Summary: Mrs B complained about the Council’s handling of her son’s (X) education. The Council apologised for its poor handling of her enquiry about a personal budget, and it agreed it caused delays in the annual review process for his Education, Health, and Care plan. This was fault which caused Mrs B distress and uncertainty. However, we cannot say X experienced an injustice as a result. The Council will make a symbolic payment to acknowledge the impact its faults had on Mrs B. There was no fault on how the Council considered its alternative provision duty, and other parts of the complaint were not investigated as these were late or carried appeal rights.

The complaint

1. The complainant, Mrs B, complained about the Council’s handling of her son’s (X) education. She said it:
• failed to put transition support in place for X in 2023 when he attended a new school;
• caused delays in the review process for X’s Education, Health and Care (EHC) plan and failed to adhere to statutory timescales;
• wrongly refused an educational psychologist assessment in 2023 and in Summer 2024, but its panel subsequently agreed to the assessment;
• failed to consult her following its issue of a draft EHC plan, and disagreed with content in the plan, including how this had been amended;
• provided incorrect advice when she asked about a personal budget and communicated with her poorly; and
• failed to put in place alternative provision for X when existing provision stopped in November 2023, which he could engage with, and put provision in place in June 2024 without her agreement.
2. Mrs B said, as a result, her family had experienced distress and uncertainty, which impacted their mental health. She also said she had spent time and costs to support X herself, and X had experienced a loss of education.

Back to top

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 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. 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)
6. 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.
7. 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)
8. 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)

Back to top

What I have and have not investigated

9. I have investigated Mrs B’s complaint about the Council’s handling of X’s education between November 2023 to June 2024 when his final amended EHC plan was issued. This includes the alternative provision, the delay in the annual review process, and its communication and advice around personal budgets.
10. I have not investigated Mrs B’s complaint about:
• the Council’s handling of X’s education and the EHC plan process prior to November 2023. This is because this part of the complaint is late, and I have seen no good reason to exercise my discretion to consider this.
• how the Council consulted her on the draft EHC plans for X in Summer 2024, her disagreement about contents in the plan, and her request for an educational psychologist assessment. This is because the Council issued its final amended EHC plan for X in June 2024 which carried appeal rights to the SEND Tribunal and Mrs B exercised her right of appeal;
• the alternative provision the Council offered, or X received, after the issue of the June 2024 final amended EHC plan. This is because the plan listed a school placement and the provision X should receive when not in school. Any dispute about the suitability of the provision therefore carried appeal rights to the SEND Tribunal. I was also conscious this was not part of her initial complaint to the Council and Mrs B exercised her appeal rights; and
• Mrs B’s concerns about the Council’s handling of her personal budget request after Summer 2024, as this was not part of her initial complaint to the Council.

Back to top

How I considered this complaint

11. I considered evidence provided by Mrs B and Council as well as relevant law, policy and guidance.
12. Mrs B and Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
13. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

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 Tribunal or the council can do this. 
15. 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. 

Annual 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.
18. There is a right of appeal to the Tribunal against a council’s decisions. This includes a:

• decision not to carry out an EHC needs assessment or reassessment;
• 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

19. 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)
20. 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.
21. 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.

Alternative provision

22. 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.
23. 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)
24. 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
25. 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

26. 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.

Personal budgets

27. 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.
28. 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.
29. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
30. 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.

The Council’s complaints procedure

31. The Council’s complaints policy says it will respond to the complaints it receives through a three-stage process, which is;
• stage one, it will initially try and resolve complaints informally. If this is not possible it will provide a response within 10 working days;
• stage two, a senior manager will investigate and respond within 10 working days;
• stage 3, the Council’s Chief Executive, or delegated senior officer, will investigate and respond within 10 working days.
32. If it is not possible to respond within the timescales, it will inform the complainant of a new date when a response will be made.

Background

33. Mrs B’s son (X) has health, cognitive deficits, and neurological disability which impacts his ability to receive an education. He has an Education, Health, and Care (EHC) plan which sets out his needs, special educational needs provision, and his school placement. While he could not attend his school placement, some alternative provision was put in place.
34. In Spring 2023 the Council amended X’s EHC plan. The plan set out the secondary school placement he would be on roll with from September 2023, including the Alternative provision which was in place. This included tutoring, which was provided by a tutor well known to X for up to 12 hours per week.
35. In September 2023 X’s new school placement started, but he continued to be unable to attend school. Mrs B said this was because there had not been put enough transition planning in place. X continued to receive tutoring.

What happened

36. In November 2023 X’s alternative provision tutor was no longer able to work with him due to personal reasons.
37. The Council said the tutoring provider would provide a new tutor, but Mrs B declined this.
38. Mrs B says no tutor was provided as the provider did not have any tutors which could meet X’s needs. She also said the school could not carry out welfare checks, which the Council was informed about.
39. In January 2024 an annual review was held for X’s EHC plan. At the time, X was not receiving any educational provision arranged by the Council or his allocated school. Different options to support X was discussed, which included deregistering him from school, a personal budget, and finding other alternative provision. Mrs B arrange equine sessions, but X could not engage with these.
40. The school shared the annual review documents with the Council in February 2024. However, the documents were not shared with the allocated caseworker until two months later.
41. Mrs B says X’s mental health worsened in 2024. He was seen by his health professionals and the Child and Adolescent Mental Health Services (CAMHS). He received medication, but it took some time to get the dosage right. During this time X had suicidal ideations and became physically challenging which required police involvement. The Council’s social care arranged respite and support from a personal assistant. However, X was reluctant to engage with CAMHS and the assistant.
42. A draft EHC plan was shared with Mrs B in June 2024 which she commented on. A further draft EHC plan was shared with Mrs B a few weeks later, in which she was told no further amendments would be made. Two days later the Council issued its final amended EHC plan for X, which continued to list the secondary school. It said his special educational needs provision should be provided by a tutor, adults supporting him, or the school’s special educational needs coordinator (SENCO).
43. Mrs B said some parts of X’s needs had been amended in the final amended EHC plan. She also asked the Council for a new educational psychologist assessment.
44. The Council’s allocated officer did not find an educational psychologist assessment was needed but put the request to the Council’s panel for consideration. The panel subsequently agreed for the assessment to take place.
45. Mrs B also said a personal budget was discussed in the January 2024 annual review. The allocated caseworker subsequently suggested she could apply for this but later discouraged her from applying as the officer was unfamiliar with the process.
46. Mrs B appealed X’s final amended EHC plan to the SEND Tribunal in late August 2024.

Mrs B’s complaint

47. Mrs B complained to the Council in July 2024. The Council sought clarity of her points of complaint, which Mrs B responded to shortly after. However, the Council said it did not receive this and provided it stage one response.
48. Mrs B asked for her complaint to be escalated to stage two and explained she had made corrections to her initial complaint, but this had not been included in its response.
49. Three weeks later the Council asked Mrs B for the email in which she provided details about her complaint. Mrs B shared this with the Council. The Council offered her a face-to-face meeting to discuss the stage two complaint, and met with Mrs B. It subsequently provided its stage two response.
50. In September 2024 Mrs B escalated her complaint the final stage of the Council’s complaint process. The Council provided its final complaint response in October 2024.
51. The key points of Mrs B’s complaint, relevant for my investigation, were the Council:
• caused delays in review of X’s Education, Health and Care (EHC) plan and failed to adhere to statutory timescales in the process;

The Council agreed it had failed to adhere to the statutory timescales for the annual process and apologised.

• provided incorrect advice when she asked about a personal budget, and communicated with her poorly; and

The Council agreed it was not acceptable for its officer to discourage Mrs B applying due to its officer’s lack of knowledge about the process, and the information and communication with her had been poor. It explained the officer was told a personal budget could not be implemented until further tuition had been sought, but Mrs B had since been asked to put forward her personal budget request for the Council to consider.

It said it had arranged training for staff on annual reviews and personal budget for Autumn 2024.

• failed to put in place alternative provision for X when existing provision stopped in November 2023 which he could engage with, and put provision in place in June 2024 without her agreement. She said it wrongly continued to suggest tutoring which she did not agree was suitable.

Both the Council and Mrs B agreed several attempts had been made to provide X with alternative provision, and X had found it difficult to engage which meant no actual education provision was received. It did not agree it was at fault for attempting to put in place tutoring or other alternative provision as it had a duty to do so and had also been recommended by CAMHS. However, it accepted it had not properly considered Mrs B’s views.

It explained Mrs B had since appealed to the SEND Tribunal, it had agreed for an educational psychologist to assess X, and Mrs B could submit a reasoned personal budget request.

52. The Council told Mrs B in September 2024 her personal budget request could not be accepted and provided its reasons. Mrs B does not believe it properly explained its reasons or what she needed to do. It also explained it had provided the training to its officers on annual reviews and personal budgets in the end of October 2024.
53. Mrs B asked the Ombudsman to consider her complaint about the Council’s handling of X’s education and how it worked with her. She also raised concerns about how it had handled its complaints process.

Analysis and findings

The annual review process

54. The Council has agreed it was at fault for delays in completing X’s January 2024 annual review in line with the statutory timescales. This was fault, and it apologised to Mrs B.
55. As the Council agreed to amend X’s EHC plan in the January 2024 annual review, it should have issued X’s final amended EHC plan in the end of March 2024. However, it was not until June 2024 it completed the process. This therefore caused a three-month delay.
56. I found the Council’s delay did not cause X a significant injustice. This is because the Council’s view on the educational provision X should receive was largely the same as the provision it had attempted to put in place for him since November 2023. While I acknowledge Mrs B disagreed with the Council’s view, this was a matter to be considered in her SEND Tribunal appeal.
57. I found Mrs X did experience some injustice as a result of the Council’s handling of the annual review process. This was some distress and uncertainty, which the Council’s apology was not sufficient to remedy.
58. She also experienced a delay in her right to appeal to the SEND Tribunal. However, as she later withdrew her appeal, I cannot say she experienced an injustice due to her delayed appeal rights.

Personal budget and communication with Mrs B

59. The Council agreed it was at fault for how it had handled Mrs B’s enquiries about a personal budget between January to July 2024. This was therefore fault.
60. I agree with the Council’s view as it was not acceptable its officer failed to provide her with appropriate advice and information to enable her to make an informed decision, and the officer lack of familiarity with the process should not have prevented this from happening.
61. It is clear the Council’s poor handling of the personal budget process caused Mrs B some distress and uncertainty, and she lost trust in the allocated officer’s ability to support X. I am not satisfied the Council’s apology was enough the remedy the impact this had on her.
62. However, I cannot say the Council’s fault caused X an injustice. This is because the Council later refused the personal budget and Mrs B has since decided to home educate X.
63. I found the Council’s actions to provide training to its staff to address this fault and delays in its annual review process to be appropriate to prevent such delays and failures in the future.

X’s education and alternative provision from November 2023 to June 2024

64. The Council had a duty to provide X with an education in line with the provision set out in his EHC plan in place at the time.
65. It is agreed X has not received any meaningful education arranged by the Council since November 2023 when X’s tutor ceased working with him. I have considered whether this was fault by the Council.
66. The evidence shows:
• X’s school placement was available to him and the Council provided funding to the school to deliver the support. The plan also set out the tutoring provision X should receive when he was unable to attend school;
• the Council asked the existing tutoring company to provide an alternative tutor for X. This did not happen as the company did not have a tutor which could meet X’s needs;
• the January 2024 annual review considered alternative provision, but neither the school, Council, or Mrs B could come up with appropriate alternatives which they believed X could engage with. Although some equine sessions were arranged and Mrs B suggested other less educational online activities to engage X;
• X could not engage with the equine sessions, leave the family home, nor some other provision Mrs B put in place. He also did not engage well with CAMHS and the social care assistant which was put in place; and
• Other tuition was later arranged by the Council, but Mrs B did not find this appropriate for X and declined this.
67. I found the Council considered its Section 19 duty, its local offer, and Mrs B’s views of any provision X may have been able to engage with. It was entitled to reach its view tutoring was appropriate for X. While I acknowledge this did not lead to any meaningful education of X, I have not found this was therefore fault by the Council.

Complaints handling

68. The Council provided its responses to Mrs B’s complaints for each stage of its complaints process. The evidence shows Mrs B made corrections to her stage one complaint, but the Council did not receive this. In addition, its stage two and stage three responses both took around two weeks longer than set out in its policy.
69. I have not found the Council’s delay in responding to Mrs B’s complaint to be fault. This is because:
• it included the corrections Mrs B had made in its stage two response and met with her;
• Mrs B was aware the manager responsible for the stage two investigation was on leave; and
• the delays in both instances were limited.
70. Even if I had found fault by the Council, I am not satisfied the delays caused a significant injustice.

Back to top

Action

71. To remedy the injustice the Council caused to Mrs B, the Council should, within one month of the final decision:
1. pay Ms F a symbolic payment of £250 to acknowledge the distress and uncertainty she experienced as a result of the Council’s delayed annual review process and handling of her personal budget enquiry from January to June 2024.
72. Within three months of the final decision the Council should also:
1. provide an update on the Council’s staff training for the annual review and personal budget process for its staff, which it agreed to in its complaint’s responses.
73. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

74. I have completed my investigation with a finding of some fault by the Council, which caused Mrs B an injustice. The Council should make a symbolic payment to acknowledge the impact this had on her.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman