Summary: Miss X complained the Council failed to properly provide for her child, Y’s, special educational needs. The Council failed to arrange all the support it said Y should receive, failed to properly oversee their education and communicated with Miss X poorly. This led to Y missing out on significant education and caused both Miss X and Y avoidable distress. The Council agreed to apologise, ensure Y is receiving all the support in their Education Health and Care plan and pay Miss X a financial remedy. It also agreed to review how it oversees none-school-based education packages and issue reminders to its staff.

The complaint

1. Miss X complains the Council failed to provide suitable education for her child, Y, in line with their Education Health and Care plan since 2022. She says the Council:
• delayed arranging a new provider when Y’s placement broke down in late 2022;
• did not arrange all the support set out in Y’s plan, including specialist tuition, physiotherapy and occupational therapy;
• failed to pay or delayed paying Y’s new education provider for some of their provision several times in 2024;
• failed to review Y’s education between 2022 and 2024;
• mishandled her request for a personal budget / direct payments;
• communicated with her poorly; and
• mishandled her complaint.
2. As a result, Miss X says Y went without some or all of their education at different times, Miss X had to pay for some of the provision herself and both she and Y have been caused significant, avoidable distress and inconvenience.
3. She wants the Council to arrange all the support Y should receive, apologise and properly recognise the education and support Y missed. She also wants the Council to assign someone to oversee Y’s special education.

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The Ombudsman’s role and powers

4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
9. 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.
10. 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)

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What I have and have not investigated

11. I have not investigated anything related to the suitability of any school the Council named in Y’s Education Health and Care Plan. Miss X had rights to appeal those decisions to the Tribunal, and I consider it would have been reasonable for her to have used those rights.
12. I have investigated how the Council responded to the breakdown of Y’s school placement, how it oversaw Y’s education and its communications with Miss X.

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How I considered this complaint

13. I considered evidence provided by Miss X and Council, as well as relevant law, policy and guidance.
14. Miss X and Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
15. 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 found

Education Health and Care (EHC) Plans

16. 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.
17. 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)
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 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)
19. There is a right of appeal to the Tribunal against various council decisions about EHC Plans, including:
• the 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; and

• any amendment to these elements of an EHC Plan.

Personal budgets for EHC plans

20. A Personal Budget is the amount of money a 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.
21. 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.
22. 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.

What happened

23. Miss X’s child, Y, has special educational needs and has an Education Health and Care (EHC) Plan from the Council.
24. In early 2022, following a review of Y’s EHC Plan, the Council issued an amended final EHC Plan which said Y would receive a package of education at home, based on online learning. The Council arranged for Y to attend an online school, School A. The EHC Plan also said Y should have other support including a programme of exercise recommended by a physiotherapist and training in touch-typing.
25. The Council issued a further amended EHC Plan for Y in September 2022. That plan included some extra support, including “specialist maths and science support” and help with social skills.
26. In October 2022, Miss X says she had a conversation with the Council about her concerns that Y was not getting all the support they needed at School A. However, shortly after this the officer Miss X had been dealing with became unavailable. Miss X chased the Council over several months until it responded to her in early January 2023. The Council contacted School A for some more information about the support it was providing for Y, but it did not receive this for several months.
27. In the meantime, over the first few months of 2023, Miss X says Y began struggling to attend lessons with School A. By March 2023, Miss X says Y was no longer able to attend School A. The Council says it became aware of this in March 2023.
28. Miss X found a different online school (School B) which she thought would be suitable for Y. She asked the Council for a personal budget which would allow her to pay for Y to attend School B.
29. However, Miss X says the Council’s response to her request was confused and contradictory. She says the Council first agreed to a personal budget, then acted as if she had not asked for a personal budget, and this cycle repeated several times.
30. In June 2023, Miss X arranged for Y to start at School B and she began to pay the fees for this herself. Around a month later the Council agreed for Y to attend School B and that it would pay School B directly. However, Miss X says the Council did not arrange for all the support in Y’s plan, including the specialist maths and science tutoring, the touch-typing or exercise programme.
31. Miss X complained to the Council in mid-2023 about the delays and other issues. The Council responded to her complaint and Miss X believed that the Council would resolve issues.
32. However, the Council did not arrange the other missing support and there were further delays and confusion about social skills support for Y, including occasions where the Council was late in agreeing with School B for this to continue.
33. Miss X complained again further to the Council in early 2024. She asked the Council to escalate her complaint to Stage 2 of its complaints process. However, the Council treated this as a new complaint, and sent Miss X a further stage 1 response in late March 2024. In that response the Council accepted:
• Y had received less support from the Council than he should have done;
• it had communication with Miss X poorly;
• there had been difficulties setting up and processing payments for Y’s education (both to School B and Y’s mentor);
• there had been delays with responding to Miss X’s request for personal budget; and
• it had not arranged all the support in Y’s EHC plan.
34. Miss X says there were then further delays with payments for Y’s education and the Council did not follow all the actions it had agreed in its complaint response. Miss X says she had to chase the Council for further responses to try to get it to reconsider her complaint.

My findings

35. Miss X complained to the Ombudsman in October 2024, so her complaint about events before October 2023 is late. The evidence shows the Council mis-handled Miss X’s complaint (in particular, by repeating stage one) and that Miss X continued to try to pursue her complaint with the Council between April and October 2024. Therefore, I am satisfied there are good reasons to consider events from when Y’s placement at School A broke down and when Miss X told the Council about this.

Breakdown of Y’s education placement in 2023

36. The Council does not have any records of a conversation with Miss X in October 2022. However, I am satisfied, on the balance of probabilities, that Miss X told the Council, by telephone, about concerns she had with School A in October 2022. I am not satisfied Miss X told the Council, at that time, that Y was no longer able to attend School A. There is no evidence, in her emails chasing the Council for a response in late 2022, that she was telling the Council Y’s placement was breaking down.
37. There were then significant delays and poor communication from the Council as Miss X was trying get a response, and further delays when the Council was trying to get information from School A in early 2023.
38. The Council says it knew that Y was no longer attending School A in March 2023. On the balance of probabilities, I accept that is the date the Council became aware. However, it is likely the Council would have known about this sooner if it had been more responsive to Miss X’s emails and other contact.
39. There is no evidence the Council took a pro-active response after it became aware Y was no longer attending School A. The Council did not decide whether it needed to review Y’s EHC Plan, based on the placement breaking down, or that it took any steps to arrange an alternative placement. The evidence shows it was Miss X that found a different online school for Y and made the arrangements for Y to attend.
40. Had the Council communicated better with Miss X in late 2022 and acted when it knew Y’s placement was either at risk of breaking down in early 2023, or had broken down in March 2023 it is likely Y’s transition to a different school would have been better planned and managed, and that he would have started there sooner.
41. Instead, due to the Council’s failures to respond promptly to Miss X’s concerns and the breakdown of Y’s placement at School A, I am satisfied that:
• Y received a very disrupted education between January and March 2023;
• Y received no suitable education between March and June 2023;
• Miss X was contacted from the Council’s education team about Y being missing from education (which she found very distressing); and
• Miss X experienced significant frustration, inconvenience and worry due to the lack of response from the Council and having to arrange Y’s education herself.
42. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss.
43. Taking into account the special educational needs set out in Y’s EHC Plan and the stage of Y’s education, I am satisfied that:
• an amount of £1,800 per term is suitable for the period Y did not receive any suitable education; and
• £900 a term is suitable for the period Y was only able to take part in education part-time in early 2023.

Securing the provision in Y’s EHC Plan

44. In its complaint response, the Council accepted it had not arranged all the support in Y’s EHC Plan. It said this was because the support was written based on an assumption Y would be attending a physical school.
45. Council have a duty to arrange all the support set out in a child or young person’s EHC Plan. If the education placement is different from what the Council originally expected, it should still arrange as much of the support as possible.
46. I am satisfied the evidence shows the Council failed to arrange:
• the exercise programme involving input from a physiotherapist;
• touch-typing support; and
• specialist maths and science support.
47. I am also satisfied the Council was responsible for delays in arranging or agreeing the extra social skills support agreed with School B and for delays in paying Y’s mentor (though Y still received this support).
48. Overall, I am satisfied the evidence shows the Council failed to properly arrange and oversee the package of home education it agreed for Y. There is no evidence the Council tried to arrange as much of the support as possible, checked this was in place or properly responded to Miss X’s concerns that it was not.
49. That failure led to Y missing out on some of the extra support he needed, as set out in his EHC Plan, for all the time he was at School B. This was on top of the periods when the main part of Y’s education was disrupted. It also caused Miss X further avoidable frustration and distress.
50. Where fault has led to other support being missed, in addition to education provision, we may recommended additional remedies. Taking into account the support Y did not receive was only part of his overall package of education, and that in most subjects Y made good progress, I consider a further remedy of £400 a term would be suitable to recognise the extra support Y missed out on during his time at School B.

Annual reviews

51. The Council should have received Y’s EHC Plan at least every 12 months. However, it failed to review Y’s EHC Plan between mid-2022 and May 2024. I accepted this in its response to Miss X’s complaint.
52. I cannot say what would have happened if the Council had reviewed Y’s EHC Plan when it should have done. However, this would have provided Miss X with another opportunity to raise any concerns about Y’s education. I am satisfied this failure caused Miss X some frustration and remaining uncertainty about what might have been different.

Personal budget

53. I am satisfied the Council failed to properly respond to Miss X’s request for a personal budget in early 2023. The Council has accepted that, at the time, it did not have a personal budget policy for EHC Plans. On the balance of probabilities, I am satisfied the Council’s communication with Miss X about a personal budget was poor and confusing.
54. Ultimately, Miss X decided she did not want a personal budget, due to the Council’s handling of her request. However, I am satisfied the Council’s handling of her request caused Miss X further avoidable frustration.

Communication with Miss X

55. Overall, I am satisfied the Council’s communication with Miss X about Y’s special educational needs was poor. The Council accepted this, to some extent, in its response to Miss X’s complaint.
56. The evidence shows there were significant periods when the Council did not respond to or communicate with Miss X. The Council also failed to follow-up issues with Miss X on several occasions.
57. This poor communication caused Miss X significant avoidable frustration and worry over a significant period of time.

Complaint handling

58. The Council also handled Miss X’s complaint poorly.
59. Miss X was clear that she wanted the Council to respond to her complaint at stage two in early 2024. Despite this, the Council sent Miss X a further stage one response. On the balance of probabilities, I am satisfied the Council then failed to properly respond to Miss X’s requests for a further response.
60. The poor handling of Miss X’s complaint caused her avoidable distress, time and trouble.

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Action

61. Within one month of my final decision the Council will:
• apologise further to Miss X and Y for the impact of the fault I have set out above;
• review whether the Council has arranged all the support set out in Y’s current education health and care plan, ensuring all the support is in place;
• ensure Miss X knows who at the Council is responsible for overseeing Y’s education and how/when this will be reviewed;
• pay Miss X £2,700 to recognise the education Y missed out on (including only receiving a part-time education) for around two terms at the start of 2023;
• pay Miss X £1,600 to recognise the extra support Y missed out on between June 2023 and October 2024 (these two payments are intended for Y’s future educational benefit;
• pay Miss X, for the benefit of Y, £250 to recognise the further distress and uncertainty caused by the delays in arranging a different education placement;
• pay Miss X £750 to recognise the distress, frustration and uncertainty she experienced due to the Council’s failures and poor communication;
• pay Miss X £250 to recognise the time and trouble caused by the Council’s mishandling of her complaint.
62. Within three months of my final decision the Council will:
• review how it arranges and oversees packages of none-school-based education. The Council should ensure it has adequate processes in place to check that packages are in place and that these are reviewed at suitable intervals;
• review how it manages absences of special educational needs staff to ensure workloads/cases are managed effectively when assigned staff are not available; and
• remind relevant staff about how they should follow the Council’s complaints procedure, including any requests for escalation, and how to ensure complaints are recorded properly.
63. The Council should provide us with evidence it has complied with the above actions.
64. 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.
65. I would normally also have made recommendations to improve how the Council ensures annual reviews take place regularly and how the Council manages personal budgets. However, we recently made recommendations about managing the annual review process and, since the events I have investigated, the Council now has a personal budgets policy/process. For those reasons, I do not consider I need to make further service improvement recommendations at this time.

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Decision

66. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman