Summary: There was a two-month delay in issuing Y’s amended Education, Health and Care Plan which caused avoidable distress and a delay in appeal rights. The Council will apologise and make Ms X a symbolic payment of £150.

The complaint

1. Ms X complained the Council failed to make educational provision for her son Y since his placement broke down in March 2023. As a result, his education and welfare suffered and Ms X suffered avoidable distress.

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The Ombudsman’s role and powers

2. 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)
3. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH [1999] EHCA Civ 916)
4. 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)
5. 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.
6. 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to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
7. We cannot investigate anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
8. 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)
9. We consider whether there was fault in the way an organisation made its 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)
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 have and have not investigated

11. The timeframe for this investigation is from March to August 2023. I have not investigated after August 2023 because Ms X had a final amended EHC Plan for Y and she has appealed Sections F (special educational provision) and I (placement) to the SEND Tribunal.
12. Ms X does not dispute Y could have an EOTAS package that the Council will commission. He is not getting this is because Ms X declined this. She wants a hybrid EOTAS package with a long transition to a named school placement. The reason Y has no education is a consequence of the disagreement about the provision in Section F and the lack of a placement on the amended Plan of August 2023. The legal cases set out in paragraphs three to seven apply and so complaints about the period after the appeal right arose are outside our remit.

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How I considered this complaint

13. I considered Mrs X’s complaint, the Council’s response and documents in this statement. I discussed the complaint with Mrs X.
14. Mrs X and the Council 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

Relevant law and guidance

15. 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. The EHC plan is set out in sections including:
• Section B: The child or young person’s special educational needs. 

• Section F: The special educational provision (SEP) needed by the child or the young person.  
• Section I: The name and/or type of school. 
• Section J: Personal Budget.

We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.

16. The council must arrange for the EHC plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.

17. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

18. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEND Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

19. The parent must have at least 15 days to comment on the proposed changes including requesting a particular school (SEND Code paragraph 9.195). If the council decides to continue with amendments, it must issue the amended final Plan as soon as possible and within eight weeks of the original amendment notice. (SEND Code paragraph 9.196)

20. A Personal Budget (PB) 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. The SEND Code says:
• A child’s parent or the young person has the right to request a PB during an annual review of an existing EHC Plan. (Paragraph 9.98.)
• There are several ways for a parent to be involved in securing provision including by a direct payment to the parent or by the council commissioning provision (Paragraph 9.101)
• The Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan. (Paragraph 9.102)
• Any disagreement about SEP to be secured through a PB can be appealed to the SEND Tribunal (Paragraph 9.108)

21. A council can arrange for SEP to be delivered in a setting other than a school or college and set out in the child’s EHC Plan. This is called education otherwise than in school (EOTAS). A council can only arrange EOTAS if it thinks provision in a school is inappropriate. (Children and Families Act 2014 section 61)

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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

23. The Council’s alternative education provision is called Wirral Home and Continuing Education Service (WHCES). WHCES provides temporary education for young people who are unable to attend school due to health needs. The service offers one to one tuition at home and small group lessons at a base with opportunities to socialise. Available subjects include Maths English Science, animal care, art, humanities and ICT. The Council’s policy on admitting pupils to WHCES dated January 2019 says that:

• The local authority retains responsibility for supporting Wirral children who are not on roll at a school whose health needs prevent them from accessing education. These may include children who are awaiting placement
• parents/carers or professionals working with a child who falls into this category should contact the Head of Service to discuss future educational provision. This may include interim provision through the HCES, in which case medical evidence will be sought as described above.

What happened

Background

24. Y’s EHC Plan of July 2021 named an independent special school placement (School A) from September 2021. Y attended School A infrequently from September 2021 to March 2023 due to anxiety.

Key events

25. There was an annual review meeting on 20 March 2023 held by School A. A case officer from the SEND team attended as well as Ms X. The record of the meeting noted:
• Y’s attendance was poor
• He was falling behind his peers and was unable to access therapies
• Ms X said she had tried everything to get him into school and once in school, he could cope. She was worried he would refuse to go out at all
• Ms X thought school was the right placement, but Y needed an adult to bridge the gap from home to school
• The SEND case officer said a transition plan could be started and then reassessment and changes to the EHC Plan
• The recommendations were for the Council to explore outreach options and to have a meeting to put a costed plan together.
26. A week after the annual review meeting, School A wrote to the case officer saying Y had not attended school for the last year due to anxiety and parental ill-health. School A said it could not meet his needs and suggested the Council offered its medical home education service.
27. In April, the SEND case officer made a request to the funding panel for OT, SLT and EP assessments/reports for Y. The internal record of the funding panel’s discussion said the outcome was the assessments requested were no longer needed as Ms X had commissioned them herself.
28. The Council issued an amendment notice and draft amendments to Y’s Plan on 17 and 19 April.
29. In the last week of June, the Council’s decision-making panel considered a letter from School A. Ms X had asked for “a complete reassessment of needs and for Y to be held back a year”. The panel noted Y would need a detailed package to allow him to catch up and Section F of his EHC Plan needed additional provision. The panel decided “No to a re-assessment…we are not looking to do a grade retention at the moment, the advice moving forward is to find a school to add him on roll and make a referral to Home Education and build that up first.”
30. The Council told me it had offered Y its Home and Continuing Education Service. The Council said Ms X did not take up its offer. Ms X did not dispute the Council offered Y the HCES.
31. The records indicate the Council agreed a personal budget (PB) and direct payment (a monetary payment for the agreed provision). Ms X sent an email to the case officer at the end of June saying she had asked for a PB for £7495 and the Council had paid £5952.40 into her account. Ms X’s email went on to set out her understanding of what the Council had said she could use the PB for. The Council confirmed Ms X’s figures and provision were what it had agreed.
32. The Council consulted with three schools in July. They all declined to offer Y a place.
33. The Council issued a third proposed amended EHC Plan at the beginning of August.
34. Ms X complained to the Council raising the same matters she has raised with us and other matters. The Council responded saying:
• It had agreed EOTAS for Y which was available. But the Council would not commission her preferred provider as it was not registered with Ofsted;
• She could have a direct payment though, but Ms X said she did not want the responsibility;
• She needed to confirm whether she wanted EOTAS with a registered provider or a PB with her preferred provider. Or the Council would name a placement in Section I that could meet Y’s needs and enable her to appeal; and
• The Council had remedied Y’s lack of education by the EOTAS package but this had been prevented because of the issue about her preferred provider not being registered with Ofsted.
35. The Council issued an amended EHC Plan on 23 August 2023. Section F set out an EOTAS package. There is no placement named in Section I (this is usual practice when EOTAS is agreed.)
36. Ms X appealed to the SEND Tribunal at the end of September. She appealed Sections B, F and the placement named in Section I. The tribunal hearing date is due in October 2024. The Tribunal made case management directions and said it would be determining:
• Specification of Y’s EOTAS package;
• Details of a quantified and specified plan to enable Y to transition to an educational setting over a long transitional period;
• Details of the provision identified in OT, EP and SALT reports; and
• The placement. Currently Section I was blank, Ms X’s preference was a community special school.
37. Ms X tried to escalate her complaint to the second stage of the Council’s complaints procedure, but the Council said in October that its complaint process “could not direct case management or resources and once Y’s provision was resolved, she could come back to the complaints team for a remedy regarding delay to be considered.”
38. Unhappy with the Council’s response, Ms X complained to us.
39. Ms X told us she accepted the Council had offered Y HCES. She also noted HCES’s current policy (October 2023) on new referrals is that students have to be on the roll of a school in order to access the service. She pointed out that Y was not on the roll of a school and so was not eligible.

Findings

40. The Council had 12 weeks to amend Y’s EHC Plan following the annual review meeting – so there should have been a final amended Plan by 12 June 2023. The final amended Plan was not issued till 23 August: a delay of over two months which was fault causing avoidable distress and a delay in appeal rights.
41. Ms X does not dispute the Council offered Y the Home and Continuing Education Service. She points to current council policy from October 2023 about students needing to have a permanent school placement. However (1) HCES is a council-run provision. So the Council can create an exception to its policy and (2) the policy Ms X seeks to rely on in support of her position was not in place until October 2023 and so did not apply at the time Y was in need of alternative education provision. The policy in place at the relevant time (March to August 2023: see paragraph 23) said the Head of Service could direct HCES to admit pupils who were not on a school roll.) By offering Y HCES, the Council fulfilled its obligations under Section 42 of the Children and Families Act 2014 and Section 19 of the Education Act 1996 and so there is no fault.
42. The evidence indicates Ms X and the Council were in discussion about a personal budget for Y shortly after the annual review meeting and the Council agreed a PB payment for an EOTAS package and made Ms X a direct payment. The delay in issuing the final amended Plan did not cause injustice on that basis. The Council has also offered Y its alternative provision for children with medical needs (HCES, see last paragraph) which would have met his needs. This is in line with the duty in Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014 and there is no fault.
43. Ms X complains about the Council’s policy not to commission education provision with providers who are not registered with Ofsted. There is nothing in law or guidance which prevents the Council from having such a policy. So I cannot criticise the Council’s decision as it is made without fault.

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Agreed action:

44. The Council will one month of my final decision:
• Apologise to Ms X for the delay in issuing Y’s final amended EHC Plan
• Make her a payment of £150 to reflect avoidable distress and delay in appeal rights.
45. We will require evidence of compliance.

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Final decision

46. There was a two-month delay in issuing Y’s amended Education, Health and Care Plan which caused avoidable distress and a delay in appeal rights. The Council will apologise and make Ms X a symbolic payment of £150.
47. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman