Summary: Miss X complained the Council failed to secure the special educational provisions outlined in her child, Y’s Education, Health and Care (EHC) Plan and delayed paying an agreed personal budget. The Council was at fault. The Council will apologise and pay Miss X £200 to acknowledge the impact of the missed provision. The Council was at fault for the delay in paying Miss X the agreed personal budget but it has already apologised and paid the outstanding payments which remedied the injustice caused. It has also put in place service improvements.

The complaint

1. Miss X complained the Council:
• failed to secure the special educational provisions outlined in Y’s final amended EHC Plans from mid-January 2023 to mid-June 2023;
• delayed providing an agreed personal budget; and
• delayed responding at stage 2 of its complaints process.
2. Miss X said this caused Y to miss out on appropriate special educational provision and suitable alternative education provision to which they were entitled, caused unnecessary distress, mental health impacts, and she was put to avoidable time and trouble.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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. 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)
7. 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.

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How I considered this complaint

8. I considered:
• the information Miss X provided and spoke to her about the complaint;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care (EHC) Plan

10. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
11. 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.

Maintaining the EHC Plan

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)
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Reviewing the EHC Plan

14. The Code says councils should review the plan at least annually. The review meeting will usually be led by the school, which should send the council a report of the meeting within two weeks.
15. Within four weeks of the review meeting, the council must decide whether it proposes to keep the EHC Plan as it is, amend the plan or cease to maintain it. It must tell the child’s parents and school its decision. If the plan needs amending the council should start the amendment process without delay and should issue an amended plan within 8 weeks of its notice to the parties that it proposes to amend the plan.

Personal budget and direct payment

16. A personal budget is the amount of money the council has identified it needs to pay to secure agreed 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 themselves.

Council complaints procedure

17. The Council has a two stage complaints procedure with stage 2 responses sent within 28 calendar days of the stage 1 escalation request.

What happened

18. Y has had an Education, Health and Care (EHC) Plan since 2021 and lives with their mother, Miss X. Y has complex special educational needs and disabilities. Y also suffers from anxiety. Y attended a secondary school, School 1 in its specialist provision for pupils with EHC Plans and autism or communication and interaction needs.
19. In late November 2022, the Council issued Y’s final amended EHC Plan. It continued to name School 1 in Section I. The specialist provision Y should receive was set out in Section F and was largely classroom based support. It noted Y should receive:
• education where there is an increased staff to pupil ratio where the staff have experience in managing challenging behaviour;
• access to small group support sessions to increase independent thinking, 10 minutes per day;
• specialist support for 15 minutes per day to build on fluency skills and teaching new concepts with the focus on the meaning of language;
• a minimum of one hour per day, one to one, small group and in class extra thinking time and response time for questions; and
• one 20 minute session weekly one to one support with self-care and personal hygiene needs through visual prompts.
20. In mid-January 2023 a meeting took place between a paediatrician, Miss X and Y. The meeting record said Y was attending School 1 but they had school based anxiety and was depressed and had behavioural challenges at home. Miss X requested a multiagency meeting at School 1 which the paediatrician said they would also attend in late January 2023.
21. Three days later, Y stopped attending School 1. Miss X kept Y at home because of their anxiety and declining mental health.
22. In late January 2023 a meeting took place at School 1 to discuss Y’s emotional needs. Miss X, School 1, the Council, Y’s paediatric consultant and an educational psychologist attended the meeting. The meeting record said Miss X would not send Y to School 1 because she was concerned about their mental health. It was jointly agreed School 1 was unsuitable for Y and a new placement would be sought for Y. It was jointly agreed School 1 would decide what provision should be put in place for Y until the Council arranged a new placement.
23. In mid-February 2023 an educational psychologist wrote a report about Y. It said Miss X informed them that Y’s mental health, mood, sleeping and eating had improved since they had stopped attending School 1 and School 1 was not the correct placement for Y. The current support outlined in Y’s EHC Plan was still needed but Y may also need some more in school support from teachers on a one-to-one basis and in small groups.
24. In mid-February 2023 School 1 held an early annual review for Y. Miss X, School 1 and Y’s Council case worker attended the annual review. Amendments were suggested to Section B of Y’s EHC Plan and a direct payment was discussed to provide Y with additional provision. No amendments were noted for Section F.
25. Within a week of Y’s annual review the Council wrote to Miss X and said it proposed to amend Y’s EHC Plan because of updated advice. It said it would issue a copy of Y’s final amended EHC Plan within eight weeks.
26. Later that month a Council decision-making panel discussed Y’s school placement. The panel agreed to a specialist school placement for Y. Miss X’s preferred placement was a specialist school, School 2.
27. A day later School 1 sent Y a home working pack. The Council said this was co produced with an autism specialist school to meet Y’s needs. Miss X was unhappy with the work pack and said Y could not engage with it and it did not provide the provision set out in Section F.
28. In early March 2023 School 1 met with Miss X about the home working pack and agreed to send a new pack for Y. School 1 also offered Y one-to-one sessions. The Council said Miss X declined the one-to-one sessions offered. Miss X said she was not offered one-to-one sessions and she was the one that asked for one-to-one online tutoring sessions for Y but the Council told her that was not available and could only be provided by School 1.
29. In mid-March 2023 Miss X emailed the Council for information on how to set up a personal budget for Y. Miss X submitted a personal budget request to the Council five days later. She said Y’s needs were not being met and online mentoring sessions would help Y.
30. In mid-April 2023 the Council issued Y’s amended final EHC Plan which named School 2 from mid-April 2023. No changes were made to Section F and Y’s provision remained the same as that set out in paragraph 19 above. On the same day the Council sent Miss X it’s decision letter and appeal rights to the Special Educational Needs and Disabilities (SEND) tribunal. Miss X did not appeal to the SEND tribunal. Due to an internal school issue, Y was not able to attend School 2 in mid-April 2023. The Council said Y was still on roll at School 1 and School 1 was still providing provision for Y.
31. Two days later Miss X emailed the Council for a personal budget update. The Council responded a week later and said Y’s personal budget for online mentoring sessions between late March and late July 2023 had been agreed.
32. In late May 2023 Miss X wrote a formal complaint to the Council. She said Y had been out of education for five months because School 1 had not met Y’s needs resulting in a decline in Y’s mental health. Miss X said the Council had failed to meet Y’s EHC Plan provision and the Council was in breach of its Section 42 duty. She said no alternative provision had been offered and School 1 had been unsupportive.
33. In early June 2023 the Council sent Miss X its response to the stage 1 complaint. It did not uphold her complaint and said:
• as Y was not attending school not all Section F provision for support within a classroom environment could be provided;
• School 1 provided appropriate work packs for Y, offered modified hours of attendance, checked in on Y weekly and conducted several home visits;
• it approved a personal budget for online mentoring sessions between late March 2023 and late July 2023 when Y started to attend School 2; and
• a new placement at School 2 was agreed for the start of the summer term 2023 but due to an internal issue at School 2 Y would start in mid-June 2023. It said Y remained on roll at School 1 until that time and School 1 remained responsible for Y’s education provision.
34. Miss X was unhappy with the stage 1 response and escalated her complaint to stage 2.
35. In mid-June 2023 Y started to attend School 2. Y’s attendance records show initially Y had taster days and attended School 2 part-time and Y attended full time on the last two weeks of the academic year.
36. In late June 2023 Miss X emailed the Council and complained her personal budget payments had still not been paid and she had paid for the online mentoring sessions. A week later the Council paid for Y’s online mentoring sessions on to a prepayment card. Miss X told the Council she was unhappy the direct payments for the online mentoring sessions were stopping. The Council said the online mentoring sessions were only agreed until Y started attending School 2. The Council agreed to extend the online mentoring sessions until late August 2023.
37. In early August 2023 the Council sent Miss X its stage 2 complaint response and apologised for the delay in responding to her complaint which was due to resources in the complaints team. It also apologised Miss X had still not received the funding for the online mentoring sessions and would ensure the agreed budget was paid.
38. Miss X remained unhappy and contacted us.

Enquiries

39. The Council said in response to my enquiries it had delivered training to officers handling personal budget requests so they understood prepayment cards for personal budgets. It said it had also updated the Council’s personal budget guidance and provided training to relevant officers.

My findings

Section 42 provision

40. As soon as the Council was aware Y was not attending School 1 in mid-January 2023 the Council quickly investigated. The Council attended a multi-agency meeting in late January 2023 where a joint decision was made that School 1 was unsuitable for Y. An early annual review was arranged and a panel held in late February 2023 made the decision to change Y’s placement and issued a new final EHC Plan naming a new placement for Y to attend from mid-April 2023. This was in line with the statutory timescales and was good practice.
41. While the Council was considering Y’s placement it agreed in the multi-agency meeting that School 1 would provide work packs for Y which it considered was appropriate for Y’s needs and were co-produced with an autism specialist school. School 1 also sent new packs when Miss X had concerns the initial packs were not suitable for Y’s needs. The Council said School 1 offered one-to-one sessions for Y but she declined the offer. Miss X disagreed School 1 offered one-to-one sessions for Y and said she asked for one-to-one online tutoring sessions for Y which she said the Council told her were not available. I am satisfied on the balance of probabilities School 1 did offer Y one-to-one sessions but Miss X did not take School 1 up on the offer. The Council also provided payments for online mentoring sessions for Y in the interim. During that time School 1 remained available to Y. The Council was not at fault between late February and mid-April 2023.
42. Y’s final amended EHC Plan named School 2 in Section I from mid-April 2023 but there was an internal issue at School 2 which meant Y could not attend until mid-June 2023. This was outside the Council’s control and so was service failure.
43. During this time the Council relied on the package of support it had already arranged through School 1 and the online mentoring sessions. It would have been difficult for the Council to have arranged new provision for eight weeks and a change in provision for a short time may not have suited Y and their anxiety. The continuation of support from School 1 and the online mentoring sessions was seen as the best options for Y. However, Y did not receive the school-based provision set out in Section F of their plan between mid-April and mid-June 2023 and was fault and meant Y did not receive all the provision they were entitled to.
44. In June 2023 Y started to attend School 2 for taster days and an initial part-time timetable. This was an appropriate transition for Y because they had been out of an education setting for five months and was still receiving the online mentoring sessions. The Council was not at fault between mid-June and the end of the academic year in July 2023.

Personal budget

45. The Council was at fault for the delay in making an agreed personal budget payment to Miss X. Miss X made the request in March 2023 and a panel agreed the direct payment for online mentoring sessions for between late March 2023 and late July 2023. Miss X initially had to pay for the online mentoring sessions. The Council did make the payment onto a prepayment card in summer 2023. The Council has already apologised for the delay and paid back the money which remedied the frustration caused to Miss X. The Council has also put service improvements in place by providing training to relevant officers and updating its guidance which was appropriate.
46. Miss X complained the Council stopped the online mentoring sessions for Y. The Council is not under any duty to secure provision not in an EHC Plan. Y’s online mentoring sessions were not part of Y’s EHC Plan provision. However the Council agreed to pay a direct payment for the sessions whilst Y was not attending an educational placement. The Council extended the online mentoring sessions from late July to late August 2023 which was a decision it was entitled to make. There was no fault in the Council’s actions.

Complaints handling

47. The Council was at fault for the delay in sending Miss X’s stage 2 response. The response was a month over the 28-day calendar timescale. This caused Miss X frustration. The Council has already apologised for the delay which was an appropriate remedy for the injustice caused.

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Agreed Action

48. Within one month of the final decision the Council will apologise and pay Miss X £200 to acknowledge the impact of Y’s lost provision between mid-April and mid-June 2023. This is in line with the Ombudsman’s guidance on remedies.

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Final decision

49. I have completed my investigation finding fault causing injustice some of which the Council has already remedied. The Council has also agreed to remedy the injustice caused for the impact of lost provision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman