Summary: Mrs X complains the Council failed to provide special educational needs provision for her child D in line with their Education, Health, and Care Plan. There was fault by the Council which caused D to miss provision and caused financial loss to Mrs X because she paid for some provision herself. The Council’s fault also caused avoidable distress for D, and avoidable distress, time, and trouble for Mrs X. The Council agreed to apologise, pay a financial remedy, and review relevant processes.

The complaint

1. Mrs X complains the Council failed to provide special educational needs (SEN) provision for her child D in line with their Education, Health, and Care (EHC) Plan, from January to July 2023. She also says the Council failed to respond to her queries and complaints about this.
2. Because of this Mrs X says:
• D missed special educational provision. They felt isolated which caused them distress. They now have limited options for their GCSE subjects because of missed provision, and Mrs X believes it will take them longer to achieve their GCSEs;
• Mrs X was caused distress and time and trouble in chasing up the Council; and
• Mrs X experienced a financial loss because she paid for some provision for D herself. She also experienced a loss of income because she had to stay at home with D.
3. Mrs X wants the Council to:
• repay her for money she spent on special educational provision for D, and compensate her for loss of income;
• compensate D for the missed educational provision, missed opportunities due to limited GCSE options, and the fact they were delayed in being able to return to an educational setting;
• provide Mrs X with a copy of the action plan it agreed to create to address faults the Ombudsman identified in a previous complaint she made about D’s EHC Plan. Mrs X wants the Council to provide reassurance it will now properly address these failings; and
• arrange training for its staff to ensure all staff are aware of the process for immediately arranging EHC Plan provision funding for children who are educated otherwise than at school (EOTAS).

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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. 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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How I considered this complaint

8. I considered:
• information provided by Mrs X and discussed the complaint with her;
• documentation and comments from the Council; and
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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

Legislation and statutory guidance

Education, Health, and Care (EHC) Plans

11. A child or young person with special educational needs (SEN) 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.
12. 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 (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)  

EHC Plan appeal rights

13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
14. Once the Council issues a final EHC Plan, there is a right of appeal to the SEND Tribunal against the description of the child’s SEN, the SEN provision specified, the school or placement specified, or the fact that no school or other placement is specified.
15. 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)
16. 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.
17. 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 we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

EOTAS (Education Otherwise Than At School)

18. Councils have the power to arrange education and SEN provision to be delivered otherwise than at a school or institution (EOTAS), where it would be inappropriate for a child to attend a school setting. (Children and Families Act 2014 Section 61).

Background

19. Mrs X’s child, D, has special educational needs (SEN). In the 2022/2023 school year, D was in year 9.
20. In October 2022, the Council issued D with their first EHC Plan. This said D should be Educated Otherwise Than At School (EOTAS), and set out a package of provision D should receive. We previously investigated a complaint from Mrs X because the Council delayed in issuing this first Plan, and then delayed in securing the provision set out in the Plan, until December 2022. We found fault and the Council agreed to our recommendations to remedy the injustice caused.
21. Mrs X appealed to the SEND Tribunal about the content of the October 2022 Plan. Mrs X and the Council continued to work on the Plan while awaiting Tribunal consideration. In April 2023, they reached an agreement about the Plan content and the Tribunal approved this. The Council issued the amended final EHC Plan for D on 17 April 2023.
22. After the Council issued the April 2023 EHC Plan, Mrs X continued to contact the Council to ask for clarity on how D’s EHC Plan provision would be funded and arranged. When the school year ended in July 2023, Mrs X made a complaint to the Council, that it had still not secured the provision in D’s EHC Plan.
23. In September 2023, D returned to a school setting. The Council amended D’s EHC Plan to name the special school, and their SEN provision began being delivered in school.
24. Also in September 2023, eleven weeks after Mrs X complained, the Council had not yet responded to the complaint. Mrs X brought her complaint to the Ombudsman. The Council told us it had a backlog of complaints but was working to respond to Mrs X. In January 2024, the Council had still not responded, so we decided to begin our investigation.

My findings

Before the Council issued the April 2023 EHC Plan

25. When we considered Mrs X’s previous complaint, the Council agreed to our recommendation to remedy education D missed up to December 2022.
26. Mrs X continued to arrange and fund some SEN provision herself after this, in the spring term of the 2022/2023 school year. This was provision she thought should be in D’s EHC Plan, and which the Council eventually agreed to add to the Plan during the SEND Tribunal appeal process. Mrs X wants the Council to repay her for this extra provision she paid for herself before it agreed to include it in the Plan and issued the amended April 2023 EHC Plan. She says if the Council had issued the original Plan in line with her wishes, she would not have had to appeal to Tribunal, or fund the extra provision herself in the interim.
27. As we explained when we investigated Mrs X’s previous complaint, this is not something the Ombudsman can consider. As explained at paragraphs 13 to 17, the courts have established that where someone has appealed to the SEND Tribunal, we cannot investigate any matter which was connected to the appeal. The claimed injustice of the missed extra provision is a consequence of the issue Mrs X appealed to Tribunal, that is, that she wanted that provision included in D’s Plan.
28. I can only consider whether the Council secured the provision in the April 2023 EHC Plan after it issued it.

After the Council issued the April 2023 EHC Plan

29. The April 2023 EHC Plan set out the provision D should receive as part of their EOTAS package. I have summarised the key provision D should have received for the remainder of the 2022/2023 school year, according to the Plan, in the table below. I have also explained my view, on the balance of probabilities, about what D received.
30.  

31. The Council did not meet its duty to secure the provision set out in D’s April 2023 EHC Plan. This was fault.
32. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether every pupil with an EHC Plan is receiving all their SEN provision. However, we consider councils should be able to demonstrate due diligence in discharging this important legal duty. As a minimum, the Council should have systems in place to:
• check the special educational provision is in place when it issues a new or substantially different EHC Plan, or there is a change in educational setting;
• check the provision at least annually via the EHC Plan review process; and
• investigate complaints or concerns that provision is not in place at any time.
33. We would have expected the Council to check the educational provision in D’s post-Tribunal EHC Plan was in place, after it issued the Plan. Also, in this case Mrs X regularly raised concerns with the Council about delivery of the Plan, so it should have quickly investigated this.
34. I am not satisfied the Council made reasonable efforts to secure the provision once it issued the Plan, and then to investigate and resolve the issues reported by Mrs X. This was fault which meant D missed SEN provision they were entitled to. The Council should remedy the injustice caused from the point it issued the Plan on 17 April 2023, to the end of the 2022/2023 school year. This is one term of education.
35. As set out in our guidance on remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of SEN support, such as direct therapies and interventions, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of SEN provision missed and the impact of this on the child.
36. In deciding an appropriate financial payment to recognise the impact of D’s missed SEN provision, I considered the following.
• During this period, D was in year 9 of secondary school. As set out in our guidance on remedies, we do not consider this to be one of the most significant periods in a child’s school career, as we would say for the first year of secondary school, or a public exam year.
• D received some SEN provision set out in their EHC Plan (most of which was arranged and paid for by Mrs X). However, they missed key interventions such as cognitive behavioural therapy and mentoring. This may have had a significant impact on their ability to access and engage with their education.
• I consider D would have been able to engage with all the provision in their Plan, had it been available to them.
• Mrs X said she spent £1,238.80 on the provision she arranged for D herself from April to July 2023, so experienced a financial loss. The Council said it repaid Mrs X for all the costs she incurred. However, I am not satisfied the Council fully repaid Mrs X. I find the Council was mistaken about this, and the costs it already repaid to Mrs X covered a previous period before April to July 2023. I am not satisfied the Council properly reviewed the information Mrs X provided about costs she incurred and ensured it had repaid this in full.
37. Based on this, the Council should:
• repay Mrs X the £1,238.80 she spent on provision for D in the final term of the 2022/2023 school year, to remedy her financial loss;
• pay the family a further £800 to recognise the provision D missed entirely in that same term; and
• make a further payment to recognise the distress caused to D and Mrs X by the Council’s failings.

Communication and complaint handling

38. The Council accepted fault in how it communicated with Mrs X about her queries and concerns. It accepted it delayed in responding to the complaint, which meant she did not receive a response and had to approach the Ombudsman. It also accepted it did not keep Mrs X updated during the delays.
39. This caused Mrs X distress and frustration, for which the Council should provide a remedy.

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Agreed action

40. Within one month of our final decision the Council will:
1. apologise for the faults identified and the impact of those faults on the family. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology;
2. pay the family a total of £2,638.80 comprising of:
1. £1,238.80 to repay Mrs X for provision she arranged and funded herself in the final term of the 2022/2023 school year;
2. £800 to recognise the provision D missed in that same term;
3. £400 to recognise the avoidable distress, time, and trouble caused to Mrs X by the Council’s failings; and
4. £200 to recognise the avoidable distress to D.
41. Based on the faults identified in this case, I would usually propose recommendations for the Council to improve its services to ensure it:
• meets its duty to ensure SEN provision outlined in a final EHC Plan is in place immediately; and
• communicates properly with families and responds fully to complaints within the timescales set out in its complaints procedure.
42. Ofsted and the Care Quality Commission (CQC) inspected the Council’s special educational needs and disability (SEND) service in 2019 and identified nine areas of significant weakness, including the quality of the EHC Plan process. In September 2022, Ofsted and CQC inspected again and identified inadequate progress in all areas of weakness. Following this, in March 2023, the Department for Education (DfE) issued a SEND Improvement Notice. In August 2023, the Council published an Improvement Plan (Accelerated Progress Plan). In this document the Council set out specific actions for improvements to its SEND services, some of which we have been monitoring as part of our casework. This included various actions to address issues with the EHC Plan process, and poor communication with families, with new processes introduced around the same time Mrs X complained in mid-2023. Therefore, I have not made further recommendations in areas which I consider are being suitably addressed and monitored by DfE.
43. I have also not made recommendations to address complaint handling delays. The Council accepted, following recent Ombudsman report 22003403, there were issues with its complaint handling timescales. It has informed the Ombudsman of its plan to clear this backlog and continues to update us on progress.
44. Within three months of our final decision the Council will review the process it follows after it issues a final EHC Plan, to ensure it meets its duty to immediately secure the SEN provision in the Plan. It will:
1. specifically consider its practice for securing the Plan where a child is Educated Otherwise Than At School (EOTAS); and
2. decide whether it needs to make any administrative changes to its processes, or deliver training to staff, to ensure this is not missed in future, as it was in D’s case.
45. The Council will provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation. There was fault by the Council which caused D to miss provision and caused financial loss to Mrs X because she paid for some provision herself. The Council’s fault also caused avoidable distress for D, and avoidable distress, time, and trouble for Mrs X. The Council agreed to our recommendations to remedy this injustice and review relevant processes.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman