Summary: Mrs X complains about the Council’s failure to secure alternative education provision and respond to her requests for a personal budget for her child, Child Y. The Council was at fault for not arranging alternative education for Child Y sooner and not considering how much education was suitable. The Council took longer than it should to complete the annual review of Child Y’s Education, Health and Care Plan in 2021. The Council has also not responded to Mrs X’s earlier requests for a personal budget. These faults have caused injustice to Child Y and Mrs X, which the Council has now agreed to remedy. The Council will also issue reminders to relevant staff to avoid recurrence of these issues.

The complaint

1. Mrs X complains about the Council’s failure to secure alternative provision for her child, Child Y, when they stopped attending school in November 2021. Mrs X also complains the Council failed to respond to her requests for a personal budget made in November and December 2021, and January and February 2022. Mrs X says her family has had to fund alternative provision for Child Y in the absence of the Council providing this and she wants the Council to reimburse these costs. Mrs X is also unhappy with the Council’s complaints responses, which she feels have failed to properly address her concerns.

Back to top

The Ombudsman’s role and powers

2. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
3. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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)

Back to top

How I considered this complaint

7. I have spoken to Mrs X and considered the information she has provided in support of her complaints.
8. I have considered the information the Council has provided in response to my enquiries.
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant guidance

Special Educational Needs

11. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
12. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
13. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.
14. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance.
15. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)

Personal budgets

16. A personal budget is an amount of money identified by a council to deliver provision set out in an EHCP where the parent or young person is involved in securing that provision. Councils must provide information that sets out a description of the services across education, health and social care that lends itself to the use of personal budgets.
17. Councils should prepare a budget when requested. Parents/carers can ask for a personal budget when an EHC assessment confirms that a council will prepare an EHCP or during a statutory review.
18. Parents/carers can be involved in securing provision through the use of personal budgets, or an arrangement where the council or school hold the budget, or third party agreements where personal budgets are managed by an individual or organisation, or a combination of the above. Parents/carers should be given an indication of the level of funding at the planning stage. The final allocation of funding must be sufficient to secure the agreed provision and should be set out in section J of the draft EHCP.
19. If a council refuses a personal budget request, it must explain its reasons in writing to the parents/carers and inform them of their right to ask for a review of the decision.

Alternative Provision

20. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
21. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
22. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
23. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
24. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
25. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
26. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

27. This is a timeline of key events and does not include everything that happened.
28. Child Y has complex needs, which include a diagnosis of Autistic Spectrum Condition (ASC), Obsessive Compulsive Disorder (OCD) and severe anxiety. Child Y has and Educational, Health and Care Plan (EHCP) to help them while at school. Since September 2020, Child Y has attended the placement named in their EHCP, School B. School B is a special educational needs school for children with ASC.
29. In early July 2021, Mrs X and School B had an annual review meeting about Child Y’s EHCP. School B sent all the paperwork from this meeting to the Council shortly after the meeting.
30. Child Y started to disengage with education at School B in September 2021. By the end of October 2021, Child Y was not attending School B at all. The Council held a multi-disciplinary team meeting on 1 November 2021 to discuss a way forward with Child Y’s education.
31. The Council issued a notice to Child Y’s parents on 16 November 2021 to confirm the outcome of the annual review held in July 2021. The Council said it would be maintaining Child Y’s EHCP and gave Mrs X (and her husband) details of how she could appeal this decision with the SEND Tribunal. Mrs X made an appeal shortly after this.
32. An early review of Child Y’s EHCP took place on 23 November 2021, in which all agreed an alternative education placement should be explored for Child X, together with an Educational Psychologist’s assessment.
33. On 16 December 2021, School B sent the Council the annual review paperwork for Child Y’s EHCP together with a notice that it could no longer meet their needs and would be ending their placement.
34. On 10 January 2022, Child Y started to receive 10 hours per week of tuition in English and Maths funded by the Council. Mrs X asked the Council to consider specialist ASD provision for Child Y from a provider she had identified.
35. Mrs X’s appeal to the SEND Tribunal was settled via a consent order on 28 March 2022. The Council agreed to fund SEN provision for Child Y out of a school setting and issued the final EHCP confirming this on 6 May 2022. The Council also agreed a personal budget to cover most of the SEN provision in Child Y’s EHCP until June 2022, when it committed to complete another annual review.
36. A further annual review of Child Y’s EHCP was completed at the end of July 2022. The Council issued the final EHCP from this on 2 September 2022 and the personal budget to fund provision within the EHCP for the next year was agreed at the end of December 2022.

Analysis

Alternative provision for Child Y

37. The Council’s response to my enquiries confirms it was aware of Child Y’s absence from School B from at least mid-October 2021. The Council should therefore have been considering its duties to Child Y under section 19 of the Education Act from this point.
38. The Council does not appear to have acted on Child Y’s absence from school until 10 January 2022. This means Child Y missed out on approximately 7.5 weeks of term time they should have been in education. This was fault, which caused injustice to Child Y and their family, which the Council has not remedied.
39. When the Council put home tuition in place for Child Y, it did not consider whether the 10 hours a week it provided was suitable for Child Y based on their age, aptitude, ability and SEN. Mrs X was asking for more provision during this time but her requests to the Council were acted upon. Failure by the Council to make any such assessment of how much education was suitable for Child Y was fault which caused injustice to them and their family.

Personal budget

40. In response to my enquiries, the Council has said it cannot evidence why it did not respond to Mrs X’s requests for a personal budget made from November 2021 to February 2022.
41. The Council therefore does not dispute that Mrs X made requests for a personal budget on at least four occasions during this period. Its failure to provide any evidence to explain why it did not act on these requests is fault.
42. This fault caused significant frustration and uncertainty for Mrs X and in turn Child Y. The Council has agreed to remedy the injustice caused by this fault by completing the actions set out below.

Funding for alternative provision

43. Mrs X asked the Council to reimburse the costs she and her family incurred paying for additional specialist provision for Child Y while they were absent from school. Mrs X included this in the complaints she made to the Council in January and June 2022.
44. The Council has explained that it can only fund the specialist provision from Mrs X’s chosen providers from the point it issued the final EHCP following the SEND Tribunal. I would agree with this as the specialist provision was not something stated in Child Y’s previous EHCP and the Council is therefore under no obligation to fund this. My findings earlier in this statement do however seek to address the injustice caused to Child Y and his family by the Council’s failure to secure suitable alternative provision in the timely way.

EHCP annual review

45. Following the EHCP annual review meeting in July 2021 and to comply with statutory timescales, the Council should have issued its decision not to amend Child Y’s EHCP in early August 2021. The Council did not issue this formal notice to Mrs X until November 2021.
46. This was fault which caused injustice to Child Y and Mrs X. The Council has not provided any explanation for what appears to be an unavoidable delay. This delayed Mrs X’s appeal rights to the SEND Tribunal. It has also created uncertainty as Mrs X will now never know if the impact of off-rolling Child Y from School B could have been minimised if the Council had acted sooner.

Complaint handling

47. Mrs X’s complaints to the Council about Child Y’s education indicated how she has not felt heard by the Council. The Council’s stage two complaint response also appears to have been late according the Council’s complaint policy which states it will respond to stage two complaints in 25 working days.
48. Mrs X first made her stage two complaint on 27 May 2022. She sent further details of her concerns to the Council on 6 and 22 June 2022. The Council responded to her complaint on 2 August 2022.
49. I consider the Council’s stage two complaint response was thorough and addressed all of Mrs X’s concerns, albeit I appreciate she does not agree. The response was however late and I can understand how this is likely to have added to Mrs X’s feeling on not being listened to or taken seriously. The Council’s delay in complaint handling was fault which caused unnecessary frustration to Mrs X, which the Council should remedy.

Back to top

Agreed action

50. Within one month of my final decision, the Council has agreed to:

• apologise to Mrs X and Child Y for the injustice caused by the faults identified in this decision statement. The apology to Child Y should only be provided if Mrs X feels this is appropriate and in a format that best suits Child Y’s needs;
• make a payment of £500 to Mrs X for frustration, uncertainty and distress caused to her by the faults identified in this decision statement;
• make a payment of £1,200 for the benefit of Child Y for injustice caused by Council faults identified above.

51. Within three months of my final decision, the Council has agreed to:

• remind relevant staff of the Council’s duties under law and guidance to provide alternative provision when a child of statutory school age is out of school for health or other reasons. The Council should consider sharing a copy of our focus report ‘Out of school…. Out of sight?’ and this final decision with the reminder;
• remind relevant staff to ensure they obtain EHCP review documentation, issue notices within timescales, approach school settings in good time, consult professionals in good time, issue the EHCP within timescales and keep young people and parents informed; and,
• ensure relevant staff are made aware of the importance of making and keeping clear and accurate records of their decision making in respect of personal budget requests.

52. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

53. I have completed my investigation and found fault with the Council. This fault has caused Child Y and Mrs X injustice and the Council has agreed to take the recommended action to remedy that injustice and improve its service.

Back to top

Investigator's decision on behalf of the Ombudsman