Summary: There was delay by the Council in securing special educational provision in an Education, Health and Care Plan which meant a young person received no education for over nine months. The Council will apologise, make symbolic payments for the injustice caused and carry out service improvements. The complaint is upheld.

The complaint

1. Ms X complains the Council failed to secure provision in her child’s Education, Health and Care (EHC) Plan issued in Spring 2023.
2. Ms X also complains the Council named a school in Section I of the EHC plan instead of an education otherwise than at school (EOTAS) package via a personal budget.
3. As a result of the alleged fault, Ms X’s child was without any education and Ms X paid privately for educational and leisure activities. Ms X’s child had been out of education due to emotional-based school avoidance since 2019.

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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. We consider whether there was fault in the way an organisation made a decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
8. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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)

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What I have and have not investigated

11. I have not investigated the period between 2019 and Spring 2023 when Ms X’s child was out of school and not receiving education. Ms X did not raise a complaint with the Council about this period at the time, or subsequently. We cannot look at complaints where the Council has not had an opportunity to investigate and respond first. We also do not usually look at complaints where the events took place more than twelve months earlier.
12. I have not investigated the Council’s decision to name a school in Section I of the final EHC Plan issued in Spring 2023 instead of an EOTAS package. Ms X had a right of appeal to the Tribunal if she was dissatisfied with the provision or placement in the Plan, which we would expect her to use. The Ombudsman has no power to tell a council what placement to name in an EHC Plan. Only the Tribunal can do this.
13. I have investigated whether Ms X’s child missed out on suitable fulltime education (under Section 19 Education Act 1996) and the special educational provision in Section F of their EHC plan (under Section 42 of the Children and Families Act 2014), from when the final EHC Plan was issued. I have investigated the period February 2023 to December 2023. It is accepted that Ms X’s child was not able to attend their named school during this period due to their emotional based school avoidance, and a reintegration plan was provided for in the Plan. I consider that it was reasonable for Ms X not to appeal in February 2023 when she was expecting the Council to arrange funding to support a reintegration to formal education and she was willing to engage with this. The reason the provision was not made was not because Ms X was opposed to it.
14. I have also investigated the Council’s handling of Ms X’s request for a personal budget. Decisions about personal budgets do not carry a right of appeal to the Tribunal and so are within our jurisdiction.

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How I considered this complaint

15. I have considered information provided by the Council and Ms X including:
• Complaint documents
• EHC plan.
16. I have also spoken to Ms X by telephone.
17. I have considered relevant law and statutory guidance including:
• The Education Act 1996

•      The Children and Families Act 2014 (‘The Act’)

•      The Special Education and Disability Regulations 2014

•      The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)

• The Special Educational Needs (Personal Budget) Regulations 2014.
2. I have considered the Ombudsman’s Guidance on Remedies.
3. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
4. 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 found

Relevant law and guidance

21. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
22. The EHC Plan is set out in sections which include:  
• Section B: 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 educational placement  
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.  
23. We cannot direct changes to the sections about needs, education, or the name of the educational placement. Only the Tribunal or a council can do this.
24. There is a right of appeal to the Tribunal against the description of a child or young person’s special educational needs, the special educational provision specified, the school or placement or that no school or other placement is specified. There is no right of appeal about Section J, Personal Budgets. There is a two month time period to initiate an appeal.
25. If a Council considers that some, or all, of a child’s education cannot be met in any school, then under s.61 Children and Families Act it can arrange for the child to receive education otherwise than at school (EOTAS). The Courts have said where EOTAS is included in an EHC Plan it should be included in Section F, not Section I.
26. 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.
27. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan of (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)  
28. Where an EHC plan is maintained for a child the local authority must secure the special educational provision in the plan, including securing a place in a school named in the plan. The Council is only relieved of this duty if the family has made its own arrangements such as in an independent school or elected to home educate. (The Code 9.131-2)
29. Councils must provide information on personal budgets for special educational provision and must have a policy setting out eligibility criteria, the decision-making process and the parent’s right to request a review if they disagree with a decision to refuse direct payments. Direct payments are where individuals receive the cash to contract, purchase and manage services. Councils must allocate enough budget funding to secure the agreed provision in the EHC Plan and set out details of any personal budget in Section J, including the special educational needs and outcomes to be met via the budget.

What happened

30. Ms X’s child had been unable to attend the school where they were on roll since 2019 due to emotional-based school avoidance.
31. In 2022 the Council carried out an EHC needs assessment.
32. In Spring 2023 the Council issued a final EHC plan. This named the school Ms X’s child had attended up to 2019, and where they child remained on roll, as the placement in Section I. The Plan set out a reintegration package to this school where it considered Ms X’s child should remain on roll until the end of the summer term and then named a type of placement (further education college) from September 2023.
33. Ms X did not appeal within the two-month time limit.
34. Ms X complained to the Council in May 2023 about its decision to name a school and then college in Section I instead of EOTAS, but also complained that funding had not been put in in place for the school to provide the reintegration package in Section F. As a result, her child remained without education. Ms X asked the Council to reimburse her for missed education since the final EHC plan was issued in Spring 2023.
35. The Council responded to the complaint in June. It had overlooked correspondence from the school and said it would action the funding urgently. It advised Ms X if she disagreed with the placement in the EHC plan she needed to use her right of appeal to the Tribunal. Ms X did not appeal but would also have bene out of time. The Council did not provide the funding.
36. Ms X complained to stage two of the complaints process. By the time the Council responded to the stage two complaint in September, events had moved on. The Council’s panel had met and agreed to consider naming an online learning provider and to provide a personal budget for other educational activities and a laptop. The Council said this had been agreed with Ms X as meeting her child’s needs. The Council therefore regarded the complaint as resolved. The Council did not address Ms X’s request for reimbursement for missed education between Spring 2023 and September 2023.
37. The Council acknowledged in its complaint response there had been significant delays in it providing suitable education and said this was due to increasing demands and limited resource.
38. Ms X told me there was no intention of her child attending school in Spring / Summer 2023 instead the intention was to provide funding to the school via the EHC Plan, which would in turn provide this to Ms X to re-engage her child in purposeful activities outside of school after a long absence from formal education. Ms X said this would include climbing and swimming sessions as well as nature trips. Ms X told me she was spending approximately £30 per week on activities to occupy and stimulate her child while they were out of education. Ms X told me the school tried to contact the Council multiple times about the funding, but a staff member had left, and their messages were not being checked or responded to.
39. Ms X told me she did not know why the case had gone back to panel in September or what was decided. Ms X says while she has now received direct payment funds, these only arrived in early December after another officer contacted her and apologised for further delay.
40. Ms X told me she is unclear what special educational needs or outcomes the direct payments are supposed to cover. Ms X says she is fearful of spending the money in case she spends it in a way which will later be challenged by the Council. Ms X says currently academic tuition, either face to face or online, is not suitable and the priority is to get her child back into a regular routine of activities they enjoy and then work towards re-engagement in formal learning.
41. The Council told me it has not made a decision Ms X’s child is unable to attend any school, which is what would be required for EOTAS to be named in the EHC Plan. The Council told me it is providing a package of support while it explores options and matters are finalised. It agrees an annual review of the Plan is required.

Analysis

42. The Council issued a final EHC plan in February 2023 naming the current school but with a reintegration plan to be implemented before Ms X’s child would attend. While Ms X complained about the failure to name EOTAS in May 2023, I consider it was reasonable she did not appeal the February Plan; she was content to engage with the reintegration plan and there was agreement her child was not ready to attend at that time. Ms X had expected the Council to provide the funds to school in February to facilitate a gradual reintegration.
43. The Council acknowledges that it failed to secure the special educational provision in the EHC plan or any other education while the child was unable to attend the named placement. This was fault. While it is clear Ms X’s child was not ready to re-engage with fulltime formal education, the reintegration plan should have started in February. The funding was only provided in December, a delay of over nine months. During this period Ms X’s child received no education support except for activities which Ms X funded herself. While it is uncertain when Ms X’s child will be ready to engage in formal learning, their progress towards this goal has been set back.
44. The fault caused unnecessary uncertainty, time and trouble to Ms X and her child.
45. While the Council acknowledged the funding delay in its stage two response in June, and says it would urgently address this, nothing appears to have happened. The failure to follow up an agreed outcome in a complaint response was further fault. The Council also did not respond to the request for a financial payment to remedy the impact of the fault. This has meant Ms X has had to bring her complaint to the Ombudsman, even though the fault is admitted, and the Council could have offered a payment through local resolution.
46. It is a principle of the Code that in carrying out their functions under the Act councils must have regard to the views, wishes and feelings of the young person and their parents and must let the young person and parents participate as fully as possible in decision-making. The Council has recently provided a personal budget, but Ms X does not appear to have been kept informed of the Council’s thinking, or involved in the proposal for online learning and direct payments which went to a panel in September. This is fault.
47. There was then further delay between September and December before funding was provided to Ms X to start to secure provision. This is fault and caused further injustice.
48. Our Guidance on Remedies recommends a symbolic payment where education has been missed ranging between £900 to £2400 per term depending on whether the young person has special educational needs, whether provision was full or part-time and whether the provision was missed at a critical stage such as an exam year.
49. Ms X’s child currently has an EHC Plan which, although issued in February 2023, is already out of date. The Plan is written as though provision is being delivered in a setting after a reintegration package. Section J of the current Plan does not include a personal budget. The Council told me it agrees the Plan needs to be reviewed. Ms X needs to be provided with clear information about what is expected of her in using the direct payments. After the review Ms X will gain a further right of appeal so, if she is dissatisfied with the provision the Council intends to make, she can ask the Tribunal to amend the Plan.

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Agreed action

Within four weeks of my final decision:

50. The Council will apologise for the further fault identified in this decision statement.
51. The Council will pay Ms X on behalf of her child £3500 for the period of lost education between February and December 2023. This takes into account that the education would not have been fulltime in any event, but that Ms X’s child has missed out on special educational provision and the opportunity to make progress towards starting formal exam preparation.
52. The Council will pay Ms X £300 for her distress, the uncertainty and her time and trouble in bringing the complaint.
53. The Council will reimburse Ms X £1000 towards her out of pocket expenses in providing leisure and educational activities for the period of over nine months while her child was without any education.
54. The Council will contact Ms X to arrange a meeting to review and amend the EHC Plan to reflect the current position and to clarify what the direct payments can be used for, what special educational provision Ms X is expected to commission, and what outcomes the Council expects Ms X’s child to achieve via the provision by the next review. The Council should issue an amended final plan giving Ms X fresh appeal rights within statutory timeframes for reviews.

Within two months of my final decision:

55. The Council will consider what lessons can be learned from this complaint with particular focus on:
• Involving parents and young people in decision-making and keeping them informed when circumstances change.
• Ensuring the Council has robust processes in place to check that provision in an EHC Plan is secured and the legal duty under s.42 of the Act is properly discharged.
• Ensuring it has robust processes in place to check or redirect emails when officers are absent or leave their employment and inform parents of changes to case officers.
• Ensure personal budgets are properly specified in Section J and EHC Plans are kept up to date when circumstances change.
• Consider providing symbolic payments in line with the Ombudsman’s Guidance at local resolution stage where injustice has been caused and ensure complaint actions are followed up.

The Council should advise the Ombudsman of what changes it has implemented as a result of this complaint.

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

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Final decision

57. I have completed my investigation. There was fault and delay in the handling of a new EHC Plan which led to a young person missing out on over nine months of education. There was also a failure in the Council’s complaint handling and in keeping Ms X informed. I am satisfied the agreed actions set out above are a satisfactory resolution to the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman