Summary: The Council provided no education for Mrs X's son for over a year after he moved into its area. It then provided some tuition but failed to increase this as agreed. The Council also delayed in carrying out a review of the child’s education, health and care plan and failed to deliver the provision in the plan. It also failed to properly communicate with Mrs X. In recognition of the injustice caused, the Council has agreed to make a payment to Mrs X.

The complaint

1. Mrs X complains that the Council:
• failed to provide any education for her son between April 2022 and June 2023 and provided only limited education from then onwards;
• delayed in carrying out a review of her son's EHC plan;
• failed to deliver the provision in the plan;
• failed to properly communicate with her and failed to provide her with the point of contact; and
• failed to make direct payments as set out in her son's EHC plan.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)

Back to top

What I have and have not investigated

4. I have investigated Mrs X’s complaints about what happened between April 2022 and March 2024 when she complained to the Ombudsman.

Back to top

How I considered this complaint

5. I have considered all the information provided by Mrs X, and enquiries of the Council and considered its comments and the documents it provided.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative background

Education, Health and Care Plan

7. 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. 
8. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person. 
• Section G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.

9. 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)  

Reviewing EHC Plans

10. 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.
11. 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) 
12. 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.
13. 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.
14. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Transferring EHC Plans

15. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  

Direct payments

16. 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.
17. 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.
18. 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.

Key facts

19. Mrs X’s son, C, has a diagnosis of autism and has special educational needs. He started school in September 2020 and has had an EHC plan since January 2021. C experienced a lot of school refusal and, in November 2021 the council in whose area the family was living agreed to education other than at school (EOTAS).
20. C’s EHC plan was reviewed in March 2022. It stated that C would be EOTAS and included a personal budget for subscriptions for education apps and home education groups. However, Mrs X never received the personal budget because the family moved out of the area shortly afterwards.
21. On 26 April 2022 the family moved into the Council’s area. C was recorded as electively home educated (EHE).
22. In May Mrs X asked the Council whether the personal budget in C’s EHC plan could be transferred from the previous council. She also explained that section F of C’s EHC plan included oversight from a speech and language therapist and asked whether the Council could refer him to a therapist.
23. On 4 July an EHE adviser contacted the family. She requested a moved-in review to be carried out immediately because C did not meet the threshold for EOTAS and this should only be a temporary position following the family’s move. At the visit Mrs X again asked whether the direct payment could be transferred to the Council.
24. On 12 December officers met with Mrs X. She requested assessments by an educational psychologist (EP) and a speech and language therapist. She also requested a direct payment. She said she wanted the EOTAS package to continue because of C’s previous experience of school. He was currently attending a martial arts group, a home education group run by a cooperative of parents, PE sessions and an agility class. The Council agreed to refer C to a speech and language therapist.
25. On 3 April 2023 the case officer submitted a funding request to the placement resource panel (PRP) for martial arts, agility classes, swimming, and subscriptions.
26. The PRP accepted the Council was legally obliged to continue with C’s existing EOTAS package until a moved-in review was carried out and the package could be amended. It noted this review was significantly overdue but was planned to take place shortly. It decided the funding request should be brought back to panel immediately after the moved-in review when the plan had been discussed and agreed.
27. On 3 May the EOTAS panel considered the case. It found that temporary EOTAS had been agreed because the previous council did not consult with schools as the family were moving out of the area.
28. The PRP re-considered the funding request. It did not agree to reimburse Mrs X’s costs because they were for social provision and subscriptions rather than education. The panel asked the caseworker to review the request to ascertain which elements, if any, met aspects C’s EHC plan and then submit a more rationalised request to the panel. It agreed the casework team should consult with appropriate schools following the annual review. The panel noted that there was no paperwork for the April annual review on file and no draft plan had been issued.
29. On 14 June C began receiving two hours tuition per week provided by the Council’s medical education service.
30. On 13 September the EOTAS panel agreed the tuition should be increased to five hours per week. However, this increase did not happen.
31. On 6 October the casework team received the EP’s assessment report.
32. On 11 October the EOTAS panel asked the casework team to complete an annual review and re-draft C’s EHC plan so consultations could be sent out to appropriate education providers. However, the casework team rejected the EP report and requested further information.
33. On 2 November the EP report was refined and finalised.
34. On 24 January 2024 the EOTAS panel asked the casework team to start the annual review process as this still had not been undertaken because of changes in staff and staff absence.
35. The same day Mrs X sent an email to C’s caseworker asking for an update and said she had received no communication since April 2023.
36. On 6 February Mrs X made a complaint about lack of communication and progress. She said the EP’s report had not been shared with her. She also said she had not been told that C’s caseworker had left their role or the name of the new caseworker. She said she had been sending emails to the previous caseworker for updates with no response. She had been given the name of the new caseworker two weeks previously and had emailed him for an update but had received no response. Mrs X said the two hours tuition C was receiving was not enough and, although a personal budget was included in C’s EHC plan, she had never received payment.
37. A senior officer responded with an update. She accepted C’s EHC plan should have transferred within six weeks and explained this did not happen because of staff absences and vacancies within the SEND team. She said the plan needed updating before schools could be consulted so the team requested an EP assessment but there was a delay in completing this because of a shortage of EPs. The officer accepted that, when the EP’s report was received, an annual review should have taken place and the Council should have decided whether to cease, amend or maintain the existing plan. This did not happen because of staff absences and members of the team leaving. The officer also accepted that the Council had not provided the direct payment specified on the original plan. She explained that the Council could not offer some of that provision as it did not have HE groups but it would make a one-off payment for the other items totalling £415.08. The officer also apologised for lack of communication.
38. On 21 February 2024 the EOTAS panel agreed to fund two days at an alternative provision in addition to the tuition already in place. It also agreed to fund the direct payment for subscriptions.
39. On 22 February the Council sent a formal response to Mrs X’s complaint. It upheld Mrs X’s complaint about lack of communication from the SEN team and apologised for the service she had received since moving into the Council’s area. It also accepted C’s EHC plan should have been reviewed by 8 March 2023. She also upheld Mrs X’s complaint that the direct payment for special educational provision in C’s plan had not been paid. The Council also upheld Mrs X’s complaint that C was left without any educational provision for 14 months and a further eight months with an inadequate education.
40. On 8 March 2024 Mrs X complained to the Ombudsman.
41. On 15 March 2024 an annual review was held.

Analysis

Failure to provide education

42. C moved into the Council’s area in April 2022. The Council had a duty to arrange suitable education for him, but provided no education at all until June 2023. This was fault.
43. From 14 June 2023 the Council provided two hours’ tuition per week. It says the offer of two hours’ tuition was guided by advice received from the previous council. Although this is very limited provision, I find no grounds to criticise the Council for trialling two hours per week at the outset as C had been out of education for some time.
44. In September 2023 the EOTAS panel agreed to increase the tuition to five hours per week. However, this did not happen.
45. The Council has provided different reasons for failing to increase the provision. It said it considered increasing the tuition to five hours per week in September 2023 but input from C’s tutors was that he struggled to engage consistently and meaningfully with two one-hour sessions so there was little evidence to suggest increasing the number of hours would be effective. However, the Council has provided no evidence in support of this assertion.
46. The Council has also stated that the delay in increasing the hours did not happen because of staff absences. It is not clear which reason is the correct one.
47. Two hours tuition per week is very limited provision. Mrs X was requesting more hours as she believed C could cope with this. I find the Council was at fault in failing to put additional tuition in place as agreed by the EOTAS panel on 13 September 2023.

Delay reviewing C's EHC plan

48. The Council is required by law to notify parents that a plan has been transferred and when it will be reviewed. The first review by the new council must be within either 12 months from the plan being made or last reviewed or three months from the date of the transfer, whichever is the later. Accordingly, C’s plan should have been reviewed by 8 March 2023.
49. The Council did not carry out a review until 15 March 2024, a year later than it should have done. Failure to comply with statutory timescales was fault.
50. The delay meant that, although the Council considered C did not meet the criteria for an EOTAS package, no schools were consulted. C’s EHC plan did not reflect his current needs and so was not suitable to send to schools for consultation. If the Council had completed the review when it should have done, the plan would have been amended sooner and could have been sent to schools to consult on a suitable placement for C. The Council arranged sessions at an alternative provision from April 2024. I find it could have done this much sooner but for the delay in carrying out the review.

Failure to deliver the provision in the plan

51. C’s EHC plan set out the SEN provision he needed. This included a communication plan developed and monitored by a speech and language therapist and a social language program. C received none of this support because of the delay in reviewing his EHC plan.

Communication

52. The Council accepted in its response to Mrs X’s complaint that communication by the casework team had been poor. She was not informed of progress and had had to repeatedly chase for an update. She was also not informed when C’s caseworker changed.
53. The failure to properly communicate with Mrs X was fault and caused her distress and frustration.

Direct payments

54. C’s EHC plan included a direct payment. The Council should have implemented the direct payment within a reasonable time after the plan was transferred.
55. The family moved into the Council’s area in April 2022. The Council says it made the direct payment in September 2024, nearly two and a half years later. This was a significant delay. This was fault and caused Mrs X frustration. She was also put to inconvenience in pursuing the matter.

Injustice

56. The Council’s failings have caused C a significant injustice. He has missed out on a significant amount of education and has also been socially isolated from his peers for a lengthy period. The situation has also caused Mrs X distress and frustration.
57. The Council accepted significant failings in its response to Mrs X’s complaint in February 2024 and apologised. However, it did not offer a remedy. I have therefore made recommendations to remedy the injustice caused below.

Back to top

Agreed action

58. The Council has agreed that, within one month, it will:
• apologise to Mrs X for all the fault identified above;
• pay Mrs X £6,000 in recognition of the loss of education. This payment should be used for C’s educational benefit;
• pay Mrs X £500 for the distress caused by the delays in reviewing C’s EHC plan;
• pay Mrs X £250 in recognition of the frustration caused by the lack of communication.
59. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

60. I uphold Mrs X’s complaint.
61. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman