Summary: The complainant (Miss X) said the Council failed to provide her son (Y) with alternative education and special educational provision listed in his Education Health and Care (EHC) plan since January 2022. She also complained about the social care support for Y, the delays in the reassessment of Y’s needs and the Council’s refusal to fund Y’s travel to and from his therapy providers. We found fault with the Council’s reimbursement of Miss X’s travel costs and also with the delays in issuing Y’s amended EHC plan after the reassessment of his needs. This fault caused injustice to Miss X and Y. We also found fault with the way the Council carried out the children’s statutory complaint procedure for Miss X, but this fault did not cause injustice to her or to Y. We did not find fault with the provision of alternative education to Y or with the delivery of his special educational provision. We recommend the Council apologise, make a payment to recognise her distress and carry out some service improvements.

The complaint

1. Miss X says the Council failed to provide Y with alternative education and special educational provision listed in his EHC plan since January 2022. She also complains about the social care support for Y, delays in the reassessment of Y’s EHC needs and the Council’s refusal to fund Y’s travel to and from his therapy providers.

2. The Council’s failings, Miss X says, caused distress to her and Y and affected their mental and physical health. They also negatively impacted Y’s education.

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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 a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
5. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
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 with Miss 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 for children and young people aged 0 to 25 with special educational needs and their families.
11. 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

Legal and administrative framework

Alternative education and special educational provision

12. 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.
13. 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)
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
15. 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’)
16. 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)
17. 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)
18. If Councils decide it is necessary for child’s special educational provisions to be delivered otherwise than in a school (EOTAS) 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)

Direct payments

19. A personal budget (PB) is an amount of money identified by the council to deliver provision set out in an EHC plan so the parent can get involved in arranging the provision. A personal budget may be delivered through direct payments. When delivering services using direct payments councils must:
• Provide written notice of the conditions for receipt of direct payment;
• Satisfy itself the direct payments:
1. will be used in an appropriate way;
2. the recipient will act in the best interest of the child or young person
3. will not have an adverse impact on other services provided or arranged by the council for children and young people with EHC plans;
4. are an efficient use of the council’s resources;

Monitor the use of direct payments. (Special Educational Needs (Personal Budgets) Regulations 2014)

Reassessment of EHC needs

20. The local authority must aim to complete the re-assessment process as soon as practicable. The maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC plan. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.192)

Social care

21. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services:
• The first stage of the procedure is local resolution. Councils have up to 20 working days to respond;
• If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request;
• If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.

What happened

Background

22. Y is 15 and has a range of complex needs. He has had an EHC plan since May 2014.
23. In May 2020 the Council named a non-maintained residential special school (School 1) in Y’s EHC plan. In September Y started his transition to School 1.
24. After a few weeks Y’s behavioural difficulties at School 1 started. School 1 increased their individual support for Y and reduced his timetable. He continued struggling, which led to some fixed term exclusions and the breakdown of his residential placement.

Education

From January 2022 until January 2023

25. In January 2022 an emergency review for Y took place. Y’s difficulties and the breakdown of his placement at School 1 were discussed.
26. From January 2022 Y stopped attending School 1 but remained on its roll until July. School 1 provided tutoring to Y, Occupational therapy (OT) and Speech and Language therapy (SLT) sessions. Miss X had to provide transport to take Y to the therapy sessions.
27. Miss X asked the Council to reassess Y’s EHC needs. In mid-March the Council agreed to carry out this reassessment.
28. In April the Council responded to a Member of Parliament with the details of the provision arranged by School 1 which continued to be delivered to Y. The Council confirmed it was looking for a school placement for Y.
29. At the beginning of May Miss X complained to the Council about its failings to:
• issue an EHC plan for Y following the review in January;
• provide EOTAS to Y;
• provide a package of care.
30. A few days later the Council agreed to reimburse Miss X for the fuel costs incurred when taking Y to his OT sessions.
31. In the second week of July the Council told Miss X she should present her proposal of the EOTAS package for Y in writing if this was her preferred option for his education.
32. At the beginning of August the Council’s representative met with Miss X to discuss EOTAS and amendments to Y’s EHC plan following an EP assessment. A few days later the Council issued a draft EHC plan.
33. During Y’s child in need review in September the Council noted some outstanding actions regarding reimbursement for transport and setting up a pre-paid card for Miss X to fund Y’s carers. It was recorded that after the summer holidays Y returned to online tuition. The Council confirmed it was trying to find a school placement for Y.
34. At the beginning of September the Council made a payment to reimburse Miss X for the transport costs she had incurred when taking Y to his therapy sessions until the end of May 2022.
35. Miss X sent the Council her costed proposal of the EOTAS package for Y in the third week of September.
36. At the child in need meeting in October Y’s online tutoring and his access to OT and SLT were discussed. The Council confirmed it would pay the therapy providers and tutors directly. The Council told Miss X to fill in a mileage form from June but to exclude any transport provided during summer holidays.
37. In mid-November Miss X complained about the delays in issuing Y’s final amended EHC plan. She was also unhappy about the delays in making a decision on the EOTAS package or identifying a school placement for Y.
38. At the next child in need meeting in December the Council confirmed Y had been receiving tutoring, OT, SLT, specialist therapy, outdoor activities and online sessions of emotional support and guidance. The Council continued to approach schools for a place for Y. One school offered an assessment which was carried out on the morning of the child in need meeting.
39. The Council responded to Miss X’s complaint at the end of December. It partially upheld the complaint, recognising it had delayed issuing Y’s final amended EHC plan. The Council did not accept it had failed to deliver education and SEP to Y. It explained School 1 had supported him with education until July 2022 and had ensured delivery of his SEP and from September the Council had funded a package of education and therapies. The Council considered Y’s needs could be met in a school. Finding a suitable placement for him proved difficult.
40. Miss X raised concerns about the Council’s incomplete payments for the transport she had provided to Y’s therapy sessions.

From the end of January until April 2023

41. At the end of January 2023 the Council issued a final amended EHC plan for Y. The Council left Section I of Y’s EHC plan blank. The Council agreed to deliver special educational provision to Y otherwise than in school until it succeeded in finding a place for Y in a special school. The Council decided on a package of support to be delivered to Y when he was not attending school. The Council set up a PB for Y, specifying it would include home tuition, OT, SLT, specialist therapy, outdoor activities and sessions of emotional support and guidance. The Council decided to make payments directly to the providers.
42. The Council made another payment for Miss X’s travel costs at the beginning of February.
43. A few days later the Council provided its stage two response to Miss X’s complaint about Y’s education. The Council:
• apologised it had missed the issue of the petrol reimbursement in the earlier response and upheld this part of Miss X’s complaint. The Council confirmed Miss X’s travel expenses claims had been processed and she should receive the payment very shortly;
• did not accept it had failed to provide education to Y, explaining the way it was delivered until July 2022 and from September 2022. The Council explained finding a new school placement for Y had proved challenging as no school offered a place out of 30 schools which the Council approached;
• reiterated its position it did not accept EOTAS for Y as the Council continued to believe Y’s special educational needs (SEN) could be met in a special school;
• accepted it had delayed issuing Y’s final amended EHC plan and offered Miss X £200 to recognise the uncertainty and frustration it had caused.
44. In the third week of April Miss X appealed Sections B, F and I of Y’s EHC plan issued at the end of January 2023.
45. In its response to my further enquiries the Council said it could not complete payments for Miss X’s travel costs as for a long time she had failed to provide Y’s timetable in advance of payments. The Council also said Miss X had delayed sending the mileage forms and the travel claimed would not always refer to the provision agreed to be delivered for Y by the Council. The Council arranged to meet up with Miss X at the beginning of August to discuss the mileage claim forms and agree the payments. The Council said at no point had it queried that it should reimburse Miss X’s travel costs to the therapy providers but it had found getting the relevant information from her difficult.

Statutory children’s complaint procedure

46. At the beginning of May and at the end of June 2022 Miss X complained about the lack of funds for social care support for Y. The Council responded at the end of July, explaining the circumstances around social care support for Y since his care arrangements to access community activities had broken down in October 2021.
47. Miss X was not happy with the Council’s response and asked for her complaint to be investigated at stage two. In the second week of August the Council acknowledged Miss X's complaint and told her it was in the process of identifying an Investigating Officer. The Council commissioned an Investigating Officer and an Independent Person at the end of September.
48. An Independent Person reviewed the Investigating Officer’s report at the end of January 2023. In the report which followed she explained the process of the investigation at stage two and provided a list of people involved. The report referred to the relevant policies, procedure and guidance. The Independent Person agreed with the Investigating Officer’s findings. Four of Miss X’s complaints were not upheld and one was partly upheld. The recommendations included an apology to Miss X and some service improvements.
49. As part of the stage two investigation, in the third week of February the Council prepared an Adjudication letter. It accepted all the findings of the Investigating Officer and the Independent Person and accepted their recommendations. The Council told Miss X she could ask for her complaint to be considered at stage three by a review panel if she remained unhappy about the outcome of her complaint.

Analysis

Alternative education and special educational provision

50. I did not find fault with the Council in the way it provided education and SEP to Y since he stopped attending School 1 in January 2022.
51. I found the Council provided Y with alternative education in the form of online and face to face tutoring. From January until July 2022 this education was arranged by School 1 and from September 2022 the Council funded the tutoring and therapies.
52. Miss X told me that although Y had been receiving 15 hours of tutoring per week, he could probably cope with more. She also considered the Council had failed to support his mental health. Miss X said the staff delivering emotional support to Y, were not adequately trained.
53. As explained under paragraph 15 of this decision when reviewing the suitability of alternative education we take into account that it is more intensive than the education at school. Generally we would not criticise councils for arranging 15 hours a week of individual tutoring, especially if a child also receives therapies and other activities.
54. Most of SEP to support Y’s mental health and emotional development included in his amended EHC plan needed to be delivered at school and it would be difficult, if not impossible, to deliver it through EOTAS. The Council considered the EOTAS package to be an interim measure until it managed to find a suitable place at school for Y. The Council identified and ensured delivery of the provision to support Y’s emotional development which, although it might have not been equivalent to what Y would have received in a special school, is what we would expect.
55. Miss X has appealed the content of Y’s amended EHC plan to the SEND Tribunal. If she is not happy with the EOTAS package included in the plan, she can challenge the Council’s position as part of her appeal.

Funding transport

56. When deciding on the reimbursement of Miss X’s fuel expenses, the Council essentially agreed to fund Y’s travel to the therapy providers through a PB. Some of the problems with the reimbursements were caused by the insufficient information provided to Miss X and the lack of a robust process in place, which is fault.
57. I do not criticise the Council for monitoring the travel claims sent by Miss X as this is the Council’s duty. In its comments to my draft decision the Council explained the delays in addressing shortcomings in the documentation received from Miss X and arranging a meeting to discuss any outstanding issues were caused by the complexity of Miss X’s case and her late submission of the petrol claim. Whatever the difficulties and complexity of the case, which I accept as supported by the evidence, through the lack of decisive action the Council further delayed resolving matters, which cannot be justified.
58. The Council’s failings caused injustice to Miss X as she had to fund the travel to Y’s therapy providers for many months, not knowing when the Council would reimburse her expenses. This caused strain to her financial situation and distress.
59. After receiving my draft decision the Council sent the evidence it had reviewed Miss X’s travel claims from November 2022 to July 2023 and agreed them in full.

Reassessment of Y’s EHC needs

60. The Council agreed to reassess Y’s EHC needs in mid-March 2022 and had 14 weeks to complete the process. It should have issued Y’s final amended EHC plan by the second half of June 2022. The Council issued his EHC plan at the end of January 2023.
61. The delay of seven months is fault. It caused Y and Miss X injustice as the Council should have used an amended EHC plan when looking for a school placement for Y. Miss X’s appeal rights were delayed as was consequently the resolution of the dispute regarding the content of Y’s EHC plan.
62. The injustice caused to Y and Miss Y by this delay was to some extent mitigated for the following reasons:
• the Council had updated professional advice which could have been sent to schools consulted for a place for Y;
• despite the lack of a final amended EHC plan, in the autumn term 2022 the Council delivered SEP to Y in line with the EOTAS package which then was included in Y’s EHC plan.

Social care

63. As explained in paragraph four of this decision we would not reinvestigate a complaint if a council carried out its investigation under the children’s statutory procedure unless we consider the investigation flawed.
64. Reviewing the way the Council carried out the statutory children’s complaint procedure I found there were delays in the Council’s responses at both stages.
• The Council should have issued its stage one response to Miss X’s complaint raised in May 2022 by the beginning of June. It responded at the end of July;
• The Council should have completed its stage two investigation by the end of October 2022. The Council sent its Adjudication letter, the Investigating Officer’s report and the Independent Person’s report to Miss X at the end of February 2023.
65. The delays of six months within this complaint process are fault. I do not, however, consider this fault caused any significant injustice to Miss X for the following reasons:
• Most of Miss X’s complaints were not upheld so even if the Council had completed the process within the required timescales, Miss X’s situation would not have been different;
• Records of the child in need meetings held for Y show the Council was trying to resolve the difficulties with refunding payments made by Miss X to the carers throughout the autumn and winter 2022.
66. I did not find other faults with the way the Council investigated Miss X’s complaint. The Council applied relevant law and guidance and gathered evidence on which it based its findings. The Council accepted there were some failings in the way it handled the delivery of support for Y and in particular the payments for the carers. It offered to reimburse Miss X for any payments made for the carers after presenting their invoices for the services agreed as needed by Y. This is the outcome sought by Miss X.
67. In its Adjudication letter of February 2023 the Council told Miss X if she remained unhappy she could ask for her complaint to be considered by a review panel. At this stage I have not seen any evidence Miss X asked for her complaint to be reviewed at stage three of the statutory procedure.

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Agreed action

68. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Miss X and Y for the injustice caused to them by the faults identified;
• pay Miss X £500 to recognise the distress caused to her by the Council’s delays in issuing Y’s EHC plan and payments for Y’s travel to the therapy providers.

The Council will provide the evidence that the above has happened.

69. We also recommend the Council within three months of the final decision:
• Review its PB process to ensure that when agreeing PB for children with EHC plans the Council provides their parents with the written agreement and detailed information on the documents needed before the Council makes the direct payments;
• Identify reasons for any delays in EHC needs reassessments and in the statutory children’s complaint procedure and prepare a plan of action to ensure improvement.

The Council will provide the evidence that this has happened.

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Final decision

70. I uphold part of this complaint. I found fault with the Council’s reimbursement of Miss X’s travel costs to Y’s therapy providers and the delays in issuing Y’s amended EHC plan after the reassessment of his EHC needs. This fault caused injustice to Miss X and Y. I also found fault with the way the Council carried out the children’s statutory complaint procedure for Miss X but this fault did not cause her or Y injustice. I did not find fault with the provision of alternative education to Y and delivery of his special educational provision. The Council has accepted my recommendations, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman