Summary: The complainant, Ms X, complained about how the Council has handled her daughter’s special educational needs and Education, Health and Care Plan. We find the Council was at fault. This caused significant stress to Ms X and her daughter. The Council has agreed to address the injustice caused by fault with the recommendations we made.

The complaint

1. The complainant, Ms X, complains about how the Council has handled her daughter’s special educational needs and Education, Health and Care Plan (EHCP). She said because of this her daughter has been out of education.
2. Ms X said this has caused her significant stress and has had a negative impact on her daughter’s mental health and education.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended).
6. 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.
7. 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).
8. 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)
9. 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.
10. 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)

Back to top

What I have and have not investigated

11. I have investigated whether there was any fault in how the Council handled Ms X’s daughter SEND and EHCP between January and August 2022. I have also investigated the Councils actions after February 2023.
12. I have not investigated what happened between August 2022 and February 2023 about the named placement, any lack of education and education other than at school (EOTAS) package. This is because Ms X appealed the contents of the plan to the Tribunal and the EOTAS was agreed through the Tribunal. As stated in paragraph 7 the law prevents us from investigating these matters. I can only consider whether the Council was at fault for failing to provide what had been agreed in the final plan.

Back to top

How I considered this complaint

13. I spoke with Ms X about her complaint. I considered all the information provided by Ms X and the Council.
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making my final decision.

Back to top

What I found

Education, Health and Care plans

15. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. This can include support needed in school.
16. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
17. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
18. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
19. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
20. 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.

Alternative provision

21. 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.
22. 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)
23. Where full-time education would not be in the best interests of a particular child because of reasons relating to their physical or mental health, councils should provide part-time education on a basis they consider to be in the child’s best interests. (Ensuring a good education for children who cannot attend school because of health needs)
24. 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.
25. When a child is not receiving a suitable education, the courts have confirmed it would be necessary to consider the whole picture to decide in what respect, if any, this is attributable to a breach of duty by the council. Parents are also under a duty to ensure their child receives a suitable education either by regular attendance at school or otherwise as set out in section 7 of the Education Act 1996. If there is no suitable education available that is ‘reasonably practicable’ for the child, the council will be in breach of section 19. The courts have confirmed that it is the council’s duty to form a view of what is a suitable education and whether the education is reasonably practicable for the child to access.
26. When reintegration into school is anticipated, councils should work with the school (and hospital school, PRU/home tuition services if appropriate) to plan for consistent provision during and after the period of education outside school. As far as possible, the child should be able to access the curriculum and materials that he or she would have used in school. The Council should work with schools to ensure that children can successfully remain in touch with their school while they are away. This could be through school newsletters, emails, invitations to school events or internet links to lessons from their school. (Ensuring a good education for children who cannot attend school because of health needs)
27. Councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence. (Ensuring a good education for children who cannot attend school because of health needs)

Personal budgets

28. A personal budget is an amount of money identified by the Council to deliver provision set out in an EHC plan where the parent or young person is involved in securing that provision.
29. Personal budgets should reflect the holistic nature of an EHC plan and can include funding for special educational, health and social care provision. They should be focused to secure the provision agreed in the EHC plan and should be designed to secure the outcomes specified in the EHC plan.

Education otherwise than at school

30. A council may arrange for any special educational provision that it has decided is necessary for a child or young person to be made otherwise than at school. A council may do so only if satisfied that it would be inappropriate for the provision to be made in a school.

The Council’s interim provision service

31. The Interim Provision Service (IPS) is an interim teaching service for children and young people:
• between 5-25 years old;
• with an EHC plan;
• who are not on roll of a school and are awaiting an educational placement.

What did happen?

32. This section sets out the key events in this case and is not intended to be a detailed chronology.
33. Ms X’s daughter, C, has an EHC plan. In January 2022 an annual review of the plan was held. C’s school requested additional funding from the Council to provide 1:1 support for to help her access education in school. In addition, the school contacted the Council and asked for this support be put in place promptly.
34. In the same month the Council agreed to amend C’s EHC plan and sent Ms X the draft plan in February 2022.
35. In March 2022 Ms X asked the Council for an update on whether 1:1 support could be provided. The Council said it did agree. But it said this was not official and it needed more information about the funding. The school and Ms X expressed concerns about the delay this could cause.
36. An educational psychology (EP) assessment was carried out in March 2023 following the request for additional funding. This was also to explore the suitability of C’s current provision. It stated due to a range of factors, C’s attendance has rapidly decreased, and she was accessing limited education at home and said:
• C was not attending school;
• the school had put some adjustments in place to enable C to continue to access learning and support her to reintegrate back into school. This included 1:1 online teaching; and
• the EP noted C required specific and targeted support to be provided by a key adult trained and experienced in working therapeutically with young people.
37. Following Ms X asking for an update in April 2022, the Council said it was awaiting a decision regarding the 1:1 support. The school said it was concerned about C’s lack of attendance. The school also said both Ms X and C wanted to start an education other than at school (EOTAS) package as C had been out of education for too long. The school asked the Council for advice on how to move forward and whether it would need to serve notice to end the placement.
38. The Council agreed to provide funding for the 1:1 support in May 2022. It said it did not agree to EOTAS unless there was no other educational placement that could meet C’s needs.
39. Ms X told the Council in May 2022 C had not attended the school for around six months. She said the school confirmed it could not meet C’s needs which the Council said it was not aware of. But Ms X said it was aware.
40. The school told the Council due to the duration of time it had taken to agree funding for the 1:1, it could no longer meet C’s needs. It said it had now served notice to Ms X on ending the placement. The school said it had provided some online work which had not been accessed.
41. The Council told Ms X it would begin consulting with schools. It said if unsuccessful, it would then consider EOTAS. Ms X advised the Council she would appeal and asked for the finalised plan. This was sent to her in May 2022.
42. The Council referred C to its interim provision service (IPS) in June 2022. The notes stated this was put in place in July 2022. This involved C working with a tutor.
43. Ms X asked the Council for an update in June 2022 and whether it could now look at considering the EOTAS. She said as the Council had consulted schools which could not meet C’s need, this would further delay the process.
44. The following month the Council said all schools it had consulted with could not meet C’s needs. It said it would now consider the EOTAS package.
45. Ms X complained to the Council in July 2022. She said:
• C had been out of education for around eight months;
• the Council had delayed in approving the 1:1 funding;
• the Council delayed issuing the final plan following the January 2022 review;
• the Council delayed considering the EOTAS; and
• the Council consulted with inappropriate schools.
46. The Council made Ms X aware it could not consider her complaint. This was because it had received the Tribunal appeal in August 2022. The appeal was against sections B, F and I of the EHC plan.
47. In November 2022, the Council agreed to name EOTAS in the plan. It agreed a contract for a tutor and asked for some further online tuition.
48. In January 2023, the tutor working with C as part of the EOTAS package said work had started and was going well. They asked the Council if it could loan a laptop to C. Ms X also provided the Council with details of resources required for the course. This included text books.
49. In March 2023 Ms X sent the Council an updated personal budget which included further costings. She said this was required to support the EOTAS approved in January 2023 which remained outstanding.
50. Ms X told the Council the laptop provided was not suitable. She said she had requested an iPad which C was familiar with.
51. The Council told Ms X in April 2022 it had agreed to issue an education personal budget by way of an arrangement for some provision. This meant the Council would hold the fund and pay the providers directly on receipt of monthly invoices.
52. Ms X complained to the Council again the following month about the same issues detailed in paragraph 43. She also complained about parts of the personal budget not being approved. She said some of her requests had been declined and there had been a delay in providing IT equipment. Ms X also said some of the IT equipment was not suitable for C’s needs.
53. In response the Council said:
• there was a significant delay in finalising the May 2022 EHC plan;
• Ms X lodged an appeal on 2 August 2022. It took until 20 February 2023 to agree to the working document and for the consent order to be signed;
• as C was on roll at her school, they were responsible for providing her with an education and the provision in her plan;
• it accepted that its decision-making process about the request for 1:1 support was protracted. This impacted C’s attendance and contributed to the school placement ending;
• it will only agree a personal budget when it relates specifically to provisions in the plan;
• apologised for the delay in agreeing to the course fee and textbooks. It said this was an oversight on the Council’s behalf.
54. The Council confirmed in May 2023 it had approved the course fee and ordered textbooks. It also finalised the EHC plan.

Analysis - was there fault by the Council causing injustice?

55. For the reasons outlined in paragraphs 11 and 12 of this statement, I cannot investigate whether there was any fault in the Council’s actions between August 2022 and February 2023 about the named placement, any lack of education and any dispute about a failure to agree to the EOTAS package.

Education and 1:1 support request

56. At the annual review in January 2022 the school requested additional funding to provide 1:1 support for C. They asked for this be put in place promptly due to C’s needs. The Council agreed to this in March 2022 but said it required further information about the funding. An EP assessment was carried out which detailed what adjustments the school had put in place to support C with accessing online work and to support with reintegration back into school. The Council did not agree to the 1:1 support until May 2022. The delay in dealing with this request is fault.
57. The Council accepted that this delay affected C’s attendance and contributed to her school placement ending. This was significant injustice to C. I cannot say the placement would have been successful if the 1:1 had been put in place earlier. But the fault did cause C and Ms X uncertainty. Ms X also spent time and trouble in contacting the Council about this. The Council said its team had been significantly impacted by high demand and staffing capacity. It has taken steps to rectify this, including increasing staff capacity.
58. At the annual review it was noted that C was experiencing anxiety and mental health difficulties. As stated above, the school put adjustments in place to support C. I cannot consider the actions of the school so I cannot comment on whether the actions taken were sufficient. The guidance states education must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. In this case the Council’s duty was to consider whether alternative provision was required. The Council arranged for an EP assessment as stated above. The Council decided the adjustments the school had put in place were suitable and in C’s best interests. The courts have confirmed that it is a council’s duty to form a view of what is a suitable education and whether the education is reasonably practicable for the child to access. I have no grounds to criticise the Council’s professional judgement about C’s ability to re-integrate back into school between March and May 2022.
59. The EP assessment stated C was accessing a limited amount of learning at home. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’ the Council must consider whether alternative arrangements need to be made. The duty arises after a child has missed 15 days of education either consecutively or accumulatively. It applies to all children of compulsory school age, whether or not they are on roll of a school.
60. In line with the statutory guidance, the Council was entitled to see if C’s reintegration back into school was successful. It commissioned an EP to help form a view from a professional’s perspective about C’s ability to attend school with the help of 1:1 support. I therefore do not consider the Council’s section 19 duties were engaged until the school confirmed in May 2022 that its plan to reintegrate C had been unsuccessful. At this point, the Council should have taken a view on the suitability of the school place and whether it was still accessible for C. But the records show some unexplained drift between May 2022 and the Council referring C to its interim provision service in June 2022. This delay is fault. This meant C went for longer than necessary without education she was entitled to.

Delay in finalising the EHC plan

61. The Council sent Ms X the draft EHC plan in February 2022. The finalised plan was not sent to Ms X until May 2022 when she requested it. This is outside of the statutory time frames. We recognise the Council has acknowledged this delay in its complaint response. But this caused injustice to Ms X and C because C went longer than necessary without an up-to-date EHC plan and this delayed Ms X’s right of appeal.

Alternative provision

62. The Council referred C to its interim provision service in June 2022 and this started shortly after. I can only consider the period between June and end of July 2022. This is because Ms X appealed the content of the plan to the Tribunal in August 2022. This Council told us this provision was delivered by qualified teachers with SEN experience. Ms X has provided us with an email from the tutor confirming they were primary/early years experienced. Ms X did not think this was suitable for C who was going into year 10. The Council completed an assessment before the tuition started and provided us with several documents evidencing how C’s progress was monitored. The Council used its professional judgement and considered this to be suitable for C. I do not find fault.

Councils’ consideration of the EOTAS request

63. Ms X said the Council delayed considering her request for an EOTAS package which she asked for in April 2022. The guidance states councils may arrange this only if it is satisfied that it would be inappropriate for the provision to be made in school. The school served notice to end the placement the following month. The Council was entitled to first satisfy itself the provision could not be made in any other school, and consequently it began to consult with other schools. After consulting, the Council told Ms X in July 2022 it would consider the request for EOTAS. Ms X lodged an appeal the following month which was concluded by consent order in February 2023. The Council followed the correct process when receiving Ms X’s request and I cannot question its decision.

Consulting with schools

64. Ms X said the Council further delayed the process by consulting with inappropriate schools. As stated above, the Council was entitled to satisfy itself C’s provision could not be made in school. The Council did apologise to Ms X and accepted that some of the schools it consulted with were not suitable. This is fault. But it was reasonable for the Council to consult with other schools. I cannot say this did impact on the timescales. This is because the Council consulted with different schools around the same time and received responses around the same time.

Personal budget requests

65. In March 2023 Ms X included costs of a course and textbooks in her personal budget which the Council declined. The Council has said this was error on its part and apologised to Ms X. The Council told us it agreed to a request for the course in January 2023. But it said it did not realise the course and materials needed to be approved in addition. It agreed to fund this, but said there was a delay in the payment being processed. The notes stated the order was made in May 2023.
66. Parts of the appeal were agreed on 20 February 2023 by consent order. The final order closing the appeal was issued on 12 April 2023. The Council told Ms X it had until 25 May 2023 to issue the final plan in line with Tribunal timescales. The Council has a duty to provide what is in the finalised EHC plan. As the plan was not finalised, we cannot criticise any delays in regard to providing the personal budget as detailed above.
67. As stated above, the Council said it had until the 25 May 2023 to finalise the plan. But the plan was finalised and sent to Ms X on 30 June 2023. The delay in finalising the plan is fault. But I do not consider this to have caused C or Ms X any injustice. This is because the Council arranged for the EOTAS package to start from January 2023.
68. Ms X told us the Council declined her personal budget request about extra funding for the mentor. The Council told us that during the Tribunal process it was agreed the Council would provide five hours of mentoring per week. But Ms X requested further funding for community activities and preparation for adulthood with the mentor. The Council considered this request but did not deem it appropriate. It said it felt that many elements requested could be provided for within the agreed mentor hourly rate. This is a decision the Council is entitled to take. It has evidenced it considered the request which is what we would expect.

IT equipment

69. Ms X said the Council delayed providing IT equipment. She also said the IT equipment provided was not suitable for C. In January 2023 the tutor requested a laptop from the Council for C. They said C had been using Ms X’s MacBook which allowed her access to emails that were not appropriate for her to see. Ms X provided us with an email from the tutor confirming they would request an iPad. The Council provided C with a laptop in April 2023. While there was a delay in providing this, I do not consider this to have caused any injustice to C. This is because she had access to Ms X’s MacBook.
70. Ms X told the Council the laptop was not suitable and requested an iPad. The Council said it considered the laptop to be suitable and said having an iPad was not a requirement for the EHC plan. That is decision it is entitled to take. Section F of the plan stated C would have access to IT equipment such as an iPad. It also stated that C would have use of an iPad or computer to communicate. Therefore the plan does not specify that C must have an iPad to complete her work and so there is no fault by the Council.

Communication

71. There is evidence Ms X repeatedly asked the Council to provide a copy of its EOTAS process. The Council told Ms X it did not have a process it could share with the public. There was a delay in the Council advising Ms X of this. This is fault. This meant Ms X spent unnecessary time and trouble in contacting the Council. The Council told us it has carried out training on the EOTAS process and introduced an EOTAS policy.

Back to top

Agreed action

72. To address the injustice caused by fault, within one month of my final decision the Council should:
• apologise to Ms X and C for the faults identified in this statement;
• pay Ms X £300 each for the avoidable distress, time and trouble caused by the Councils actions;
• pay Ms X £300 for the educational benefit of C, to recognise the impact of its failings on C’s education.
73. Within two months the Council should issue written reminders to relevant staff to ensure they are aware of the guidance which states:
• Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
74. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

75. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman