Summary: Mrs X complained about the Council’s actions in relation to her child’s education, health and care plan and delays in responding to her complaints and other correspondence. We find the Council was at fault. This caused significant stress to Mrs X and her child went without education. To address this injustice caused by fault the Council has agreed to make several recommendations.

The complaint

1. The complainant, Mrs X, complains the Council:
1. failed to make alternative provision for her son while he was unable to attend school;
2. carried out an inadequate education, health and care needs assessment and failed to reimburse her for a speech and language assessment;
3. failed to issue an education, health and care (EHC) plan within the statutory timescales;
4. refused to consider awarding a personal budget;
5. delayed providing a personal budget after the plan was finalised;
6. delayed responding to her formal complaints and other correspondence;
7. failed to ensure preparation for adulthood was included in her son’s EHC Plan;
8. has not reimbursed her for legal fees;
9. delayed providing the remedy it offered;
10. failed to provide her son with an alternative way of writing as detailed in his EHC plan;
11. failed to provide her son with the appropriate chair that was detailed in an occupational therapy assessment; and
12. failed to provide suitable tuition after agreeing to an education other than at school package.
2. Mrs X said this has had a significant impact on her and her family. She said her son has been out of 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 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.
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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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.
9. 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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What I have and have not investigated

10. I have investigated parts a, c, d, e, f, h, i, j and k of the complaint.
11. I have not investigated part b, g and l. This is because we cannot look at anything which happened before the appeal right started which could be considered by the Tribunal. Mrs X appealed to the Tribunal in August 2023 and raised the issue about missing speech and language therapy, missing preparation for adulthood and lack of tuition.
12. Whilst I understand Mrs X has appealed to the Tribunal. As part of the appeal, she has not raised the issue around a failure to provide an alternative way of writing. I therefore consider this to be separable. I do not think it was reasonable to have expected Miss X to have raised this as part of the appeal. This is because the Council had agreed to complete an IT assessment.

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How I considered this complaint

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

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What I found

Timescales and process for EHC assessment

15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks;
• if the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; 
• if the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks;
• if the council goes on to issue an EHC Plan, 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 (unless certain specific circumstances apply);  
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement; and
• the council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Personal budgets

16. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
17. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
18. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
19. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.
20. Details of the proposed personal budget should be included in section j of the draft EHC Plan and, where the proposed budget includes direct payments for special educational provision, this section must include the special educational needs and outcome to be met by the payment. (SEND code paragraph 9.103)
21. Where the disagreement relates to the special educational provision to be secured through a personal budget, the child’s parent or young person can appeal to the Tribunal, as with any other disagreement about provision to be specified in an EHC Plan. (SEND code paragraph 9.108)

Alternative provision

22. 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.
23. 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)
24. 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)

Law and guidance

25. 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)
26. 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.
27. 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.

Summary of key events

28. Mrs X contacted the Council in September 2022. She said she had difficulties with accessing education for her son, B. She said B had been recovering from an autistic burnout for the past seven months. She said she would like some support with getting B back into education. Mrs X said she had submitted a parental request for an EHC needs assessment.
29. The Council said the case was discussed at panel in October 2022. It said it did not deem an assessment to be appropriate and made Mrs X aware of her right to appeal its decision.
30. In November 2022 the Council asked school if it had completed a medical referral for B. The school said it sent the initial application for medical schooling in early September. But said it was rejected. It sent a second which was accepted. But the school said Mrs X wanted to go through a different provision which she thought would help re-engage B.
31. The Council asked school if it would consider an education other than at school (EOTAS) package that involved B remaining on the schools roll but receiving off site provision. But the school said it could not keep a student with an EOTAS package on roll.
32. Following mediation, the Council agreed to carry out an EHC needs assessment.
33. The Council sought educational psychology (EP) advice in January 2023. Within the report it said:
• advice had been written while working within the fact B was not attending school and had not been able to meet with the EP;
• content was based on information gathered from calls, information on file and meetings;
• despite support being offered in form of a reduced timetable and access to the schools support base/key members of staff, B had been unable to attend school;
• B had not engaged with the offer of online work or support from the tutor provided by the medical service; and
• B had not accessed education for almost a year.
34. Mrs X said she was unhappy with the EP report. But the Council said the report included all aspects that EPs are expected to cover.
35. Mrs X contacted the Council and said it was agreed the Council would clarify the timeline for completing the assessment. This was because she said it had been highlighted that the assessment should be continued at week seven which would be from when the initial request was made. But she said the Council said it would begin at week one.
36. In response the Council said mediation was for the over-turn of the refusal to assess decision and the outcomes included:
• the Council agreed to assess B for an EHC Plan; and
• the Council would submit B’s case to panel for the decision to be ratified on the 24 November 2022.
37. But Mrs X told the Council it had agreed to investigate whether the timeline detailed in paragraph 28 was correct. But she said she had no update on this.
38. Mrs X contacted the school in March 2023. She said the draft EHC plan had been written but the Council was looking into the qualifications of the private clinical psychologist (CP) Mrs X had sought advice from. She also said the options for medical provision so far did not meet B’s needs. She asked the school to help secure provision.
39. The school made the Council aware of the provision that had been offered to B. But said this had been unsuccessful. The school asked for details of who they could contact to discuss responsibility for alternative provision. They referred the Council to LGO reports detailing responsibilities where a mental illness is affecting someone’s attendance.
40. The Council sent Mrs X the draft EHC plan at the end of March 2023. In response Mrs X asked:
• for an extension to respond to the draft decision as she had returned from a holiday;
• for information the Council obtained regarding its look into the CP qualifications;
• about whether a SALT assessment had been sought as per the CP report; and
• to arrange a co-production meeting.
41. The Council agreed to extend the deadline to 25 April 2023. It also said:
• a decision was made stating the CP report was valid and could be used in writing the plan;
• if Mrs X wanted further information about the report, she would need to seek advice from the EP service;
• regarding SALT, the NHS was contacted as part of the assessment and the response received stated the SALT referral had been rejected; and
• Mrs X would need to contact her GP for a referral to SALT.
42. Mrs X wrote to the Council in May 2023. She detailed the points she took away from the recent meeting. She said:
• as she had submitted substantial amounts of evidence and proposed changes, the Council wanted to postpone the co-production meeting until all the points had been added;
• the Council had been given authority to re-write the draft plan; and
• she would like to confirm a date for alternative provision and an education plan. She said she had a trusted home-based tutor and mentor. But she asked if the Council could fund this whilst waiting for the plan to be finalised. She asked for a personal budget.
43. The Council said as B was on roll, it was the school’s responsibility to provide him with an education. It said it would not provide additional funds for his education.
44. In May 2023, the Council said it would consider Mrs X’s request for EOTAS once it had consulted with schools. It also said it would consider her request for a personal budget.
45. Mrs X wrote to the Council the following month. She said B had been out of education for 15 months with no suitable education. She said she now had a trusted autism specialist teacher who she was funding herself. She asked for this to be reimbursed. Mrs X also said the EP report made no reference to B’s preparation for adulthood outcomes.
46. The school contacted the Council in June 2023. They said both the school and Mrs X had raised concerns over the provision of suitable alternative education for some time. The school asked if Mrs X could have financial support in the interim to support suitable alternative provision.
47. In July 2023 the Council’s panel decided EOTAS would not be appropriate as it said B’s views were clear that he wanted to be in college. But the panel later changed its mind.
48. Mrs X’s solicitor sent the Council a pre-action letter in July 2023. This was because Mrs X had not received the final plan.
49. The EHC plan was finalised in August 2023. It said:
• EOTAS was to be put in place while B was deemed to be medically unfit to attend an educational setting; and
• there would be a carefully planned move back into education.
50. Mrs X appealed the content of the plan to the Tribunal in the same month.
51. Mrs X sent the Council an updated version of her personal budget request. She asked if she could be reimbursed for money she had spent on tutoring.
52. The Council said the personal budget request would be reviewed at panel. It also said to ensure B had an education from September, it would arrange home tuition. It said it would contact the school to ask them to commission a tutor on a temporary basis for 1.5 hours per week, building up to five.
53. Mrs X’s solicitor wrote to the Council. They said the proposed EOTAS package was not suitable for B. This was because the Council wanted to propose an alternative method of support which B was not familiar with [different tutors]. They also said it was not a full-time package.
54. The Council asked the solicitor to confirm the qualifications/hourly rates of the proposed tutors. It also said it considered the request to start B with 25 hours of 1:1 support. But said it would be intensive and overwhelming for B. It proposed B continued with 11.5 hours with a view to regularly increase.
55. In September 2023, the Council confirmed it had agreed to commission an IT assessment to identify appropriate equipment.
56. B’s school asked the Council for clarity around overseeing the EOTAS package. They asked the Council if they could utilise funds they have been allocated as requested by Mrs X. This was funding the school previously received for additional teachers to support B.
57. In October 2023, Mrs X asked the Council if it had an update regarding the requested funding the school hold. She said she was still waiting for a decision about the personal budget. She also said:
• she had been told an IT assessment had been agreed, but B still did not have access to a laptop;
• mentoring was still being paid for by her; and
• the budget allocated to school was a temporary measure and she would like to know the next steps.
58. The school asked the Council for guidance on this case as they said they do not feel they are able to oversee the EOTAS package. The Council said it would provide an update when it’s in a position to do so.
59. In October 2023, the Council confirmed to Mrs X’s solicitor it would commission tutoring for the package and said the school would no longer be involved. It agreed for the previous tutor to continue with science tutoring and arranged the IT assessment.
60. Mrs X said she had evidenced B’s sleep disturbances. She said the current tutoring is between 5-6 and 6-7pm. This is because B could sometimes sleep until 4pm. But the Council said it would not consider the need for tuition to take place at weekends or evenings. This is because the Council said this does not support B to reintegrate into education as identified in his EHC Plan.
61. The Council agreed to the remaining provision commencing between 12:30-2:30 Monday to Thursday. It said it identified significant concerns with hours being delivered outside of school time.
62. A review of B’s EHC plan took place in December 2023. It was noted that home tuition was in place.

Analysis – was there fault by the Council causing injustice?

Part A of the complaint

63. Mrs X provided us with a copy of an early help plan and assessment completed in February 2022. It was noted that no progress had been made with the school’s planned timetable for B as he was too unwell to attend school. It also noted no progress had been made with the school counsellor as B was not currently in school. The assessments noted B felt anxious and sick when in school.
64. In response to my enquiries the Council said it did not have access to the early help assessment as it said B was only open to its SEND inclusion team in August 2022. But Mrs X has provided us with an email from the Council’s early help assessment team. They confirmed the early help assessments are on the system and confirmed the SEN team has access to this.
65. The section 19 duty arises when the Council becomes aware of a child out of education. As stated in paragraph 64, the Council’s early help assessment team confirmed it held this information on its system. Therefore, it was fault for the Council to not act on this information. This meant B went without any education between February and August 2022.
66. Mrs X told the Council in September 2022 B was not attending school. She asked for support with getting him back into education. But the Council did not contact the school about this until November 2022.
67. The school confirmed what steps it had taken. This included a referral to medical schooling. But said Mrs X wanted to go through a different provision. There is no fault in the Council first checking what steps the school had taken. But there was a delay between September and November 2022. This is fault.
68. The Council’s EP report in January 2023 states B had not been in school for almost a year and had not engaged with what school had offered. The school told the Council in March 2023 the provisions offered had been unsuccessful. The school wanted to discuss who was responsible for alternative provision. I have seen no evidence to suggest the Council responded to this. I have also seen no evidence to support how the Council considered whether the education arranged by the school was suitable. This is fault.
69. The Council told Mrs X it was the school’s responsibility to provide alternative provision and stated the Council had fulfilled its duty. But guidance states the section 19 duty applies to all children of compulsory school age, whether or not they are on the roll of a school. The Council has accepted fault under its section 19 duties. It has provided Mrs X with a remedy of £3600.
70. In acknowledgment of missed education, we recommend a payment per term. In this case, as a result of fault by the Council, the lack of education due to fault by the Council amounted to four terms [between February and September 2022 and January and August 2023]. I consider a suitable remedy in this case to be £2000 per term. In determining this, I have taken into account that B received no education until Mrs X funded some tuition between May and August 2023.
71. As stated in paragraph 70, Mrs X funded some tuition for B between May and August 2023. As this is as a direct result of fault by the Council, I consider it should reimburse Mrs X for the money she spent during this period.
72. In the Councils response it also said it asked managers to review section 19 processes and pathways as part of the agreed alternative provision strategy 2023-2026.

Part C of the complaint

73. Following mediation in November 2022 the Council’s previous decision to not continue with an assessment was overturned. The EHC Plan should have been finalised by April 2023. But it was not finalised until August 2023. This is fault.
74. During that time, the Council carried out investigations into the qualifications of the private clinical psychologist report. We could not criticise the Council for this. We recognise Mrs X also provided the Council with changes to the plan which the Council considered. But councils should have oversight and be aware of the statutory duties to meet the timescales. This fault delayed Mrs X’s right of appeal and delayed provision being in place for B.

Part D of the complaint

75. Mrs X initially requested a personal budget in May 2023. She said this was to help fund tuition whilst waiting for the plan to be finalised. In response the Council said it would consider this request towards the end of the process.
76. In the Council’s final response, it said at the time B had an offer of education and therefore the Council would not provide a personal budget. It told Mrs X it would not provide additional funds as B was on roll. It said it was the school’s responsibility to provide education. Guidance states councils must set out its reasons for refusal and inform parents of their right to request a formal review of the decision. I have seen no evidence to suggest Mrs X was informed of this right. This is fault.

Part E of the complaint

77. After Mrs X’s request for a personal budget in May 2023, she continued to ask the Council about this. The EOTAS package was agreed in principle in June 2023 and the Council said it would discuss the personal budget request in July 2023.
78. The EHC Plan was finalised in August 2023 and noted no personal budget had been agreed. This is fault. Details of the personal budget should be included in section j of the EHC Plan. But Mrs X spent time and trouble in contacting the Council to get the personal budget in place. There was a delay in the Council considering this.
79. The Council has provided us with details of the current personal budget. But Mrs X said this is still not finalised. The Council told us as the EHC Plan is in appeal, this will be completed through this legal process. It said it will be updated in the working documents as part of that process.
80. The SEND code states where the disagreement relates to the special educational provision to be secured though a personal budget, the child’s parent or young person can appeal to the Tribunal. In this case Mrs X has appealed the provision to be secured through a personal budget and I cannot consider how the personal budget feeds into the provision.

Part F of the complaint

81. Mrs X complained to the Council in May 2023. She chased this up with the Council in June. The Council acknowledged her request. But I have seen no evidence to suggest the Council responded to her complaint until September 2023. This is fault and not in line with the Council's policy. This meant Mrs X spent unnecessary time and trouble contacting the Council.
82. Mrs X asked the Council to clarify the timeline for completing the assessment. After mediation, she said the Council wanted to begin the process from week one. The Council said the decision was over-turned due to new information. But I have seen no evidence to suggest the Council provided Mrs X with the clarity she sought. This is fault.

Part H of the complaint

83. Mrs X wants the Council to reimburse her for the costs of the pre-action letter her solicitor sent the Council in July 2023. This was because Mrs X had not received the final plan. We recognise there was delay in finalising the plan as detailed in paragraph 73 and we will seek a remedy from the Council for the injustice this caused. But we could not ask the Council to reimburse these legal fees.

Part I of the complaint

84. In the Council’s response in September, it agreed to provide Mrs X with a financial remedy. Mrs X responded to this in the following month. She said ‘Financially, we very much need the offered compensation but agreeing to this without prejudice. We do not feel this adequately pays for what has already been spent which is well over £5000.’ The Council took this as Mrs X declining the financial remedy for loss of provision.
85. After Mrs X contacted the Council about this in December 2023, the Council arranged for the payment to be made. This appears to be a misunderstanding and the Council has now resolved it. There is nothing further we could achieve.

Part J of the complaint

86. In the final plan in August 2023, it stated B was to be provided with an alternative way of writing. The Council confirmed in September 2023 it had confirmed to commission an IT assessment to identify appropriate equipment. But Mrs X said this has still not been complete and B is without an alternative way of writing.
87. In response to my enquiries the Council said the IT assessment was processed. It said it would follow up on why this has not taken place. There is a clear delay, and this is fault. This meant B went without the provision.

Part J of the complaint

88. Mrs X told us B is without an appropriate chair that was detailed in his OT assessment in October 2022. The Council provided us with an extract from the OT report which states ‘B needs to use chairs which support his posture and enable him to feel safe. B needs a seat at an appropriate height to support his hips, knees and ankles to be bent at 90 with lumbar support. He is likely to need arms on his chair to support his balance’.
89. In response to my enquiries, the Council said it had arranged for an up-to-date OT assessment. This was completed and the purchase of the equipment would be via the personal budget. But there has been a significant delay in the Council considering this information. This is fault.

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Agreed action

90. To address the injustice caused by fault, within one month of my final decision the Council has agreed to:
• write to Mrs X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Mrs X £4000 for the educational benefit of B, to recognise the impact of its failings on B’s education [between February and August 2022];
• pay Mrs X an additional £400 for the educational benefit of B, to recognise the impact of its failings on B’s education [between January and August 2023];
• pay Mrs X £300 for the educational benefit of B to recognise the impact of its failings detailed in paragraphs 87 and 89;
• pay Mrs X an additional £300 to acknowledge the distress caused to her by the fault identified in this statement;
• pay Mrs X £200 to acknowledge the unnecessary time and trouble she spent in contacting the Council; and
• following submission of satisfactory receipts to the Council, reimburse Mrs X for money she spent on tuition between May and August 2023; and
• arrange for the IT assessment to be completed.
91. Within two months the Council should:
• remind relevant officers of the importance of responding in a timely manner;
• remind relevant officers of the statutory timescales for finalising an EHC Plan; and
• remind relevant officers of the guidance which states where a council decides not to make direct payments as part of a personal budget, it must inform in writing the child’s parent of its decision, the reasons and the right to request a review of that decision.
92. Within three months the Council should consider improvements to the way its services communicate.

The Council should provide us with evidence it has complied with the above actions.

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Final decision

93. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman