Summary: There was fault by the Council which failed to secure some of Y’s special educational provision, failed to complete his annual review and delayed reviewing his personal budget. This caused avoidable confusion and a loss of educational provision. The Council will apologise and make payments to reflect the injustice.

The complaint

1. Mr and Mrs X complained the Council:
1. Delayed securing or failed to secure some of the special educational provision in Section F of their child Y’s Education Health and Care Plan: (i) opportunities for daily interaction with a small group of peers and (ii) provision of a teaching assistant (TA) to support Y at forest school
2. Failed to complete the annual review of 2023 in line with relevant law and/or statutory guidance
3. Failed to review the personal budget in line with relevant law or when made aware costs had increased
4. Failed to respond to all the concerns they raised and did not implement action it agreed to take in response to some concerns
2. They said this caused avoidable frustration, distress, time and trouble and caused Y a loss of special educational provision.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
5. The courts have established that if someone has appealed to the SEND Tribunal, 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.)
6. 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)
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)
8. 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

9. The period of my investigation is December 2022 to February 2024. Mr and Mrs X complained to us in March 2024. So complaints about matters between March 2023 and February 2024 are in time and I have investigated them. Complaints about matters between December 2022 are March 2023 are late, but I have investigated them because they are an ongoing chain of events which Mr and Mrs X tried to resolve informally before making a formal complaint. The evidence indicates they did not let matters rest.
10. In complaint (a), I am not investigating the failure to secure OT training for tutors and provision of OT equipment as these matters were appealed and decided by the SEND Tribunal. The Millburn case means there may be a period of past injustice (such as lost provision) which, due to the restrictions on our powers where there are appeal rights, neither the LGSCO or 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).
11. My investigation is about Y’s EHC Plan of December 2022. Mr and Mrs X appealed the content of Sections B and F of this Plan to the SEND Tribunal. I am not investigating any issues which they appealed. And I am not investigating implementation of the provision in the post-Tribunal EHC Plan of February 2024 because this is the subject of a separate complaint with the Council which has not been made to the LGSCO.

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How I considered this complaint

12. I considered the complaint to the Council, its responses and documents from the parties. I discussed the complaint with Ms X and council officers separately. The parties had a chance to comment on a first draft of this statement and I took comments into account.
13. Mr and Mrs X and the Council had an opportunity to comment on two drafts of this decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

14. 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 council can do this.

15. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs (SEN).  
• Section F: The special educational provision (SEP) needed by the child or the young person. 
• Section I: The name and/or type of educational placement. This is blank for Y because he is not educated in a school placement and receives education other than at school (EOTAS)
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

16. 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)  
17. 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. 

18. 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.
19. 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. (Regulation 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
20. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
21. A personal budget (PB) is money to secure the provision in a child or young person’s EHC Plan. Councils can deliver a PB through direct payments. These are cash payments to the parent or the young person so they can arrange the provision in the EHC Plan. Guidance says Section J of an EHC Plan (the PB) must include details of how the PB will support particular outcomes, the provision it will be used for including any flexibility. (SEND Code Paragraph 9.62)
22. The SEN (Personal Budget) Regulations 2014 say a council must:
1. ensure the direct payment amount is enough to secure the agreed provision (Regulation 10(1))
2. review the making and use of direct payments at least once within the first three months of starting and when conducting an annual review. When carrying out a review, the council must consider if the amount continues to be sufficient to secure the agreed provision (Regulation 11(2) and (3))
3. Following a review the council may maintain, increase or decrease the direct payment (Regulation 11(5))
23. Our Principles of Good Administrative Practice are a benchmark for the standards we expect when we investigate the actions of local authorities.
24. Principle two is about being customer focussed. We expect councils to:
• Deal with people helpfully, promptly and sensitively
• Responding flexibly.
25. Principle three is about being open and accountable. We expect councils to keep proper and appropriate records

Summary of documents

Y’s EHC Plan of December 2022

26. The relevant parts of Section F of Y’s EHC Plan said:
• Y will need adults to facilitate daily small group situations (initially one child building up to a maximum of four children) where he can feel relaxed to have verbal interactions with his peers
• Social and play opportunities with one or two children; 10 minutes building up to a maximum of 1.5 hours a day when Y becomes familiar and comfortable to engage with others
• Throughout a school day, Y will need daily one-to-one adult support from a trained teaching assistant (TA) to help him cope with the educational, social and emotional demands of learning
• On a daily planned basis, Y will need one-to-one mentoring from a key adult (TA) throughout a school day.
27. Section J of the Plan has an itemised list of the provision to be funded by the PB.
28. We asked the Council for a breakdown of the personal budget it agreed for Y. It provided the following details:

Provision Dec 2022 to June 2023 From Sept 2023

Tuition 4 hours (up to 10) 10 hours

Mindjam 1 hour 1 hour

Online mentor 20 sessions a year 20 sessions a year

Animal education 2 hours 3 hours

Forest school 1.5 hours 1.5 hours

TA for forest school NIL 2.5 hours

OT 14 hours 14 hours

Tutor training by NIL 4 hours

OT

Resources £480 £480

Email exchanges December 2022 to March 2023

29. In December 2022, Mr and Mrs X sought clarification about Y’s previous school’s coding of his absences, setting up the DP account and contract and other minor issues. School and the Council responded to their concerns. The Council confirmed it had agreed 10 hours of tutoring for Y.
30. In January, Mr and Mrs X asked about inflationary costs and how this affected the PB and whether the Council had checked to make sure the PB covered all provision in Section F and about one-to-one supervision for Y at provision. The Council responded saying the PB could be used flexibly as long as needs were being met, PBs were reviewed annually and inflationary costs would be dealt with at reviews. The Council went on to say the Head of Service had checked the PB and was happy it was enough to secure all provision in Section F.

Email exchanges April and May 2023

31. Mr and Mrs X initiated many emails about peer interaction and how the PB could deliver the wording in Section F of the Plan. In April, the Council told Mr and Mrs X EOTAS wasn’t meant to replicate the school day and so peer interaction wouldn’t be the same as if Y attended a school. The Council said Y had peer interactions through the forest school and at the animal centre and further changes to the PB would be discussed at the annual review. One email at the end of April said that the PB needed to be spent as itemised in Section J.
32. Mr and Mrs X said Section F required daily small group interactions and the current arrangements (one session at forest school and two sessions at the animal centre) were not enough as daily meant five days a week. The Council also said one-to-one TA support referred to support in a school.
33. In May, Mr and Mrs X pursued the issue of one-to-one support for Y and the Council’s response was this could be discussed at the annual review. The Council also said it would consider funding a third session for Y at the animal centre.

Annual review

34. Y’s annual review meeting took place on 31 May. Mr and Mrs X and an officer from the SEND team attended and progress reports from all providers were included. The record of the meeting noted any changes to Sections B and F would be dealt with using the working document process as Mr and Mrs X had appealed the December 2022 Plan to the Tribunal. (Mr and Mrs X told me they did not request any changes). The end of the proforma said there was no request for changes to the PB in Section J. However the ‘analysis of progress’ section of the review form noted Y’s parents had asked for five sessions at the animal centre and the Council had agreed to fund one additional session.

Email exchanges June and July 2023

35. The email records suggest Y was not attending group sessions at forest school during the summer term. Instead, Y was having a temporary break from group sessions; but one of the staff from forest school was delivering one-to-one sessions with Y doing similar activities.
36. In June, forest school emailed the Council with costs for travel and one-to-one support at each session. There was no response from Council officers at the time.
37. Also in June, Mr and Mrs X told the Council there was just enough funding in the PB for the third animal centre session, but not enough for the daily peer interaction set out in Section F. The Council agreed funding for the third animal centre session and asked for evidence of increased costs and evidence of PB spending.
38. Mr and Mrs X sent several emails raising particular points. The records indicate the Council didn’t receive two of them, which he chased.
39. The Council sent Mr and Mrs X the written record of the annual review meeting on 25 July. Mr and Mrs X emailed some comments.

Emails August to October 2023

40. Mr and Mrs X said in August that Y’s tutor and forest school were increasing their hourly rates. Mr and Mrs X said they had been asking for one-to-one TA support for Y at forest school since December 2022, in emails, at the annual review meeting and the forest school itself had also raised this directly with the Council.
41. Mr and Mrs X also said they couldn’t pay an invoice because of the hourly rate increase. Receiving no response, they chased the Council twice. The Council apologised for the delay and agreed the increase in hourly rates.
42. In October 2023, the Council appointed a new Head of SEND and they became the main source of contact with Mr and Mrs X. Mr X and Mrs X sent a list of outstanding issues. The Head of SEND responded saying they had reviewed Y’s PB. They enclosed an annotated breakdown of Y’s PB package setting out funding agreed for each provision in Section F. The Head of SEND said:
• They were sorry for the failure to respond to the forest school’s emails asking for additional funding. The Council wouldn’t fund general equipment available for all children
• Other issues would be dealt with by the Tribunal.
43. The annotated PB breakdown from the Head of SEND referred to in the last paragraph included the Council’s reasons for the increase from September 2023:
• TA for forest school: Section F says Y needs daily one-to-one TA support to help him cope with the educational, social and emotional demands of learning. Section F also says he will need daily one-to-one mentoring. The Council agreed a TA for forest school so Y will have individual support for all his direct learning: 10 hours tutoring a week and a one-to-one for forest school
• It is usual for education providers to ensure their provision has the resources available to deliver the environment required. Therefore, the Council would expect the forest school to offer access to a sensory environment and an appropriate shelter
• In Section F (Communication and Interaction) says Y will need adults to facilitate daily small group situations (initially one child building up to a maximum of 4 children) where he can feel relaxed to have verbal interactions with his peers. As Y is not in school, the Council recognises that access to other children may not be as easy. He does however have opportunities to interact with peers at forest school and the animal centre
44. The Council issued a new PB agreement with the extra agreed funding for Y’s provision from September 2023. Mr and Mrs X signed and returned this in November.

The complaint to the Council and its responses

45. Mr and Mrs X complained to the Council in January 2024 about the matters she has raised with us. The Council’s response from the SEND manager said:
• At the recent annual review, the Council extended Y’s time at the animal education centre to provide additional opportunities for peer interaction
• Y already had opportunities for peer interaction at forest school. The Council was sorry this took some time to establish
• It was sorry the paperwork was sent out late after the annual review meeting. It had reminded the SEND team of the timescales and staff would be going on refresher training
• Following an email exchange in October 2023, issues about the PB were resolved
• To ensure communication was transparent and prompt, the SEND service manager offered to meet them each month to discuss Y’s EOTAS package.
46. Mr and Mrs X were unhappy with the Council’s response and asked the Council to go to stage two of the complaints procedure in February. They didn’t get a response and so complained to us in March. The Council then responded at stage two in April saying:
• It was sorry for the delay in its response
• It was sorry it did not provide the usual standard of service and again offered to meet with them monthly
• A tribunal was underway at the same time as the complaint process. The order established the disputed educational provision, for example equipment.
• It had addressed conduct issues with the relevant member(s) of staff and would not provide further details for confidentiality reasons.
47. Mr and Mrs X told me Y’s sessions at the animal centre were one-to-one, and there were other students attending at the same time as Y. They said between December and April one of them attended forest school with Y as it would not accept him without individual support. In the summer term, Y took a planned break from attending forest school and one of the forest school staff supported him individually to do forest school-type activities.

Was there fault and if so, did this cause injustice?

The Council delayed securing or failed to secure some of the special educational provision in Section F: (i) opportunities for daily interaction with a small group of peers and (ii) provision of a teaching assistant (TA) to support Y at forest school

48. References in Section F to a “school day” were confusing and unclear as there was never any intention for Y to attend school or reintegrate into a school setting when the Plan was drafted. “Opportunities for daily small group peer interaction” means provision should have included peer interaction on a daily basis. Therefore, the failure to secure daily peer interaction for Y when he was only attending provision with other children on three days of the week was fault as it was not in line with the duty in Section 42 of the Children and Families Act 2014. It caused a loss of a small amount of educational provision in Section F. In response to a draft of this statement, the Council pointed out the wording of Section F suggested a gradual building up as and when Y was ready to engage with others. Section F says ‘initially one child’. This means daily interaction starting with one other child and increasing over time to a small group of peers as and when Y is ready.
49. Section F of the Plan also said Y needed one-to-one support to cope with the demands of education. Most of Y’s provision had individual support however, the Council failed to fund one-to-one at forest school. This was not in line with the duty in Section 42 of the Children and Families Act 2014 and was fault. It meant Mr and Mrs X had to accompany Y to sessions from December 2022 to April 2023. And during the summer term of 2023, Y had a planned break from forest school and had one-to-one sessions so was receiving individual support. While there was fault by the Council, there is no loss of educational provision for Y in the lack of one-to-one support at forest school. Any injustice is to Mr and Mrs X for time supporting Y.
50. The Council provided PB funding for a one-to-one TA for forest school from September 2023. This was delayed between December 2022 and July 2023 as I have set out in the last paragraph, but from September, provision was in line with the Section 42 duty.

The Council failed to complete the annual review of 2023 in line with relevant law and/or statutory guidance

51. The Council should have issued a decision to maintain or amend Y’s Plan within four weeks of the review meeting at the end of May 2023 to be in line with the 2014 SEND Regulations. It sent Mr and Mrs X the minutes of the annual review meeting in July. But this did not complete the annual review because of the failure to issue a decision to maintain or amend the Plan and this was fault. However, the injustice is limited because Mr and Mrs X already had an appeal underway and the Council made it clear in the records that any disputes would be dealt with by the appeal process.

The Council failed to review the personal budget in line with relevant law or when made aware costs had increased.

52. The Council should have reviewed Y’s PB within three months of it starting so by March 2023. It failed to do so which was not in line with the 2014 PB regulations and was fault. The Council should also have reviewed the PB while conducting Y’s annual review in May 2023. This caused avoidable confusion and uncertainty and was a missed opportunity to resolve Mr and Mrs X’s concerns about the funding being insufficient to secure each part of Section F.
53. The Head of Service carried out a PB review and agreed an increase in funding from September 2023. Mr and Mrs X received an updated PB agreement reflecting the increase which included more money on account of hourly rates increasing, an additional session at the animal centre and a TA to support Y at forest school. This was late as I have set out above, but it was appropriate and in line with the PB regulations.

The Council failed to respond to all the concerns they raised and did not implement action it agreed to take in response to some concerns

54. The records indicate Mr and Mrs X raised multiple concerns and issues from December 2022. This made it difficult for staff to keep track of each issue.
55. The Council responded to most issues in a timely manner considering the volume of emails and detail Mr and Mrs X expected. Inevitably some emails were missed or not fully responded to, but overall I do not consider the Council to be at fault. Once the Head of Service took over as Mr and Mrs X’s main point of contact, most outstanding key issues were responded to.
56. However, there are two areas where the Council’s communication fell short of expected standards:
• The record of the annual review meeting was not accurate and this was fault. Mr and Mrs X were clearly asking for changes to Section J and so it was incorrect for the Council to record they were not. This was not open or accountable and was fault causing avoidable frustration.
• The Council said in January 2023 that the PB could be used flexibly, but then contradicted itself in April 2023 by saying it could only be used as itemised in Section J. This was not in line with our Principles or with paragraph 9.62 of the SEND Code which says Section J should clearly set out any agreed flexibility. It was fault causing avoidable confusion and uncertainty and led to further email exchanges which might otherwise have been avoided.
57. As an outcome to Mr and Mrs X’s complaint, the Council apologised and offered a monthly meeting with the Head of Service to address any queries and concerns. This is appropriate for the parties at present, is flexible and hopefully minimises further protracted email exchanges that risk becoming a disproportionate use of staff resources.

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Agreed action

58. To reflect the injustice described in the previous section, within one month of my final statement, the Council will make:
1. A payment £900 to reflect a loss of opportunities for Y to interact with a peer
2. A payment of £250 to recognise parental time supporting Y at forest school and for the avoidable confusion caused by the failure to complete the annual review, for poor communication about the PB and for the error in record keeping.
3. A further apology. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. There was fault by the Council which failed to secure some of Y’s special educational provision, failed to complete his annual review, made errors in record keeping and delayed reviewing his personal budget. This caused avoidable confusion and a loss of educational provision. The Council will apologise and make payments to reflect the injustice.
61. I completed the investigation.

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Investigator's decision on behalf of the Ombudsman