Summary: The Council’s delay completing Child B’s Education Health and Care plan was fault. The Council was also at fault for failing to put the provision in the plan in place following a decision by the tribunal. The Council failed to communicate effectively with Mrs X throughout the process and delayed responding to her complaint. As a result, B missed out on education for over 30 weeks and Mrs X experienced avoidable financial loss and distress. The Council has agreed to apologise, make payments to B and Mrs X and act to improve its services.

The complaint

1. Mrs X complained about the Council’s handling of her child B’s Special Education Needs (SEN). In particular that the Council:
1. Failed to make alternative provision when B was out of school from September 2021
2. Failed to follow the statutory processes and timescales for issuing an Education Health and Care (EHC) plan
3. Delayed making the special education provision ordered by the SEND tribunal
4. Failed to communicate with the family throughout the process
5. Delayed responding to her complaint.
2. As a result, Mrs X says B was without access to suitable education for almost two years. Mrs X has experienced avoidable distress, financial loss, and frustration.

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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. 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) 
5. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we nor the tribunal can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean a complaint is something we can investigate. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).  
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)

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What I have not investigated

7. Where a complainant has used an alternative legal remedy, we cannot investigate the decision under appeal. Mrs X appealed to the tribunal about B’s EHC plan. This included the provision in section F and the placement in section I.
8. The issue of B’s lack of education from September 2021 until Mrs X had a right of appeal to the tribunal in March 2022 is too closely connected to matters that were before the tribunal. Specifically, the suitability of a mainstream school placement for B’s education. This means we cannot investigate B’s lack of education from September 2021 until the tribunal made its decision in February 2023.
9. Therefore, I have not investigated the complaint at a) in paragraph one.

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How I considered this complaint

10. I spoke to Mrs X about the complaint and considered the information she provided.
11. I made written enquiries of the Council and considered its response along with relevant law and guidance.
12. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
13. Mrs X and the organisation 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

Education Health and Care plans

A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections which include:

• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 

14. 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 whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks.
15. There is a right of appeal to the SEND Tribunal about the content of the final EHC plan. An appeal right is only engaged once a final EHC plan has been issued.
16. Where the Tribunal orders a council to amend an EHC plan, the council shall amend the EHC plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 
17. 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)

The Council’s process and policies

18. The Council’s Education Health and Care Plan Governance Board makes decisions about:
• Whether to issue an EHC plan
• How much provision or support a child needs to meet their special education needs
• Whether to allocate a personal budget to deliver some or all the provision in an EHC plan
• How much funding to award to deliver the provision in the EHC plan. This decision is then ratified by senior management.
19. The Council’s Children Missing Education (CME) policy says:
• SEN case officers will tell the Inclusion service about any children with SEN who are not in school or who do not go to school following a key stage transfer
• The Council will monitor the education of statutory school age children who are not on roll at a school and whose provision is met through a personal budget
• SEN managers will attend meetings about CME with updates to make sure cases do not drift and to show the work carried out to source full provision
20. The Council has a two stage complaint procedure:
• At stage one, the policy says the Council will respond to the complaint within 10 working days
• At stage two, the Council will respond within 20 working days

What happened

21. B has special education needs (SEN). In May 2021, B’s school asked the Council to assess B and decide whether to issue an EHC plan.
22. In June, the Council agreed to assess B. An Educational Psychologist assessed B at home over the summer. Mrs X got a private Occupational Therapy (OT) assessment too. She shared this with the Council.
23. B was due to move to a new school in September 2021. B’s parents decided it was not in B’s best interests, nor in line with professional advice, for B to go to a mainstream school without any SEN provision in place. Mrs X said this would have a significant impact on B’s wellbeing. Mrs X told the Council by email that they would “temporarily” educate B at home while the Council finalised the EHC plan and found a suitable school place for B.
24. The Council’s Governance Board considered B’s case in September. It decided B needed an EHC plan. One of the actions from this meeting was for the case officer to confirm with Mrs X if she was educating B at home. If so, the officer should refer B’s case to its inclusion team.
25. The Council issued a first draft of B’s EHC plan in October. The Council issued a final EHC plan in March 2022. This said B needed 15 hours of provision in a mainstream school setting. Mrs X did not agree and appealed to the tribunal about the provision in section F and the placement in section I of B’s EHC plan.
26. In December 2022, the mainstream school named in the final EHC plan told the Council it could not meet B’s needs. It withdrew its offer of a place for B.
27. In February, the tribunal ordered the Council to amend B’s EHC plan. It decided B needed Education Otherwise than at School (EOTAS) and detailed the support and provision B needed.
28. The Council says it did not receive the tribunal’s order until March. It then issued a new final EHC plan in line with the tribunal’s order. However, the Council did not put any of the provision in the plan in place. Mrs X asked the Council to agree a personal budget and make direct payments so she could secure the provision in B’s plan. The Council did not put this in place either.
29. Mrs X complained to the Council. She said that although B had been out of school since September 2021, the Council had failed to provide any education. She said this continued despite the tribunal’s order.
30. The records show correspondence and progress on B’s EOTAS package throughout April. The Council agreed to fund some of B’s provision through a direct payment to Mrs X. The Council provided Mrs X with a detailed breakdown of the package including the parts Mrs X would pay for using direct payments and those funded directly by the Council. The Council told Mrs X it would send out a formal decision letter “once it has been finalised on our system”.
31. The records show the case officer left the Council in May. Mrs X chased the Council several times to find out what was happening with B’s provision. She found out B’s case officer was no longer with the Council by receiving an “out of office” response to an email. No one at the Council contacted Mrs X to say the officer was leaving or to tell her who was taking over.
32. The Council responded to Mrs X’s complaint at stage one of its complaint process in May. It said:
• It accepted the Council did not provide enough case support throughout the process. It apologised for this.
• Although it issued the final EHC plan in March after the tribunal’s order, it had not allocated B’s case to an officer. This meant the Council did not know Mrs X had requested a personal budget for B’s provision.
• The Council’s Governing Board had considered and agreed the personal budget and EOTAS package in April
• It would ensure it allocated an experienced officer to manage the case going forward.
33. Mrs X asked the Council to consider her complaint at stage two in late May. She said B still had none of the provision in the EHC plan in place except that which the family had sourced and paid for themselves.
34. In June, Mrs X told the Council she was considering applying to the courts about the Council’s failure to make the provision in B’s EHC plan. In response, the Council acknowledged it had failed to put B’s provision in place. It said it would do so as a matter of urgency.
35. The Council responded at stage two of its complaint process in July. It said:
• It had not “exercised due diligence in its duty toward [B] and ensuring [B] can access appropriate education provision”. It therefore upheld the complaint.
• The stage one response was late. It should have responded within 10 working days. Not to have done so was fault.
• The stage two response was also 8 days late.
36. In September the Council met with Mrs X and her representative. Following the meeting, it agreed to put B’s provision in place.
37. The Council put B’s provision in place in October 2023 by making a direct payment Mrs X can use to pay for provision and equipment. The Council pays this into a special account which Mrs X can only use to pay for B’s provision. The Council agreed to backdate this to September 2023. It also agreed to repay Mrs X for the period March to July, when Mrs X started paying for some provision herself to make sure B had at least some education. The Council told Mrs X it would pay her this amount directly. It said she should not withdraw from the personal budget account to reimburse these costs. However, the Council then paid this amount, over £6,000, into the personal budget account. Mrs X is therefore unable to access it. She told the Council about this by email. It did not respond.
38. Mrs X says it was only by instructing a solicitor that she could get the Council to engage with her about B’s provision. She says since she stopped communicating through a lawyer, the Council has “once again, routinely stopped responding to us.” Mrs X provided evidence demonstrating this from October 2023 onwards.

My findings

Statutory EHC process

39. The law says the EHC process should take no more than 20 weeks from receiving a request for an assessment to issuing a final EHC plan.
40. The Council should have issued B’s final EHC plan by the end of September 2021. It did not do so until March 2022. This delay of six months was fault.
41. This caused Mrs X and B avoidable distress and uncertainty. This is an injustice. It delayed Mrs X’s right to appeal the final EHC plan to the tribunal. This is a further injustice to Mrs X.

Implementing the decision of the tribunal

42. The tribunal ordered the Council to amend B’s EHC plan in February 2023. The law gives the Council five weeks to issue an amended plan. The courts have said councils should arrange the provision in the plan within these five weeks.
43. The Council issued B’s amended final EHC plan within five weeks of the tribunal’s decision. The Council has a statutory duty to secure the provision in an EHC plan. However, it failed to put any of the provision detailed in the plan in place until October 2023. This delay of six months was fault.
44. From the records, it appears that when the officer who had put together the proposed EOTAS package left the Council, the case was allowed to drift for several months. This was fault.
45. The Council should have had B’s provision in place by March 2023. The evidence shows the Council had done most of the work required to implement the provision by May. There is no evidence to show why it then took until October, and Mrs X threatening legal proceedings, for the Council to put this in place.
46. This caused B and Mrs X significant and avoidable distress and frustration. B was without all the provision required for their SEN for six months. The impact on B of this missed provision is difficult to quantify. But six months in the education of a child is a significant period and so it is likely the fault will, at least, delay B’s progress. This is a significant injustice to B.
47. To try and mitigate this, Mrs X paid for some provision herself. The Council wrongly reimbursed these costs from March to July into the personal budget account. This was fault. The Council has not confirmed to Mrs X that she can withdraw the funds from this account to reimburse her previous expenditure. Mrs X had to spend a further £2,200 between August and October which the Council has not reimbursed. This financial loss is an injustice to Mrs X.

Communication

48. The Council accepted in response to Mrs X’s complaint that its communication with her had been poor. I agree that this was the case. There is also evidence of poor communication and coordination internally.
49. The Governance Board decided B’s case should be referred to its inclusion team if B was not in school. B was not in school, which the Council knew, but it failed to refer the case to its inclusion team. This was fault. This prevented the Council from ensuring B was receiving a suitable education as expected under its policy for children educated at home. There is uncertainty about whether Mrs X and B might have received additional support from this service. This uncertainty is an injustice.
50. The Council’s policy for children missing education says the SEN service will attend CME meetings to demonstrate the efforts made to secure the provision in EHC plans. There is no evidence this occurred in B’s case. This was fault. The point of the policy is to prevent the drift evident in this case.
51. There is no evidence the Council had a way to promptly reallocate ongoing cases when an officer left the Council. This meant Mrs X received no communication from the Council after the tribunal made its decision in February until she raised a complaint in April. This was fault. Mrs X then had to chase to find out who had taken over when the case officer left in May. This was further fault. This caused Mrs X avoidable distress and uncertainty, which is an injustice.
52. The records show Mrs X frequently contacting the Council and not receiving a response or waiting weeks or months for a reply. The only period in which the Council consistently communicated with Mrs X was when she instructed a solicitor to act on her behalf. That the intervention of the solicitor was necessary to secure B’s provision is demonstrated by the Council reverting to poor communication after October 2023.
53. Mrs X should not have needed to instruct solicitors to get the Council to put B’s provision in place. It had a statutory duty to do this. Mrs X should not have needed to instruct solicitors to get the Council to engage in communication about this. Effective communication is a central part of the Ombudsman’s Principles of Good Administrative Practice, which we expect all councils to follow.
54. In the circumstances, I consider this was fault by the Council but for which Mrs X would not have needed to instruct a solicitor. Her costs in doing so were significant, causing her further and avoidable financial loss. This is an injustice to Mrs X. I have therefore recommended that the Council pay Mrs X 50% of the legal costs she incurred. This reflects that it remained Mrs X’s choice to instruct a solicitor and to choose the firm she did at the rates it charged. However, on balance, had she not done so it is likely B’s special education provision would have been delayed by at least several more months.

Complaint handling

55. The Council accepted in response to Mrs X’s complaint that it took too long to deal with her complaint at stage one. It should have responded within 10 working days. Instead, it took almost two months. This was fault. This caused Mrs X avoidable distress, which is an injustice.

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Agreed action

56. To remedy the injustice to Mrs X and B from the faults I have identified, the Council has agreed to:
• Apologise to Mrs X in line with our guidance on Making an effective apology
• Pay B £600 in recognition of the distress and uncertainty caused by the delay issuing a final EHC plan
• Pay B £4,600 in recognition of missed education provision for 30 weeks, this is based on a rate of £2000 a term.
• Pay Mrs X £2,286 to reimburse the costs she incurred securing provision for B between August and October 2023.
• Pay Mrs X a further £5000 to reimburse her avoidable legal expenses
• Identify and implement a means of ensuring Mrs X receives the amount wrongly paid into B's personal budget account, either by recovering this amount from the account and paying Mrs X via BACS or by confirming to Mrs X in writing that she can withdraw a specified amount from the personal budget account to reimburse her for the provision she paid for between March and July 2023.
57. The Council should take this action within four weeks of my final decision.
58. We have made comprehensive service improvement recommendations to this Council in response to previous complaints. These included democratic oversight of its Recovery Plan to address delays in EHC assessments and ensuring a proper hand over when there is a change in case officer. I have not repeated those recommendations here.
59. The Council should take the following further action to improve its services:
• Share a copy of this decision with relevant staff to identify learning from this complaint.
• Share a copy of the decision and the learning outcomes with the relevant scrutiny committee or cabinet member.
• Remind relevant staff of the Council’s policy on children missing education and that children with EHC plans where all the provision is not in place should be kept under review to ensure cases do not drift.
60. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman