost of the private OT assessment she paid for to inform Child B’s EHC assessment, subject to her providing evidence of the amount spent.
60. The Council should take this action within 6 weeks of my final decision.
61. The Council should also take the following action to improve its services:
• Remind relevant staff that the Council should secure assessments from relevant professionals as part of the EHC assessment process. Where such assessments are not available through the NHS, the Council should arrange its own or reimburse the parent for assessments procured privately.
• Identify and implement a process to enable the Council to promptly approve funding for alternative provision and EOTAS and keep track of any provision not yet in place or requiring review.
62. The Council should tell the Ombudsman about the action is has taken within three months of my final decision.

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Final decision

63. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman