Summary: Mrs X complained about how the Council dealt with her daughter, Y’s, education and special educational needs. Mrs X said this distressed her, impacted her financially and Y missed education and plan provision. There was fault in the way the Council delayed issuing the Education, Health and Care Plan and did not ensure Y received education and plan provision. This fault frustrated Mrs X’s right of appeal and Y missed education and provision. The Council has agreed to apologise and make a financial payment.

The complaint

1. Mrs X complained about how the Council dealt with her daughter, Y’s, education and special educational needs. She complained the Council:

1. Delayed completing the Education, Health and Care (EHC) needs assessment;
2. Did not provide education since March 2022 or EHC plan provision;
3. Did not provide appeal rights with the final plan as it sent it to a previous address;
4. Ignored and mishandled personal budget requests; and
5. Communication was poor.

2. Mrs X said this distressed her, impacted her financially and Y missed education and EHC plan provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a Council’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)
5. 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

6. I read Mrs X’s complaint and spoke to her about it on the phone.
7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. 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

Background information

9. 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. 
10. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply). 

11. 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.
12. 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.
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)  
14. 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. 

15. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

16. 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)
17. 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.
18. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
19. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor 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). 
20. 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
21. 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. (Statutory guidance ‘Alternative Provision’ January 2013)
22. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
23. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
24. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

What happened

25. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
26. Y has additional needs. Mrs X electively home educated Y as she found going into school difficult.
27. Mrs X applied for an EHC Plan in March 2022.
28. The Council agreed to complete the needs assessment in April 2022.
29. The Council told Mrs X the needs assessment was taking longer because of a backlog, high demand and a shortage of Educational Psychologists (EP’s).
30. The Council told Mrs X it continued to wait for the assessment in August 2022. Mrs X told the Council she moved and gave her new address.
31. The EP completed the report in September 2022.
32. The Council issued the draft EHC Plan in December 2022.
33. Mrs X received the draft EHC Plan in January 2023. She asked the Council to allow her 15 days to respond from when she received the draft. The Council invited Mrs X to “take your time” to comment on the draft. The Council agreed a personal budget for Mrs X.
34. In February 2023, the Council agreed to provide two hours per week for mentoring and two hours per month for oversight. The Council agreed this was to start. It would look to increase the hours and transition back to school. The Council contracted Z to oversee Y’s educational package.
35. The Council issued the final EHC Plan in March 2023. The plan specified mentoring three times a week, and a bespoke education package. The Council sent this plan to Mrs X’s previous address. Z contacted Mrs X and offered support.
36. Mrs X reported she received the final plan, by email, in April 2023. She noted it was not accurate and needed updating.
37. Mrs X chased the Council for the personal budget in May 2023. She asked the Council for four hours per week tutoring and 15 hours per week mentoring support. Mrs X asked the Council for a review of the EHC Plan.
38. Mrs X chased the Council for an update for her personal budget request in June 2023. She sent the direct payment forms to the Council.
39. Mrs X complained to the Council in June 2023. She complained about the delayed needs assessment, losing her appeal rights to the Tribunal and the Council had not provided education for Y.
40. The Council issued its stage one response at the end of June 2023. The Council apologised it did not give Mrs X a deadline to respond to the draft plan but felt she had enough time to comment. The Council said the cover letter sent with the plan set out the right of appeal. The Council said Mrs X did not send a signed agreement to allow it to start the personal budget payments.
41. Mrs X asked the Council to escalate her complaint to stage two a week later. She said the Council ignored parts of the complaint including she did not receive the final plan with her appeal right, Y had no tutoring or mentoring and no plan provision.
42. The Council responded to the stage two complaint in August 2023. The response confirmed Mrs X did give the Council her new address, and it would send her an updated final plan with appeal rights. The response said Mrs X should send the direct payment agreement to the Council. The Council noted Z and a mentoring company had been working with Y. The Council asked Mrs X to explain what Y was not receiving.
43. The Council held the annual review meeting in September 2023.
44. The Council told Mrs X it would amend the EHC Plan in October 2023.
45. The Council issued the final EHC Plan in December 2023. The cover letter set out Mrs X’s appeal right to the Tribunal.
46. Mrs X continued to chase the Council for mentoring, tutoring and EHC Plan provision.
47. Mrs X complained to the Council again in June 2024. She complained Y had not had any education or plan provision. Mrs X confirmed the Council assigned Z who contacted her but had not met or had any interaction with Y. She also stated the mentoring company was not accessible or enough for Y. Mrs X said the Council took nine months to consider her request for direct payments. She said when the Council agreed to pay this, she did not receive any money.
48. The Council responded in July 2024. The response apologised for the delay in the needs assessment. It said this was because of a lack of EP’s. The Council confirmed it assigned the mentoring support in January 2023 with oversight from Z. The Council accepted it sent the EHC Plan to the wrong address in March 2023 so Mrs X could not appeal the plan. The Council agreed it would pay Mrs X for the missed personal budget payment totalling £780.
49. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to make a financial payment for the education and provision Y missed.
50. In response to my enquiries the Council accepted it did not have evidence it gave Mrs X an appeal right when it resent the final EHC plan. It accepted it did not issue the EHC Plan within timescales, confirmed Mrs X stated Y could not engage with the mentor or tuition it offered.

My findings

EHC Plan

51. It is clear from the documentation, and the Council has admitted, there have been significant delays in this case. The statutory guidance says the needs assessment process “must be carried out in a timely manner”. Councils must complete steps as soon as practicable. If the council decided to issue a plan, it must issue the plan within 20 weeks.
52. Councils must seek EP advice as part of an EHC assessment. Councils should receive this within six weeks of the asking for it. The EP’s advice was due in June 2022. The Council received the advice in September 2022, a delay of four months. The Council is responsible for the commissioning and delivery of the EP advice and information. The delay in receiving the advice was due to a nationwide shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons the EP advice took longer than it should have, the delay was nonetheless fault.
53. Even after considering the four-month delay in receiving the EP advice, it should have issued Y’s final EHC Plan by November 2022. The Council issued Y’s EHC Plan in March 2023. This three-month Council delay is fault.
54. In total, the Council took 12 months to assess Y and issue a final EHC Plan, instead of the 20 weeks required by the Regulations and the Code. This was a total delay of seven months.
55. There was an early delay caused by an EP shortage and a second delay after this before the Council issued a final EHC Plan. This is fault. This frustrated Miss X and frustrated her right of appeal to the Tribunal.
56. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. This caused Mrs X distress and frustrated her appeal right to the Tribunal.
57. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
58. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
59. The Council sent this plan to Mrs X’s previous address. It later sent a copy by email, but it has not evidenced an appeal right to the Tribunal with this copy. It is therefore reasonable Mrs X did not appeal this plan.
60. The Council reviewed the EHC plan in September 2023. The Council issued an amended EHC plan in December 2023. Mrs X disagreed with the plan. If a Council does not agree to the wanted changes, it can still issue a final plan. This gives appeal rights to the Tribunal, who can decide on changes to the plan if necessary. It is reasonable for Mrs X to appeal this EHC Plan.

Missed education and provision

61. The Council stated, and Mrs X confirmed, she was electively home educating Y when she asked for the EHC needs assessment. When the Council issued Y’s EHCP in March 2023, it had a duty to secure the special educational provision in the plan (Section 42 Children and Families Act). This included mentoring and bespoke education.
62. Councils have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”.
63. The Courts have said it is for a council to determine what is ‘suitable education’. The Courts have said the question is whether the education offered is reasonably possible or reasonably practicable for the child to access.
64. The Council has not evidenced any provision. It evidenced it allocated Z, but has not evidenced any mentoring, tuition or provision. Mrs X repeatedly told the Council Y was not receiving anything. The Council’s response to say mentoring or tutoring was available does not evidence provision or the Council satisfied itself this was available and accessible. This is fault and the Council has not evidenced Y received education and provision since March 2023.
65. As set out in paragraph 18, I cannot consider any missed education or plan provision that is appealable to the Tribunal, from the appeal right. I do not consider the March 2023 plan appealable for the reasons set out above. The December 2023 plan was appealable, so I can consider missed education and provision from March 2023 until this plan, two academic terms.

Personal budget

66. The Council said Mrs X did not send signed forms for it to progress personal budget payments. The Council agreed this budget in January 2023. Mrs X has evidenced she sent the forms in June 2023. The Council did not make a decision until January 2024. This delay is fault, frustrating Mrs X.
67. The Council response accepted some issues with communication. The Council agreed in its complaint response to apologise and pay Mrs X the full amount of direct payment back to the application date. This is sufficient remedy for this fault.

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Agreed action

68. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Y for the delays issuing the EHC Plan, not ensuring Y received education and provision and delaying making a personal budget decision. 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.
• Pay Mrs X £100 per month to recognise the uncertainty, avoidable distress and frustration caused by the delay in obtaining advice from an EP. A total of £400.
• Pay Mrs X £300 to recognise the distress, frustration and uncertainty caused by the Council delay in issuing Y’s EHC Plan.
• Pay Mrs X £1,800 for not ensuring Y received education and plan provision for two academic terms. This money should be used for Y’s benefit.
69. The Council should provide us with evidence it has complied with the above actions.

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Decision

70. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman