Summary: There was no fault by the Council. There was no obligation to consider Ms X’s request for a personal budget because Y’s Education Health and Care Plan was not being reviewed. The Council advised Ms X how to apply for free school meals, which she is now receiving and secured special educational provision by putting in place tuition. This is in line with its legal duty.

The complaint

1. Ms X complained the Council:
1. Did not secure the special educational provision on her child Y’s post Tribunal EHC Plan.
2. Failed to deal with her request for a personal budget (PB) in line with law or guidance
3. Refused to fund free school meals
4. Did not provide a named caseworker meaning they had no contact from the Council about what was happening with Y’s provision after the Tribunal case ended
5. Combined two complaints, delayed in responding and gave inaccurate information in its responses
6. Delayed issuing Y’s post-tribunal Education, Health and Care Plan (EHC Plan)
2. Ms X said this caused avoidable distress and a loss of special educational provision.

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The Ombudsman’s role and powers

3. We make findings based on the balance of probabilities. We look at relevant evidence and decide what was more likely to have happened.
4. We provide a free service and use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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 s34H(1), as amended)
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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What I have and have not investigated

7. The timeframe for this investigation is July 2024 to April 2025. The earlier date is when the Tribunal concluded and the later one is the date of the Council’s stage two complaint response. I have investigated complaints (a) (b) and (c) for this period.
8. I did not investigate:
• Complaint (d) because the Council accepted fault in its stage two complaint response, apologised and offered a payment at the highest end of our guidelines for injustice caused by poor communication. This is an appropriate remedy for the injustice
• Complaint (e) because it is not fault to combine two complaints about linked matters. And the Council has offered an appropriate payment to reflect the injustice caused by poor complaint handling
• Complaint (f) because the Council had two weeks to issue the amended EHC Plan following the order of 10 June and it issued an amended EHC plan on 14 July. A three-week delay did not cause a significant injustice.

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. 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

Law and guidance

11. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the Tribunal in this decision statement. There is a right of appeal to the Tribunal against the description of the child’s SEN, the SEN provision specified, the school or placement specified, or the fact that no school or other placement is specified.
12. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections including Section F (special educational provision) and I (placement/educational setting.)
13. Councils have the power to arrange education and SEN provision to be delivered otherwise than at a school or institution, where it would be inappropriate for a child to attend a school setting. (Children and Families Act 2014 Section 61). We call this provision EOTISC. Section I of the child’s EHC Plan is left blank where EOTISC is in place.
14. 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 2014).
15. A Personal Budget (PB) is a notional amount of money the council has identified it needs to pay to secure the provision in a child’s EHC Plan. A PB may be taken through a direct payment (DP) which is a monetary payment which is used to secure agreed services in the EHC Plan.
16. A parent may request a personal budget and direct payment when:
• A draft EHC Plan is being prepared or
• The EHC Plan is being reviewed or re-assessed. (Regulation 4, SEN PB Regulations 2014)
17. Government guidance says:
• There is no provision in law saying children receiving EOTISC should be provided with free school meals.
• The government expected councils to consider making available equivalent food provision for EOTISC children who would meet the criteria for free school meals if they were in a state-funded school. And meals would enable the child to benefit fully from the education being provided.
• Councils should assess the individual circumstances of the child.

What happened

Background

18. Y has SEN and has an EHC Plan. The previous Plan in 2023 did not name an educational placement. Section I said a mainstream setting was suitable for Y. Ms X appealed Sections B, F and I to the Tribunal.

2024

19. In June 2024, the Tribunal ordered the Council to issue an amended EHC Plan with EOTISC. The order said Y’s tuition should be increased gradually. Tuition would be for an hour a day to start, aiming for an increase to 10 hours a week within two terms, depending on Y’s response.
20. The Council issued Y’s post Tribunal EHC Plan in mid-July, with Section I blank to reflect Y would be receiving EOTISC. The special educational provision in Section F was weekly term-time one-to-one provision with a suitably qualified adult as follows:
• 40-minute session of emotional literacy support
• 60-minute session of Maths
• 60-minute session of English
• 60-minute session of emotional coaching support
• 50-minute session of occupational therapy with a qualified occupational therapist (OT)
21. Section F of the amended Plan said:
• The number of hours [of provision] will be five hours weekly to begin with and will increase gradually and at Y’s pace and will be forward looking with the aim of engaging Y for 10 hours a week
• Resources will be provided as requested by the tutor. The Council will commission a council Educational Psychologist to advise on appropriate support. The learning package will be overseen by a qualified teacher from the LA’s specialist teaching service.
• There would be provision of a lap-top for use prior to formal learning.
22. Ms X complained to the Council in July about a delay in issuing an amended EHC Plan following the Tribunal’s order. She later complained to the Council about the other matters raised in her complaint to the LGSCO.
23. Ms X requested a PB/DP for Y at the start of August. This included a breakdown of costs for Maths and English apps, educational-based trips. Ms X said in her request that “reasonable adjustments will need to be made as Y will not be able to manage a tutor at this time. So workbooks, apps etc until the point Y can think about a tutor.” Ms X also included funding for free school meals in her PB request.
24. The SEND Team refused Ms X’s request for a PB. The first email said only that the Council had refused it and would proceed to commission the provision in the EHC Plan that the Tribunal had ordered.
25. In a second email, the SEND Team said:
• The Tribunal recognised Y could not access education currently. The Council would implement provision at a pace and level suitable for her needs
• The Tribunal decision was that the equipment was for when Y was attending a setting
• It was offering private tuition for Y. It could take place on-line or in the home
• The OT sessions were funded and in place
• She could reclaim the cost of a lap-top up to £600 plus up to £100 for stationary.
26. The records indicate the Council’s SEND team and a tuition provider liaised by email in September. The tuition provider told the SEND Team it had sent an agreement to provide Y’s tuition and the Council had agreed the funding for this in writing in August and had spoken with the tutor who would make contact with Ms X.
27. There were further emails between Ms X, the tuition provider and the SEND Team in September. The proposed tutor contacted Ms X by email. The outcome of their email exchange was the tutor said she could not tutor Y.
28. In December, a member of staff from the tuition provider said they were told tuition could not take place in the home because of Y’s needs and the parent said tuition was not suitable.
29. Ms X said in an email in December to the tuition provider that ‘she had asked the Council to supply Y with something other than tutoring due to her trauma.’
30. The Council responded to Ms X’s complaint in November 2024 apologising for the delay in responding. It said:
• The Council had secured a tutor through a tuition provider which Ms X had refused. Y was receiving OT provision.
• The Council had confirmed the tuition provider could meet Y’s needs. This offer was still open as the provider matches tutors with students.
• Ms X needed to apply on-line for free school meals and the Council will respond.
31. Ms X escalated her complaint to the second stage of the Council’s complaint procedure shortly after receiving the first response.
32. Ms X contacted us in December as the Council had not provided a stage two response. We directed the Council to complete its complaint procedure. We prompted it several times to do so. The Council issued a stage two response at the end of April 2025. It apologised for the delay and offered a payment of £500 to reflect the avoidable frustration and time and trouble caused by its delay in complaint handling. The Council went on to say:
• It acknowledged she did not agree tuition was a suitable option for Y, but the tuition provider agreed they could support Y and funding arrangements were agreed at the end of August 2024. Ms X had not engaged with the tuition provider. The tutor had contacted Ms X to discuss arrangements and Ms X said tuition could not go ahead. The tuition provider then said, following contact with Ms X, that tuition could not go ahead.
• It offered on-line tuition
• Funding for Y’s OT provision for the school year 2024 to 2025 had been paid to the provider
• She had received information about how to apply for free school meals and she needed to apply and meet the criteria.
• It had paid for a laptop and for supplies. The tuition provider and OT provider were expected to source all necessary equipment. The Tribunal refused to order additional equipment.

Information from the Council

33. The Council told me:
• Ms X told officers Y’s anxiety and trauma was too severe for her to access tuition either on-line or face-to-face. Y’s post-Tribunal EHC Plan set out provision in stages to support her recovery. The Council referred Y for tuition with a tuition provider; it allocated a tutor. The tutor agreed with Ms X that Y was not ready for tuition and so it was put on hold
• Y is accessing OT which the Council has commissioned with an OT provider
• Ms X included a request for free school meals in her PB application.
• The request for a PB was discussed with a manager and declined.
• The Council did not have a policy on free school meals for children receiving EOTISC. It considered requests on a case-by-case basis.

Information from Ms X

34. Ms X told me:
• She had paid for Y’s lap-top and accessories and the Council had reimbursed her
• The Council was insisting provision was delivered by a tutor, but stage one of the Plan isn’t a tutor.
• Tuition was not suitable for Y she was in a permanent state of fight or flight, was aggressive and could not cope with demands on her
• She could not have a tutor at home as it was her safe space and she couldn’t meet one out of the home either
• She had now got vouchers for free school meals during school holidays

Findings

Did not secure the special educational provision on her child Y’s post Tribunal EHC Plan.

35. The Council is not at fault.
36. The Council is required to secure the special educational provision in Section F of the post-Tribunal Plan. The Tribunal ordered tuition and this is the provision in Section F. The Council secured Y’s tuition by commissioning a provider. It is not at fault.
37. Ms X says she did not reject tuition and the tutor said they could not provide a service to Y. However, Ms X said in her request for a PB that Y could not manage a tutor. On a balance of probabilities, Ms X refused tuition which is consistent with her view of Y not being able to manage tuition as she has told me.

Failed to deal with her request for a personal budget and direct payment in line with law or guidance

38. There is no fault by the Council which only has to consider PB requests during specific periods. Ms X’s request was not within an annual review or reassessment period.

Refused to fund free school meals

39. Ms X requested free school meals in with her PB request. The Council declined the PB. It has informed Ms X she needs to apply for free school meals in the usual way (there is an on-line form) and meet the criteria (these are based on household income) and it will consider her circumstances. She is now in receipt of FSM vouchers that cover the school holidays. There is no fault.

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Decision

40. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman