Summary: Miss X complains the Council failed to ensure her son, Mr Y, received suitable education or support for his special educational needs. There was fault by the Council which caused Mr Y to miss special educational needs support. It also caused avoidable distress for Mr Y and Miss X. The Council agreed to apologise, pay a financial remedy, and properly consider Miss X’s request for a Personal Budget for Mr Y’s Education, Health, and Care Plan. The Council will also issue reminders to staff in its special educational needs service.

The complaint

1. Miss X complains on behalf of her son, Mr Y, who is a disabled young person with an Education, Health, and Care (EHC) Plan. She says the Council failed to ensure Mr Y received suitable education or support for his Special Educational Needs (SEN) when he was out of school from 2016 to 2024. Miss X also says the Council communicated poorly and did not properly respond when she raised queries and complaints about this.
2. Because of this Miss X says:
• Mr Y missed several years of suitable education and SEN support. He could not gain any qualifications despite being capable of GCSEs, and now cannot go to university as he wishes. Mr Y missed socialisation with his peers and became isolated. He was distressed, anxious, and frustrated;
• Miss X experienced distress, time, and trouble in trying to resolve the issues for her son; and
• the whole family, including Mr Y’s stepfather and two younger siblings, also experienced distress.
3. Miss X wants the Council to:
• provide funding for Mr Y to get a suitable education and SEN support, via Education Otherwise Than at School (EOTAS);
• compensate Mr Y for the missed education and SEN support, and the distress caused; and
• compensate Mr Y’s family for the distress caused.

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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 may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), 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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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

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

Education, Health, and Care (EHC) Plans

12. 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.
13. 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 reviews

14. 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 parent 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.
15. Within four weeks of a review meeting, the council must notify the child’s parent or the young person 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) 
16. 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 SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
17. Following comments from the child’s parent or the young person, if a council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the proposed amendments to the parents. (SEND Regulations 2014 Section 22(3), and SEND Code paragraph 9.196)

Personal Budgets

18. A Personal Budget 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. 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 in the EHC Plan themselves.
19. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
20. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
21. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.
22. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.

Alternative education while out of school

23. 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.
24. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. This means councils are not required to provide alternative provision after year 11. (Statutory guidance ‘Alternative Provision’ January 2013)

EHC Plan appeal rights

25. 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.
26. There is a right of appeal to the SEND Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment; and
• once a council issues a final EHC Plan, the description of the child or young person’s SEN, the SEN provision specified, the school or placement specified, or the fact that no school or other placement is specified.

EOTAS (Education Otherwise Than At School)

27. 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).
28. Where a child is to receive some provision in a school setting, that school should be named in Section I of their EHC plan. However, any provision which is to be delivered otherwise than at a school should be clearly set out in Section F of the plan. If all the child’s provision is to be EOTAS, then this should be specified in Section I of the plan instead of naming a school.

Background

29. Miss X’s son, Mr Y, has had an EHC Plan since primary school. In 2016, when Mr Y was in year 8, issues began with his attendance, which then continued throughout year 9. In years 10 and 11, Mr Y received educational provision at home from the Council’s home education service.
30. In September 2019, Mr Y began post-16 education. The Council issued an amended EHC Plan in October, which named a post-16 placement.
31. In April 2021, Mr Y had been on roll at the same post-16 placement for nearly two years but had attended little. The placement held an annual review meeting to update Mr Y’s EHC Plan, which was attended by the Council and Miss X, but not Mr Y. Miss X asked the Council to carry out a reassessment of Mr Y’s needs, and provide a personal budget so she could arrange a package of Education Otherwise Than at School (EOTAS) for Mr Y.
32. In summer 2021, Mr Y’s post-16 placement ended, as he was now 18 years old. Miss X provided details to the Council of a proposed EOTAS package. The Council considered this and asked Miss X to provide further information about what provider should deliver the EOTAS, but Miss X did not respond.
33. In September 2021, Miss X complained to the Council because no educational provision had been arranged for Mr Y. In February 2022, following consideration at both stages of its complaints procedure, the Council issued a final complaint response. It asked Miss X to provide further information about what provider should deliver EOTAS for Mr Y. It directed her to the Ombudsman if she was dissatisfied with the complaint outcome.
34. In May 2022, nearly a year after Mr Y’s post-16 placement ended, Miss X complained to the Council again. She said she had provided all information requested by the Council but heard nothing further about educational provision for Mr Y. The Council responded to the complaint and held an EHC Plan review meeting in July 2022. It asked Miss X to provide further details of the proposed EOTAS package for Mr Y. Miss X did not respond to escalate her complaint to Stage 2.
35. In March 2023, nearly a year after the previous complaint response, Miss X provided details of a proposed EOTAS package to the Council. The Council considered this in July 2023 and decided it needed to update Mr Y’s EHC Plan before it could decide about EOTAS. It did not communicate this decision to Mr Y or Miss X.
36. In September 2023, Mr Y had not had an educational placement for two years. Miss X complained again. The Council responded to the complaint in October 2023. It said it would arrange updated assessments of Mr Y’s needs, amend his EHC Plan, then decide next steps. Miss X escalated her complaint to Stage 2, but the Council said it could not add anything to the Stage 1 response, so directed her to the Ombudsman. Miss X brought her complaint to us in February 2024.
37. In April 2024, before we began our investigation, the Council issued an amended EHC Plan for Mr Y. This did not specify an EOTAS package in Section F of the Plan, or name an educational placement in Section I. The Council told Miss X about her right to appeal the Plan to the SEND Tribunal.

My findings

Time period investigated

38. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons to. Miss X came to the Ombudsman in February 2024, so we would usually only look at what happened from February 2023.
39. I decided to investigate events from January 2023, up to the end of the 2023/2024 school year when we began our investigation. I do not consider there are good reasons to look back further, as I am satisfied Miss X could have complained to the Ombudsman earlier about events before this. The Council first directed Miss X to the Ombudsman in December 2021, following her first complaint made after Mr Y’s post-16 placement ended.

Alternative education while out of school

40. The Council’s duty under section 19 of the Education Act 1996 to provide suitable alternative education for children out of school only applies to children of compulsory school age.
41. In January 2023, at the point my investigation begins, Mr Y was 19 years old, so no longer of compulsory school age. Therefore, the Council did not have a duty to secure him suitable alternative education, equivalent to full-time.
42. However, the Council’s duty under section 42 of the Children and Families Act, to ensure young people receive the SEN provision set out in section F of their EHC Plan, still applied. This applies until the Council issues a decision to cease to maintain the Plan, or until the person turns 25 years old.

Delivery of provision in Section F of the EHC Plan

43. From January 2023 to April 2024, Mr Y’s latest final EHC Plan was dated 7 October 2019. It was the SEN provision set out in Section F of this Plan the Council had a duty to ensure was in place. The Council accepted Mr Y did not receive this provision, despite Miss X repeatedly raising concerns about this, which was fault. This fault caused an injustice to Mr Y, which the Council should provide a remedy for.

Review of EHC Plan including request for personal budget and EOTAS

44. In March 2023, When Miss X proposed an EOTAS package and asked for a personal budget, the Council agreed to consider this. In July 2023, the Council considered this internally and decided it would need to review and update Mr Y’s EHC Plan before it could seek approval for EOTAS. It did not communicate this decision to Miss X, or act to arrange an EHC Plan review, which was fault.
45. In September 2023, Miss X had not heard further about her request, so complained. In response to the complaint the Council then said it would need to review and update Mr Y’s EHC Plan before it could seek approval for EOTAS. Once the Council decided to review the Plan, it should have sought views from Mr Y and Miss X and arranged an EHC Plan review meeting. It did not do this, which was fault.
46. The Council sent Miss X proposed amendments for the Plan on 17 October 2023. It then should have issued a final amended Plan within 8 weeks. The Council issued the final amended Plan on 29 April 2024, 20 weeks later than it should have done. This delay was fault.
47. Once the Council issued the final amended Plan, Miss X had the right to appeal to the SEND Tribunal about the SEN provision specified in Section F, or the decision not to name an educational setting in Section I. The Council told Miss X about her appeal rights, and I consider it reasonable for her to have used them.
48. However, when the Council issued the final Plan, it also should have properly responded to Miss X’s request for a personal budget. There was no personal budget allocation set out in the final Plan. The Council did not respond to Miss X to explain what decision it had made about her request for a personal budget to arrange EOTAS herself. This was fault.

Injustice caused to Mr Y

49. Mr Y did not receive the SEN provision from his EHC Plan for all the period I considered, from January 2023 to July 2024. This was five terms of SEN support. The Council should provide a remedy to recognise the provision he missed.
50. 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, 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. In Mr Y’s case, I decided the Council should remedy this at £500 for each term of missed SEN provision.
51. I also consider delays by the Council caused Mr Y added distress further to the impact of the missed SEN support, which the Council should also remedy.

Communication with Miss X

52. The Council failed to keep Miss X updated during delays or to properly explain its decisions. This was fault which caused Miss X distress. The Council should provide a remedy for this.

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Agreed action

53. Within one month of our final decision the Council will:
1. consider and fully respond to Miss X’s request for a personal budget to fund Mr Y’s SEN provision otherwise than at a school. In responding to Miss X’s complaint, it said it would do this once it had completed a review of Mr Y’s EHC Plan, and it completed this on 29 April 2024. If the Council decides it will not provide a personal budget, it will immediately make other arrangements for Mr Y to receive the provision from Section F of his Plan, in line with its duty under section 42 of the Children and Families Act;
2. 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 will consider this guidance in making the apology;
3. pay Mr Y a total of £3,000, comprising of:
1. £2,500 to recognise the SEN support he missed; and
2. £500 to recognise the avoidable distress caused.
4. pay Miss X £500 to recognise the avoidable distress caused.
54. Based on the faults identified in this case, I would usually propose recommendations for the Council to improve its services to ensure it:
• meets statutory timescales for EHC Plan reviews;
• properly considers and responds to requests for a Personal Budget;
• meets its duty to ensure SEN provision outlined in a final EHC Plan is in place; and
• communicates properly with families.
55. Ofsted and the Care Quality Commission (CQC) inspected the Council’s special educational needs and disability (SEND) service in 2021 and identified ten areas of significant weakness. This included the quality and timeliness of EHC Plan annual reviews, and poor communication with families. In 2022, the Council published a Written Statement of Action (WSoA) in response, setting out specific actions for improvements to its SEND services. In May 2024, the Department for Education (DfE) decided the Council had made poor progress against the actions in its WSoA. It therefore issued a SEND Improvement Notice, requiring the Council to produce revised improvement plans to address its SEND failings, with actions to be delivered by October 2025. Therefore, I did not make further recommendations for actions the Council should take to address EHC Plan review delays, or poor communication with families. I consider this is being suitably addressed and monitored by DfE.
56. I also made no recommendations to address the Council’s failure to ensure SEN provision outlined in a final EHC Plan is in place. In May 2024, the Council agreed to our recommendations for similar fault identified in another case, reference 23007317, to review its processes and issue reminders to staff. In July 2024, the Council evidenced it had completed these recommendations. Therefore, I do not consider it appropriate to make further recommendations about the same fault now.
57. Within three months of our final decision the Council will issue a reminder to all staff in its SEND service that during an EHC needs assessment or EHC Plan review, the family has the right to request a Personal Budget, and the Council must properly consider and respond to this request. With this staff reminder, it will also share a copy of the Ombudsman’s November 2023 Focus Report, ‘Parent Power: personal budgets in EHC Plans’
58. The Council will provide us with evidence it has complied with the above actions.

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Final decision

59. I have completed my investigation. There was fault by the Council which caused Mr Y to miss SEN support, and caused avoidable distress for Mr Y and Miss X. The Council agreed to our recommendations to remedy this injustice and issue reminders to its staff.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman