Summary: Ms X complained the Council failed to secure the special educational provision in her daughter, W’s, Education, Health and Care (EHC) Plan after W struggled to attend school. The Council was at fault, but we cannot say it meant W missed out provision she should have had. The Council was at fault for delay in reviewing and amending W’s EHC Plan. That fault caused Ms X avoidable frustration, meant W missed out on some special educational provision and delayed W receiving free school transport. To remedy their injustice, the Council will apologise to Ms X, pay her £450 and issue a reminder to staff.

The complaint

1. Ms X complained the Council failed to secure the special educational provision in her daughter, W’s, Education, Health and Care (EHC) Plan after W struggled to attend school from January 2024. Ms X also complained the Council delayed completing W’s EHC Plan annual review in advance of her move to another post-16 setting and about poor communication.
2. Ms X said this impacted W’s wellbeing, education and social learning and affected the wider family emotionally and financially.

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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. 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)
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. 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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How I considered this complaint

7. I have considered:
• all the information Ms X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
8. Ms 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

Relevant law and guidance

Education, Health and Care Plans

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 which include:

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

Personal budgets

10. 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.

Special educational provision

11. The council has a duty to “secure” 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)  
12. 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. 

EHC Plan annual reviews

13. 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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
14. 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). The council must then consider the response to its proposed amendments and issue a final amended EHC Plan.
15. For young people moving between post-16 institutions, the council must review and amend, where necessary, the young person’s EHC Plan. This must happen at least five months before the transfer takes place; by 31 March.

School transport

16. Councils must issue a statement setting out how they will decide applications for free school transport for 16 to 19 year olds. The Council’s statement says it will consider arranging free school transport for young people with exceptional needs. It says the Council expects to see evidence of a person’s difficulties with transport, including an EHC Plan if available.

The Council’s complaints procedure

17. The Council operates a one stage complaints procedure. Its policy says it will respond to a complaint within 20 working days.

What happened

18. W attended a college (school A) with an EHC Plan dating from 2022 in place. W has social, emotional and mental health needs. The Plan included that W would receive weekly life skill lessons with a mentor and weekly counselling sessions.
19. After a period where W’s health and ability to cope with school worsened, school A decided that to help W engage with school, she should only continue with one course, instead of two. It also offered to arrange a daily mentoring session until the exam period due in summer 2024. In late January 2024, Ms X told the Council W was struggling to attend school A.
20. At the end of the month, W’s doctor signed her off school for around seven weeks. Ms X told the Council W was not attending and said she wanted to discuss alternative education for W. She complained to the Council a few days later. Ms X’s complaint included that the Council’s communication with her about W’s education had been poor.
21. In mid-February 2024, the Council asked W’s school to provide an update on her progress and arrange an emergency annual review.
22. Around the same time, Ms X decided to start paying a private tutor to teach W online, at home.
23. W’s school arranged for W to reintegrate back into school in late March with a part-time timetable. It decided to wait until W had tried to reintegrate before considering arranging tuition, so W could focus on attending the school setting.
24. Records indicate the timetable and other support available from school A did not help W return and after the school tried adjusting the provision without success, it arranged two sessions of online tuition per week, for W to attend while in school. As a result, Ms X stopped the private tuition.
25. However, Ms X says W was unable to access the tuition school A had arranged and after observing the sessions for a month, the school agreed.
26. In April, the Council issued an amended EHC Plan for W. The Plan included:
• Use of strategies, weekly small group sessions and daily sessions with a key member of staff to help W develop her communication and interaction skills;
• Speech and Language Therapy for six hours per year;
• A key member of staff to check in with W daily and to work with her and Ms X to monitor her learning outcomes and meet her social, emotional and mental health needs;
• Access to a weekly social skills group to help W engage with her identity and make friendships;
• Weekly life skill lessons with a mentor;
• Weekly counselling sessions; and
• 19 hours of Occupational Therapy per year to help with W’s sensory needs and help her increase her independence.
• From early May, school A began paying W’s previous private tutor to work with her at home. The private tutor continued for three weeks until school ended for the exam period.
27. W’s school held an annual review meeting in mid-May 2024. The school sent the Council the minutes of the meeting in mid-June. The Council asked Miss X to name her preferred setting for W from September onwards. She asked it to consult with a vocational college, school B.
28. The Council made a mistake and consulted with a different school before Ms X identified its error in early July. The Council consulted with school B and, in late July, received a response that school B could offer W a school place.
29. In mid-August, the Council told Ms X it would amend W’s EHC Plan.
30. Ms X says that without an updated EHC Plan, W’s transition into school B was difficult. She did not have a key member of staff to build a relationship with, and W’s teacher did not understand her needs.
31. The Council issued W’s draft amended EHC Plan in early October.
32. A few days later, the Council sent its response to Ms X’s complaint. Its response included that it was sorry for the delay responding to her contact about W’s education.
33. The Council issued W’s amended EHC Plan in mid-November 2024. The Plan included much of the provision in W’s April 2024 EHC Plan. There were, however, significant changes to the section on how to help W communicate and interact with other people. This included provision of a trusted member of staff to check in with W daily to help her manage her emotional wellbeing, provide flexible support in the classroom and develop her independence skills.

Personal budget

34. The Council agreed to give W a personal budget for the mentoring and counselling in her 2022, April 2024 and November 2024 EHC Plans. It paid Ms X direct payments so she could commission the provision herself.
35. The Council sent Ms X direct payments for the spring and summer 2024 terms shortly after term began. The Council did not make the autumn 2024 term payment until November 2024.
36. Between September and November 2024, Ms X funded W’s mentoring, but she was unable to pay for W’s counselling as well. Once the Council made the November 2024 payment, Ms X was able to reimburse herself for the cost of the mentoring she paid for.

School transport

37. At the end of August 2024, Ms X told the Council she had been unable to arrange for W to have transport to her new school because it had not yet issued an amended EHC Plan naming the school.
38. When term started, Ms X began taking W to and from school. Ms X paid the transport costs.
39. In its early October complaint response, the Council said Ms X should apply for free school transport now so that the application was ready for when it finalised W’s EHC Plan. Ms X applied for free school transport a few days later.
40. The Council made its decision in mid-October. It awarded W a budget to use to pay for transport to and from school B. Ms X accepted that offer in mid-November and the Council made the first payment in mid-December. The payment was backdated to the day Ms X accepted the travel offer, taking into account which days W attended school B.

Recent Ombudsman decisions

41. We have issued several decisions against the Council in the past year. In those cases, the Council agreed to:
• Share one of our decision statements with staff to highlight the importance of meeting statutory deadlines around EHC Plans; and
• Remind staff to respond to parents in a timely way.

Findings

Special educational provision

42. The Council owes W the duty to secure the special educational provision in her EHC Plan. Initially, the Council met this duty by arranging for W to attend school A. However, in January 2024, W’s attendance reduced because of her health. When the Council became aware of W’s poor attendance, it acted appropriately by contacting school A for an update and to ask it to arrange an annual review of W’s EHC Plan. This would have allowed the Council to consider if the provision in W’s Plan remained appropriate for her needs or if it needed amending to help W return and remain in school.
43. However, school A did not arrange W’s annual review meeting until May 2024, almost four months later. There is no evidence the Council considered whether, in the meantime, W was receiving as much of the special educational provision in her EHC Plan as possible, given she was unable to attend school in the usual way. This was fault and caused Ms X avoidable upset and frustration.
44. I cannot say, even on balance, that had the Council acted without fault, it would have arranged additional provision to secure the full special educational provision in her EHC Plan. It was Ms X choice to arrange for W to receive tuition from a private tutor. W was signed off school for seven weeks from late January 2024, and the Council may have concluded it was best for W’s wellbeing to give her that time completely off education.
45. W returned to school A in March 2024. She was still working towards completing just one course, had the offer of mentoring in place and school A also introduced a part-time timetable and other strategies to help her reintegrate back into a school setting. School A did not want to arrange tuition immediately on W’s return, to see if she was able to reintegrate back into a classroom setting. When that was not possible, it arranged for W to have tuition while on school property and ultimately, it funded the tutor Ms X had previously used. These were steps open for school A to take to help W return to school successfully. It is probable the Council would have decided school A was acting appropriately to reintegrate W, thereby securing the special educational provision in her EHC Plan.

Annual review and free school transport

46. The Council was required by law to have reviewed and amended W’s EHC Plan at least five months before her move to school B in September 2024, by 31 March 2024. The Council did not start the annual review process until May, when school A held the annual review meeting. It did not issue W’s final amended EHC Plan until mid-November 2024. This means the Council delayed reviewing and amending W’s EHC Plan by seven months. The delay was significant and was fault.
47. While parts of W’s November 2024 EHC Plan were the same as the April 2024 Plan, it also had significant changes to the provision on supporting W to develop her communication and interaction skills. Staff at school B did not have this information between September and November 2024, because of the Council’s delay, which meant W missed out on that special educational provision.
48. The Council’s delay in reviewing and amending W’s EHC Plan also meant Ms X could not apply for free school transport before term started, which in turn meant she did not receive the first travel budget payment until mid-December 2024. That payment was backdated to mid-November, when Ms X accepted the travel offer. However, I am satisfied the Council would likely have come to the same decision on W’s eligibility for free school transport had it considered it before term started. I have therefore recommended the Council reimburse Ms X the value of the travel budget per day W attended between the first day of term and mid-November.
49. The Council recently agreed to carry out actions to improve how it carries out annual reviews, following an Ombudsman investigation. I have therefore not made a further recommendation on that point.

Personal budget

50. The Council sent the direct payments for W’s spring and summer 2024 terms slightly too late and it sent the payment for the autumn term in November. This was two months late. The delay sending Ms X the direct payments was fault. It meant that between September and November 2024, she had to pay upfront for the mentoring sessions.
51. Although Ms X was able to reimburse those costs once the Council paid her the direct payments, the delay nonetheless caused her frustration. The fault also meant W did not receive the counselling provision she was entitled to between September and November 2024.

Communication and complaints handling

52. The Council accepts its communication with Ms X was poor and the evidence I have seen supports that view. The communication issues amount to fault. As the Council recently agreed to remind its staff about making sure they respond to parents, I have not made a further recommendation.
53. The Council was also at fault for taking too long to respond to Ms X’s complaint. It should have sent its response by early March but instead sent it in early October. This was a delay of seven months and was fault. The faults set out in this section caused Ms X further avoidable frustration.

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Action

54. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Ms X and pay her £200 for the upset and frustration she experienced because of the faults set out in this decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Ms X £250 to recognise the impact of the lost provision between September and November 2024 on W. I recommend this amount taking into account the Ombudsman’s guidance on remedies, W’s age and stage of education, the provision she did receive and the amount of provision she missed out on.
3. Pay Ms X the value of the travel budget per day W attended school B between the first day of the autumn 2024 school term and the date Ms X accepted the Council’s travel budget offer in mid-November.
4. Remind staff that when a child or young person is out of education and the annual review of their EHC Plan is delayed, they must consider if the Council needs to arrange the special educational provision in the child or young person’s EHC Plan in the meantime, and keep suitable records of that decision-making.
55. The Council will provide us with evidence it has complied with the above actions.

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Decision

56. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent it happening again.

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Investigator's decision on behalf of the Ombudsman