Summary: There was fault by the Council causing injustice to Miss B and her family. The Council took too long to issue a final Education Health and Care (EHC) Plan following a review of this. It took too long to deal with Miss B’s complaints and to consider her request for a personal budget for her daughter’s education. The Council also did not do enough to make sure it was providing the education set out in her daughter’s EHC Plan. The Council has agreed to take action to remedy the injustice to Miss B and her child.

The complaint

1. Miss B complains that the Council has not dealt with her child’s special educational needs. In particular, she says the Council:
• Has not made the educational provision set out in the child’s Education Health and Care (EHC) Plan since September 2021;
• took too long to review the EHC Plan in 2022;
• failed to keep accurate records of a visit; and
• failed to respond properly to her complaint about this.
2. Miss B says that as a result of the Council’s failings, her child has received an inadequate education and received no education between May and September 2022. From September 2022, K has had only a significantly reduced part-time education but this was not in accordance with the EHC Plan.
3. Miss B says the Council’s inadequate record keeping and complaint handling has caused distress and frustration and put Miss B to additional time and trouble.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. Miss B complains about the Council’s actions dating back to November 2021 which is more than 12 months before she brought the complaint to the Ombudsman. However, the impact of these issues on Miss B and her child are ongoing, it is likely that she hoped the review process would address the issues for which she had to chase the Council, and she complained to the Council on 8 October 2022 but the Council’s response is late. For all these reasons, I have exercised discretion to investigate the Council’s actions from the end of December 2021 as they relate to the complaint.
9. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
10. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
11. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
12. Miss B has appealed to the tribunal about the EHC Plan the Council issued in July 2023. Her complaint about provision since this date is a matter for the tribunal and I cannot investigate it.

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How I considered this complaint

13. I considered the information provided by Miss B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments of both parties before issuing my final decision.

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What I found

The law and guidance

EHC Plan process

14. A child with special educational needs may have an 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 tribunal can do this.
15. 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). 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)
16. The Council must review the EHC Plan annually, but it can call an early review if it is necessary to change the Plan sooner, for example, where the school placement has broken down.
17. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
18. 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)
19. 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)
20. 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)
21. 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.

Personal budgets and EHC Plans

22. Families have a right to request a personal budget – the calculated cost of delivering the EHC Plan provision. This allows them to have a say in how the services are provided and to arrange their own support via a direct payment. In November 2023, the Ombudsman issued a focus report ‘Parent Power: learning from complaints about personal budgets’. This gave guidance to councils on common problems with personal budgets and direct payments. His advice to councils included that it should train staff to recognise requests for direct payments; that they should consider requests in a timely way; and that councils should introduce templates for personal budget and direct payments refusals.
23. The Council’s Personal Budget policy says:
• It can only be used on the provision set out in the EHC Plan.
• It will consider on its own merits.
• It will inform the applicant of the outcome and their right to ask for a review of a refusal.

Children who are out of school

24. 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.
25. 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)
26. 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)

The Council’s complaints policy

27. The Council’s complaints policy says that a complainant can expect a full response within 20 working days. If you are not satisfied with the Council’s response you can ask it to consider the complaint at stage two of its process. Again, a full response should take 20 working days, but more complex cases can take up to 65 working days (13 weeks).

What happened

EHC Plan process and provision

28. Miss B’s daughter, K has additional needs. Her special educational provision was set out in her EHC Plan dated September 2021. She is enrolled at a specialist therapeutic school.
29. Miss B raised issues with the school and with the Council. The Council officer told her that provision is not something she would investigate. The school’s position is that it has implemented the EHC Plan. The Council has taken the same position but Miss B disagrees and she says there is no evidence that the provision has been made.
30. K stopped going to school in May 2022 and the Council met with Miss B and separately with the school to check on the provision. Miss B says the record of the visit is inaccurate and does not accurately reflect that K has not had the provision set out in the EHC Plan. Miss B says her daughter has not had the dyslexia and occupational therapy (OT) equipment, the speech and language therapy (SALT) assessments, nor the daily mental health support. It also did not say what the Council would do to make sure the provision was put in place. Miss B asked the Council to make amendments to this but the Council did not respond. The record was later referred to in the review of the EHC Plan.
31. Miss B raised her concerns with the school. It offered to set up a therapeutic package but as part of this would take place virtually, and K had never been able to cope with virtual meetings, Miss B said this would not work. The Council confirmed that it had met with the school to discuss the provision and the plans for K to get back to school, and it was confident the school was offering an appropriate range of suggestions to build K’s attendance so that it could then fully make the provision set out in her EHC Plan.
32. A review of the EHC Plan took place in July 2022. At the review, Miss B raised the missing provision and that K had missed a whole term of education. Miss B asked the Council for a flexible learning package with a personal budget connected to the school but which would allow K to receive some of her provision at home and in the community.
33. K started going to school again in September 2022, but on a much-reduced timetable.
34. Meanwhile, K’s attendance was very low. The Council’s files show that in January 2023, Miss B sent it K’s attendance records, what was missing from the provision, and a detailed list of what had been tried to support K to attend school. Her view that this was not working.
35. In February 2023, Miss B again asked the Council clearly for a personal budget that could be used to implement K’s EHC Plan to take account of that she could not attend school regularly due to her complex needs. The Council’s records show that the officer dealing with K did not know about personal budgets. She would seek advice from a manager.
36. In March, the Council’s SEN Inclusion Team considered the situation. It decided that this was a complex case and the school was trying to support K to attend school. The school’s clinical lead telephoned Miss B weekly. However, it noted that K’s timetable was for three half days, which was later reduced, and K would only attend one of these regularly. Her attendance was at 21%. The school had a therapeutic education plan for K but this could not be implemented when K was not at school. Throughout this time, the Council still had not issued the current EHC Plan following the annual review of July 2022. Miss B continued to chase the Council for progress on the new EHC Plan.
37. The Council has sent me a record dated April 2023 setting out Miss B’s request for a personal budget. This is a fully costed plan of the personal budget and direct payments. There is no decision on this request recorded on the file, and I cannot tell how the Council considered the request.
38. K stopped attending school altogether in May 2023 and officially left the school in June 2023. Miss B says this is following her concerns about safeguarding. The Council took until July 2023 to issue the new EHC Plan and Miss B has appealed to the Tribunal about the contents of the Plan.
39. By this time another annual review was due. The Council decided however, that given that K had not been able to attend school regularly, it needed to reassess her needs and to consider whether it would be more appropriate for K to have an education otherwise than at school (EOTAS). The Council says on reflection, it should have continued with the annual review process alongside the needs assessment.
40. Miss B asked again whether the Council had made a decision about the personal budget. She said she knew she would have a right to ask for a review if it refused her request but she needed a formal decision before she could ask for a review. At the beginning of August, the Council informed Miss B that it had refused the personal budget because it needed more information and to reassess K’s needs first. I cannot see a record of this decision on the file. The Council asked Miss B to meet with it to review the EHC Plan and so she believed the Plan would be reviewed shortly.

Complaint handling

41. Miss B complained to the Council in October 2022. The Council responded to the complaint. Miss B asked the Council to consider the complaint at stage two of its procedure. She said the Council had not addressed that K was not getting the provision set out in her EHC Plan. The Council acknowledged her request on 24 November 2022. By the beginning of August 2023, the Council had not responded and Miss B made a complaint to the Ombudsman. Miss B and our office have chased the Council but it did not reply to Miss B’s stage two complaint until mid-November 2023, a year after it had been made.
42. The Council has acknowledged that it took too long to deal with Miss B’s complaint and that its stage one response was insufficient. It has offered Miss B a total of £600 in recognition of the time and trouble she was put to by the shortcomings in its complaint handling.
43. The Council has recruited additional staff with extensive background in SEN and has clear priorities on how to tackle the backlog of cases and suggest resolutions. The same manager is responsible for complaint backlogs and EHC Plan review backlogs. The Council has recruited SEN specialists across the organisation. The Council says there is still a backlog but its new measures are reducing it. Once the Council has cleared the backlog of complaints, the SEN complaints team will train staff who come earlier in the process to stop the backlog from recurring.

Analysis

44. Overall, the Council’s position is that it acknowledges it took too long to issue the EHC Plan following the review in July 2022; it should have continued with the EHC Plan review in July 2023 as that is the legal process; and it did not handle the complaint properly. It has offered to apologise to Miss B and make a symbolic payment in respect of the impact of its poor complaint handling. The Council is also progressing with its plan to improve its SEN complaint handling.
45. The Council maintains that K’s placement at the school was appropriate until she came off roll in June 2023. It says the provision of her EHC Plan was available to K at school but the issue was her non-attendance.
46. However, the Council needed to fully investigate whether the full provision was in place and why K was not going to school. This would allow the Council to satisfy itself that it had met its legal duties to arrange the provision of the EHC Plan and to decide whether it needed to make alternative educational provision when K could not attend school regularly. These duties apply whether or not K is enrolled at the school.
47. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC Plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

48. Miss B consistently gave specific examples of missing EHC Plan provision. The Council asked the school about this, and the school confirmed the provision was in place. The Council should be able to rely on information from education professionals. However, I would expect it to have looked again at this more closely when K’s attendance did not improve.
49. The Council significantly delayed in notifying Miss B that it intended to amend the EHC Plan following the July 2022 review and in issuing the final Plan. This caused Miss B distress and uncertainty.
50. I have also looked at how the Council handled matters when K could not regularly attend her reduced timetable. The Council does not need to get involved where the child could attend school with support or where the school has arranged for a suitable education outside of school. But I would expect to see evidence that the Council has considered why K was not at school, whether this was due to illness or other reasons, and whether she could attend with support, especially when the very poor attendance continued for more than one school year. As time went on, I would expect the Council to review whether the provision was accessible. It also retains responsibility for making sure the EHC Plan provision is made.
51. The Council did not call an emergency review of the EHC Plan when it became evident that K was not attending school. It says this was because K’s needs were the same; the provision was in place at the school; and the issue was that K was not attending. This is not fault in itself, but Miss B disputed that the full provision was in place, and that K’s needs were the same. The Council could have benefitted from an emergency review so that it could fully understand the situation, why K was not attending; how the EHC Plan provision was being made during this time, or whether it had a duty to arrange alternative provision.
52. The Council’s SEN Inclusion team reviewed this case in May and June 2023 and decided again that the school could meet K’s needs and implement her EHC Plan if she attended, and that it was making great efforts on flexible re-engagement plans. But even before then it was evident that the school’s re-engagement plans were not working and K was still not attending. On balance, it is not clear that the Council properly considered how it was meeting its duty to make the EHC provision when K’s attendance did not improve.
53. The Council did not properly consider Miss B’s request for a personal budget and a flexible plan to include school, provision in the community and at home. Miss B made the request in July 2022 and expected to see this considered as part of the EHC Plan review process, but this was severely delayed.
54. Miss B clearly made the request again in February 2023 but the Council was unclear on the process, it took until August to notify Miss B of the outcome and it is not clear from the file who made the decision to refuse the request and when. Also, the decision notification did not tell Miss B how to request a review of this.
55. Throughout this time, K did not have an up-to-date EHC Plan because the Council had delayed severely in progressing this following the July 2022 annual review. The Council also greatly exceeded the timelines set out in its policy in took over a year to complete the stage two complaint response. In addition, neither the stage one nor two complaint responses addressed Miss B’s complaint that her daughter had not received the educational provision set out in her EHC Plan.
56. In this case, there were several avenues to make sure that K received the educational provision. Improvements could have been made via the outcome of the July 2022 review and a new EHC Plan, via a personal budget and direct payments, or via the complaints process. But the Council delayed significantly in all these processes. The Council did consider why K was not attending school, and the efforts made by the school to re-engage her. But when K’s attendance did not improve, the Council did not properly consider whether the education was accessible to her (especially as the EHC Plan was out of date by some way) and how it was meeting its duty to arrange the provision set out in the EHC Plan.
57. The Council’ shortcomings have meant that K has not received the full educational provision, particularly as it became clear that the engagement was not improving. The delays in particular have caused Miss B distress and uncertainty.

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Agreed action

58. The Council is progressing an improvement plan with regards to its SEN complaint handling and so I have not made further recommendations to improve its service.
59. Within one month of the date of this decision, the Council will:
• Apologise to Miss B for the faults identified and the impact on her. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay to Miss B £500 as offered in recognition of the impact of the Council’s delay in issuing the final EHC Plan following the review in July 2022.
• Pay to Miss B £600 as offered in recognition of the impact on her of the Council’s poor complaint handling.
• Pay to Miss B £900 for each of the four terms K received a reduced EHC provision from May 2022 to July 2023 (totalling £3,600).
• Share this decision with relevant staff, along with the Ombudsman’s focus report ‘Parent Power: learning from complaints about personal budgets’ (November 2023). Remind staff to be alert to requests for personal budgets and direct payments so that the Council can properly consider these.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have completed my investigation. There was fault by the Council causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman