Summary: Ms X complained the Council delayed reviewing her son Y’s Education, Health and Care (EHC) Plan and that it failed to provide special educational provision and appropriate education for Y. Ms X also complained about how the Council considered her complaint about a child protection decision. The Council was at fault for delay in reviewing Y’s EHC Plan, and delay in providing education and special educational provision for Y. This meant Y missed out on some education and specialist provision for two terms, which also caused Ms X frustration. The Council will apologise and make a payment to remedy the injustice caused.

The complaint

1. Ms X complained the Council failed to review and issue her son Y’s Education, Health and Care (EHC) Plan after an urgent review in October 2023, failed to ensure the provision in his Plan was in place during that time and ignored her repeated requests for a personal budget. Ms X also complained the Council’s actions were insufficient to remedy the distress caused to her and Y after it upheld her appeal about a child protection conference decision.
2. Ms X said that as a result Y missed out on education and specialist provision and both of their mental health was badly affected. Ms X wanted the Council to provide appropriate provision for Y and compensation for the education he missed and the distress they both experienced.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. 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)
7. 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

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant legislation and guidance

Child protection

10. Councils have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. (Children Act 1989, section 47)
11. If the information gathered under section 47 supports concerns and the child may remain at risk of significant harm the social worker will arrange an initial child protection conference (ICPC). The ICPC decides what action is needed to safeguard the child. This may include a recommendation that the child should be supported by a Child Protection Plan, or making the child a ‘child in need’ (CIN) and implementing a safety plan.
12. The Child Protection Conference plays an advisory role. But the final decision, for example whether to place a child on a Child Protection Plan or to discontinue a Plan, is the responsibility of the council. We would generally consider it appropriate for a council to follow the recommendations of the Child Protection Conference unless there was good reason not to.

The Council’s appeal policy

13. The Council’s policy for complaints about child protection conference sets out how someone can complain about the process, outcome or decision of a child protection conference. It says how it will consider a complaint. In certain circumstance where it upholds a complaint it can set aside the conference decision and reconvene a new child protection conference to consider the matter.

Education, Health and Care Plans

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 SEND Tribunal or the council can do this. 
15. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.

Reviews

16. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
17. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Appeal rights

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

• 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; and
• decision not to amend an EHC Plan following a review or reassessment.

Provision

19. 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)  
20. If the council decides it would be inappropriate for the special educational provision in a child or young person’s EHC Plan to be delivered in any school, it can agree to arrange for it to be delivered somewhere else, for example at home. The council must arrange and pay for that provision. This is referred to as education other than at a school (EOTAS).

Personal budget

21. 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.
22. 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.
23. The Council must consider several factors when deciding if it will provide a personal budget via direct payments. 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.

Alternative provision

24. 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.
25. 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
26. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

27. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

28. Y is of secondary school age and lives at home with his mother Ms X. Y has ADHD and needs additional support with communication and interaction and his social, emotional and mental health. Y had an EHC Plan that set out the specialist provision he needed. The provision included individual maths tuition for gaps in his learning, to be taught emotional literacy skills, calming strategies, conflict resolution, social problem-solving skills and online safety and receive ongoing support from teaching staff. The Plan said Y should attend School 1 (the school).
29. The school held an early annual review meeting for Y’s EHC Plan at the end of October 2023. The meeting recorded there were conflicting opinions about whether the EHC Plan remained appropriate for Y, and that Ms X wanted the Plan to be amended. At that time Y’s attendance was at 66%. The school reported it was concerned about Y’s attendance and he had not been able to access the emotional literacy intervention set out in his EHC Plan because of it.
30. A meeting was called with the Council, the school, health services and Ms X to discuss Y’s EHC Plan in November 2023. Ms X said she would not attend the meeting. The meeting discussed the general concerns for Y’s educational and emotional wellbeing. There were no actions agreed from the meeting for the school or the Council.
31. At the beginning of December the Council told Ms X it would amend Y’s EHC Plan. The same month the Council received a referral for early help to support Ms X and Y. Early help is low level support that can be provided for children and families with the aim of preventing their needs escalating, it is voluntary and families do not have to agree to it. The Council received professional reports for Y’s amended EHC Plan by mid-January 2024.
32. At the beginning of January 2024 the school asked the Council to provide section 19 alternative provision for Y as he had stopped attending school. The Council advised the school to implement strategies for emotionally based school avoidance, to contact the children and adolescent mental health service (CAMHS) for advice and to refer Ms X to children and families for support – which it had already done. The records show the school and Council early help services worked with Ms X and Y to try to reintegrate him back to school. After a medical incident at the end of January, Ms X removed her consent and no longer wanted the Council’s support.
33. The Council told the school in February to provide tuition for Y and to refer him to the hospital education service, which is the Council’s alternative provision for children who cannot attend school for health reasons. The school told the Council it was its responsibility to provide section 19 education. The Council responded and told the school it had the duty to provide Y’s education and asked it to provide an update at the end of the month.
34. At the end of March the school arranged for Y to attend an alternative provision (Provision 1) for one day a week and to receive two hours of tuition per week.
35. Ms X complained to the Council in March. She said the Council had not amended Y’s EHC Plan following the early annual review of his Plan in October 2023.
36. The records show that Y received two sessions of tuition at the end of April from the hospital school. By the end of the following week the hospital school said it could no longer offer tuition at home. It offered Y online tuition instead but Ms X said Y would not access online tuition.
37. Ms X contacted the Council in May 2024 and asked if she could have a personal budget to arrange Y’s tuition and alternative provision herself. The Council responded the following month and said the funding of a personal budget would need to be agreed by the school.
38. The Council responded to Ms X’s complaint. It apologised for the delay in the school arranging a tutor. It said it had now issued a draft amended EHC Plan and apologised for the delay which it said was caused by very high workload.
39. Ms X was dissatisfied with the Council’s response and complained again. Ms X’s complaint included the provision in Y’s EHC Plan had not been provided and the school could not meet his needs. She said the tuition put in place had been removed and so Y was not receiving any tuition. Ms X said she had repeatedly asked for a personal budget but had been ignored. Ms X also complained the social worker lied in a report to a child protection conference.
40. In May the school arranged for Y to attend provision 1 for a second day, but Y did not attend the additional day.
41. The Council met with the school and told it to complete a referral to a medical school for Y, as an alternative provision. The school did so and the medical school offered Y a place for three days a week. Ms X declined the offer as Y said he would not attend. At the end of June the medical school removed its offer. The school contacted the Council and explained that it had taken all the actions the Council had suggested but Y was only accessing one day of alternative provision. It said it was the Council’s statutory duty to secure suitable education under section 19 of the Education Act and Y had not accessed education since November 2023. The school said its relationship with Ms X had completely broken down and the Council was absent in providing support to the child or school.
42. The Council responded to Ms X’s complaint in mid-June. It said:
• There had been delays in its management of Y’s EHC Plan which were caused by capacity issues, and apologised.
• It had not considered Ms X complaints about the tutoring or alternative provision as they were a matter for the school.
• It had not considered Ms X complaint about a personal budget due to time constraints and advised her to address a formal request for a personal budget to the SEN case manager.
• It had not considered Ms X complaint that a social worker lied in a report to a conference meeting as it was a matter for the school.
43. Ms X contacted the Council again about the personal budget in July. The Council told Ms X she should speak to Y’s school as it would have to agree to release the funding it received from the Council to Ms X as the personal budget.
44. Ms X complained to us in July about the matters set out in paragraphs one and two.
45. From September onwards the school arranged for Y to receive nine hours a week tuition and two days a week at the alternative provision.
46. In November 2024 the Council issued an amended Final EHC Plan for Y that specified he should receive EOTAS. The EOTAS package was the same as the provision the school arranged in September 2024, with the tuition to increase to 12 hours a week over time. Ms X had a right of appeal against the content of the EHC plan if she disagreed with it.
47. The Council had issued draft amended EHC Plans in February 2024, March 2024 and twice in June 2024 for Ms X’s comments. The Council told me in response to my enquiries the delay in issuing the Plan was caused by it working with Ms X to try and agree the content of the EHC Plan.

Child protection

48. In March 2024, following concerns for Y’s safety and wellbeing the Council held a strategy meeting with other agencies. It decided to hold an initial child protection conference (ICPC) to consider what risk Y was at and what actions it should take to support him.
49. The Council held the ICPC at the end of April. It set out that the conference was about concerns for Y’s safety as Ms X had withdrawn consent for an assessment and support from children’s social care. The conference was attended by a Council social worker, Y’s school, health services, children and adolescent mental health service (CAMHS), the police, and was chaired by a Council independent review officer (IRO). Ms X did not attend the conference but shared her disagreement with the content of the reports to the Chair in emails which were considered during the meeting. All the professionals felt Y was at risk of significant emotional harm and should be supported by a child protection plan.
50. Ms X disagreed with the decision of the ICPC and appealed it to the Council. She said she was not given enough notice or opportunity to review the reports to be able to participate in the conference, that the professional reports were inaccurate and dishonest about her and Y, and that the decision to put Y on a child protection (CP) plan was wrong and not in his best interests.
51. Ms X’s appeal was considered by the Council in June by two people not involved in the original decision. The Council told Ms X that it found she had sufficient notice of the conference and reports and it did not find professionals were dishonest in the information they provided. It said it needed more information and context to understand the level of risk to Y and Ms X withdrawing consent to work with children’s services did not automatically indicate significant harm. It said it did not find the threshold of significant harm had been met so it would set aside the decision of the ICPC and reconvene a new ICPC to reconsider the decision.
52. The Council held a second ICPC in August 2024. It was chaired by the IRO and was attended by Ms X, Y’s advocate, the police, a new social worker, health services and CAMHS. They considered the current information and changes since April. All professionals agreed the threshold had not been met for child protection and some suggested support via a child in need (CIN) plan. The IRO confirmed they would recommend a CIN for a short time until Y’s education was sorted. The CIN plan was voluntary and Ms X could withdraw if she wanted to.

My findings

EHC review

53. The school completed an annual review of Y’s Plan in October 2023 and sent it to the Council. The Council should have issued its decision to amend the EHC Plan within four weeks of the meeting, and issued the amended final Plan within a further eight weeks and by mid-January 2024. The Council issued its decision to amend the Plan within the timescale but did not issue the final amended EHC Plan until November 2024. That was a delay of 10 months and was fault. The Council said the delay was caused by it issuing several drafts to try and incorporate Ms X’s concerns. However, the statutory guidance sets out the process and timescales for gathering and considering parental comments. The Council should have issued a final amended Plan and provided Ms X’s appeal rights in line with the timescales. It could then have continued to amend the Plan. Its failure to act in line with the guidance delayed Ms X’s appeal rights to the SEND Tribunal.

Education and special educational provision

54. The Council was aware from October 2023 that Y was struggling to attend school. In January 2024 Y had stopped attending and the school asked the Council to provide alternative provision and early help. I have seen no evidence the Council considered if the section 42 provision in Y’s Plan was still secured and available to him, which was fault. As Y was not attending school, and no other provision was consistently in place for him other than one day at an alternative provider from March, on the balance of probabilities the Council’s failure to secure the section 42 provision meant that Y did not receive the provision in his EHC Plan as set out in paragraph 28 for two terms between January and July 2024.
55. The Council had decided that alternative provision was necessary in February 2024 as it told the school to make other arrangements for Y’s education. It should have ensured appropriate alternative provision was in place for Y in line with his needs and abilities. The Council repeatedly told the school it had the section 19 duty, which was incorrect as the duty is the Council’s. The Council could ask the school to provide the alternative provision but it retained responsibility and should have maintained oversight and control to ensure the duty was properly fulfilled.
56. The school repeatedly asked the Council for support in arranging the alternative provision. I have seen no evidence of how the Council considered the online tuition or the medical school were appropriate for Y’s needs, or whether it should arrange a different provision when Y would not access the online tuition, attend the medical school or the second day of alternative provision. The Council’s failure to properly consider and manage the alternative provision, and to ensure Y was receiving a suitable and as close to a full-time education as he could was fault and not in line with its section 19 duty. Although the school took action to arrange alternative provision, ultimately between January and July 2024 Y only received a handful of tutoring sessions and one day a week of alternative provision from March, which meant he missed the majority of two terms of education. The evidence shows that when Y was provided with additional hours of alternative provision, he was able to access them.
57. From September onwards the school arranged for Y to receive nine hours of tuition and two days of alternative provision. This was later specified as the EOTAS in Y’s amended final EHC Plan and so it was an appropriate package of alternative provision and Y did not suffer an injustice from September onwards.

Personal budget

58. Ms X states she made many repeated requests for a personal budget, all of which were ignored. The evidence shows when Ms X made requests to the Council it redirected her to the school. That was fault, as it is the Council’s decision on whether to provide a personal budget, not a school’s. The Council should have considered Ms X’s request, informed her of its decision and how she could request a review of its decision if she wanted to. The Council’s failure to do so and its misleading response was fault and caused Ms X avoidable frustration. However, I cannot say what decision the Council would have made had it properly considered Ms X’s request.

Child protection conference

59. The Council considered Ms X’s complaint about the ICPC through the appeals process, which is appropriate. It found the decision was insufficiently evidenced and set the decision aside. When the ICPC was reconvened the circumstances had changed and a different decision was made. The Council’s decision to set aside the initial decision was an appropriate remedy for any injustice caused to Ms X and/or Y. I have therefore not investigated this matter further because it would not result in a different outcome.

Complaint handling

60. The Council did not consider Ms X’s complaint about the tutoring or alternative provision and directed her to the school. That was fault as the section 42 and section 19 responsibilities were the Council’s duties and so it should have considered Ms X’s complaints about them properly.
61. The Council did not consider Ms X’s complaint about the personal budget as the responding officer did not have time. The Council should have properly considered this element of complaint and the failure to do so was fault.
62. The Council said it did not consider the complaint the social worker lied in a report to the ICPC as it was a matter for the school to consider. That was incorrect and was fault as the social worker is a Council officer and it was for the Council to respond to the complaint. However, the veracity of the professional reports was considered by the Council’s ICPC appeal panel which did not consider the reports to be misleading. As the Council had considered that matter and provided a response in writing to Ms X, I do not find that Ms X was caused an injustice by this point.
63. Ms X was caused avoidable frustration and time and trouble by the Council’s failure to properly consider and respond to her complaint, and by the incorrect response it gave.

Our previous recommendations

64. In separate recent investigations by the Ombudsman, we made several service improvement recommendations to the Council to:
• develop action plans to deal with delays in the EHC Plan process;
• deliver training for officers on the Council’s duties when children are not attending school;
• review its systems and practices in relation to personal budgets; and
• to improve its complaint handling.
65. The recommendations were made during or after the period investigated in this case. I have therefore not repeated the same recommendations here. We will continue to monitor the Council’s improvements in these areas through our case work.

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Action

66. Within one month of this decision the Council will:
• Write to Ms X and apologise for the frustration and time and trouble caused to her by the Council’s faults and pay her a symbolic amount of £400 to recognise the same;
• Write to Ms X and apologise to Y for the special educational provision and education he did not receive between January and July 2024 due to the Council’s faults and pay Ms X £4,000 to recognise the same. Ms X should use this for Y’s educational benefit as she sees fit. This amount takes into account Y’s individual circumstances including the stage of his education and the provision he did receive, and is in line with our guidance on remedies.
• Remind officers responding to complaints that they must consider and respond to all points of complaint, even where this is time consuming.
67. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended above.
68. The Council will provide us with evidence it has complied with the above actions.

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Decision

69. I find fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman