Summary: The complainant (Mrs X) said the Council’s failed when getting professional advice during her son’s (Y) Education Health and Care (EHC) needs assessment and failed to comply with the Education Health and Care plan (EHCP) timescales. She also complained about delays with Personal Budget and direct payments and the Council’s failure to arrange alternative education for Y from September 2022. We found the Council at fault in most areas of Mrs X’s complaint. This fault caused injustice to Y and Mrs X. The fault found in getting professional advice for EHCP did not cause Y and Mrs X injustice. We did not find fault with the Council’s timescales when considering Mrs X’s Personal Budget request. The Council agreed to apologise, make payments to recognise injustice caused to Y and Mrs X and advise Mrs X of her appeal rights. The Council also agreed some service improvements.

The complaint

1. Mrs X says the Council failed to:
• Comply with the statutory EHCP timescales;
• Carry out assessments needed to inform Y’s EHCP;
• Provide education for Y from September 2022;
• Make direct payments following the Council’s agreement to deliver Y’s Education Otherwise Than at School (EOTAS) package through Personal Budget;
• Provide consistency of support and accountability.
2. Mrs X says the Council’s failings meant loss of education for Y and had impact on her work as she had to stay at home to arrange education for Y. She also spent much time chasing the Council and complaining.

Back to top

What I have and have not investigated

3. I have not investigated the content of Y’s final EHCP as this can be appealed to the Special Educational Needs and Disabilities (SEND) Tribunal.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
7. 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 report.
8. A child with special educational needs 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 A to K. We cannot direct changes to Sections B and F about education, or name a different school in Section I. Only the SEND Tribunal can do this.
9. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think 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)
11. 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.

Back to top

How I considered this complaint

12. I spoke with Mrs X and considered the information she provided.
13. I made enquiries with the Council and considered the information it provided.
14. I reviewed the Council’s policy ‘Personal Budgets for Education, Health and Care (EHC) Plans’ and referred to the Ombudsman’s ‘Principles of good administrative practice’.
15. 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

Legal and administrative background

Advice received during the EHC needs assessment

16. As part of the assessment councils must gather advice from relevant professionals. This includes:

• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

(Special Education Needs Regulations 2014 paragraph 6(1))

EHCP

17. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• Where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• The whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

18. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. 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 EHC Plan has been issued.
19. Education Otherwise Than at School (EOTAS) is educational provision for a child or young person who is unable to attend mainstream or special needs schooling. It can include online schooling and home tuition. It is only provided where a council decides it is inappropriate for provision to be made in school.
20. The council must secure special educational provisions (SEP) detailed in the plan. The council is only relieved of this duty if the child or young person has made suitable alternative arrangements themselves. If a parent does make alternative arrangements the council must satisfy itself those arrangements are suitable.

Personal Budget

21. Councils must provide parents and young children with information on:
• The provision for which a personal budget may be available;
• Details of organisations that provide advice and assistance on personal budgets;
• The conditions which must be met before direct payments may be made;

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 3)

22. A council must consider a request for a direct payment if a child’s parent made it at any time during the period in which the draft EHCP is being prepared or reviewed. (Special Educational Needs (Personal Budgets) Regulations 2014 regulation 4)
23. Where a council refuses to make direct payment it must:
• Inform the child’s parents in writing of its decision, providing the reasons and informing of the right to request a review;
• Carry out a review of its decision, if requested to do so, considering any representations made by the child’s parent;
• Inform the child’s parent in writing of the outcome of the review, giving reasons.

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 7)

Alternative education

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. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
26. 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)
27. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education.

Key facts

Background

28. Y is 10 and has an Autistic Spectrum Disorder (ASD) diagnosis, significant sensory processing difficulties, anxiety, speech difficulties and problems with sleeping.
29. Since September 2021 Y struggled to attend his school (the School). The combination of his special educational needs (SEN) and the return to pre COVID 19 arrangements at the School proved challenging for him.

EHCP process

30. Mrs X asked the Council to carry out an EHC needs assessment for Y in the second week of October 2021. She explained Y’s educational history and his continuing difficulties with attending school, shown by his attendance rate just over 50%. Ten days later the School sent a similar request to the Council.
31. The Council decided to carry out an EHC needs assessment for Y in the second week of November. In December a Speech and Language Therapist (SLT) and an Educational Psychologist (EP) provided their advice. Mrs X was not happy with the content of the EP advice as it was based on a remote assessment.
32. In the beginning of January 2022 the Council agreed to issue an EHCP for Y.
33. Following the receipt of a draft EHCP, Mrs X asked for EOTAS for Y.
34. At the end of May the Council agreed to carry out a sensory Occupational Therapy (OT) assessment, which took place in November. The OT report was prepared at the end of November.
35. In mid-June Mrs X complained about the Council’s delays within the EHCP process. The next day the Council discussed with her the EOTAS option for Y. In the beginning of July Mrs X sent a specific proposal of an educational package for Y which would be delivered at home.
36. Following the meeting with Mrs X in the beginning of July, the Council responded to her complaint. In its response the Council:
• Apologised for the delays in issuing an EHCP for Y and inconsistent communication;
• Confirmed it would consider Mrs X’s request for EOTAS by the end of July;
• Acknowledged Mrs X’s request not to complete Y’s EHCP until all the assessments were done and
• Listed service improvements undertaken to avoid similar failings in the future;
37. The Council issued Y’s final EHCP in the second week of October. When responding to my enquiries the Council failed to provide me with the evidence it sent the final EHCP to the parents with the advice on their appeal rights immediately after issuing. The parents only got Y’s final EHCP in the second week of January 2023. Rather than naming a specific educational placement in Section I of Y’s plan, the Council stated the type of provision he needed, that is a local maintained mainstream primary school or academy.
38. In the beginning of January 2023, the Council amended Y’s EHCP issued in October 2022. It amended Section I by adding the EOTAS package until the end of the academic year 2022/2023 and marking its intent to seek a special placement for Y from September 2023. It also included the OT report of November 2022 in Section K and proposed amending other sections of the EHCP based on this report.
39. Following a meeting with Mrs X, later in January the Council agreed to carry out a new EP assessment for Y.
40. The Council finalised Y’s amended EHCP at the end of February. It contained details of the agreed Personal Budget in Section J. Section I of the plan was left blank. Mrs X was not happy the Council removed from the EHCP findings and recommendations of the most recent OT report of November and the report was not included in Section K.

Personal Budget

41. At the end of August 2022, following the Council’s agreement to EOTAS, Mrs X asked the Council for a Personal Budget for Y.
42. At the beginning of October, following extensive correspondence, the Council told Mrs X it would fund a small part of the proposed EOTAS package, consisting of some tutoring and a pen.
43. In the beginning of November Mrs X complained about the lack of progress with the Personal Budget funding.
44. Responding to Mrs X’s complaint after a month, the Council apologised for the delay in providing its response. The Council reviewed its position and extended its agreement for the Personal Budget to cover more provision, while explaining the reasons for not accepting the remaining ones.
45. In its response to my enquiries the Council explained the delays in agreeing Personal Budget for Y were caused by the extent of provisions sought by Mrs X, some of them not included in Section F of Y’s EHCP. The Council tried to resolve the issues through the exchange of emails and discussions. Applying due diligence to this highly complex case caused further delays to the process.
46. The amended EHCP issued at the end of February 2023 included details of the Personal Budget agreed by the Council.
47. After many emails chasing direct payments, in March 2023 Mrs X contacted the Council’s Chief Executive alerting him to the fact that she still did had received any payments and Y had been without education for many months.
48. At the end of March the Council sent Mrs X a direct payment agreement for the one-off payment of a third of annual Personal Budget agreed for Y. The Council paid this sum to Mrs X a few days later.

Alternative education

49. Until the end of summer term 2022 the School arranged Y’s access to the alternative provision (the Provider). The School sent Y work, organised online meetings with teachers and pupils and kept regular contact with Y and his parents.
50. In the autumn term 2022 the Council offered some tutoring for Y. Mrs X asked, however, for Y to receive tuition from the tutor she found and who delivered some tutoring session to Y in August 2022. The Council agreed to fund private tuition through direct payments in the beginning of October. Y received individual hours of tuition most weeks until mid-November. In the beginning of November Mrs X complained about the lack of progress with the EOTAS funding. She eventually got reimbursed tuition fees for the autumn term in March 2023.
51. Once his tutor left before Christmas, Y received no education and no SEP.

Analysis

Professional advice received during the EHC needs assessment

52. Mrs X complained about an EP advice obtained by the Council in the autumn term 2021 as this was based on the remote assessment. We would not criticise the Council for carrying out the assessment in this way for the following reasons:
• We do not assess the quality of professional advice obtained as part of an EHC needs assessment. If the parents are not happy with the advice, this can be challenged through an appeal to the SEND Tribunal once the Council issues a final EHCP;
• In view of the COVID-19 restrictions at times the remote assessments were the only way councils could comply with their statutory duties.
53. The Council agreed to carry out an OT sensory assessment for Y in May 2022 and the OT issued a report at the end of November. Although obtaining an OT advice is not required by law, as explained under paragraph 16 councils should get professional advice asked for by the parents if it considers this reasonable.
54. The Council agreed for an OT to assess Y in May 2022, six months after it decided to carry out Y’s EHC needs assessment. This delay is fault as it would have made it impossible to comply with the statutory timescales for issuing an EHCP. It did not cause injustice to Y though, as even after receiving the OT report, the Council did not include its findings and recommendations in the amended EHCP of February 2023. As mentioned above, we cannot criticise the Council for the content of Sections B, F and I as these parts can be appealed to the SEND Tribunal.

EHCP timescales

55. The Council should have issued Y’s final EHCP within 20 weeks from the date of Mrs X’s request for Y’s EHC needs assessment, so at the end of February 2022. In fact, the Council issued Y’s final EHCP in the second week of October 2022. In its comments to my draft decision the Council said it sent it to Mrs X at the time, advising her of the appeal rights, but it did not provide any evidence to support this claim, even though I asked for it in my enquiries. Mrs X received Y’s final EHCP in the second week of January, only after complaining to the Council. On the balance of probabilities, with the lack of the evidence to the contrary, it is more likely the Council failed to send EHCP to Mrs X in October. When sending the final EHCP in January and the final amended EHCP in February the Council failed to advise Mrs X of her appeal rights.
56. During the process of issuing Y’s EHCP the Council failed to:
• Comply with the statutory timescales; it delayed issuing Y’s EHCP by seven and a half months;
• Send Y’s final EHCP to Mrs X in October 2022; Mrs X received Y’s EHCP three months after the Council had issued the plan;
• Advise Mrs X about her appeal rights if unhappy with the content of Sections B, F and I;
57. The Council’s failings listed above are fault, which caused injustice to Y and Mrs X. Y and Mrs X remained uncertain about educational arrangements needed by Y, including the Council’s proposal for his next placement. Besides due to the delays Mrs X could not challenge the Council’s position on arrangements needed to support his education.
58. Although the Council suggested some of the delays within the EHCP process were caused by Mrs X’s request not to finalise the plan without updated professional advice, the Council should have complied with the statutory timescales. Councils do not have flexibility to extend the statutory timescales for issuing EHCPs, unless specific circumstances listed in the SEND Regulations 2014 occur. This was not the case when issuing Y’s EHCP.

Personal Budget

59. When considering how the Council handled Mrs X’s Personal Budget request we are looking at the process rather than the merits of the Council’s decision. When asked for a Personal Budget to be delivered through direct payments councils can refuse such requests but must follow the process described in paragraph 23 of this decision.
60. The evidence available for this complaint shows the Council failed to:
• Provide Mrs X with the information listed in paragraph 21 of this decision;
• Once the Personal Budget was agreed to expedite direct payments.
61. The Council’s failings amount to fault. This caused distress to Mrs X. Not having clarity about the process, Mrs X spent much time and trouble communicating with the Council, chasing its responses and complaining. Delays with making direct payments caused Y to miss education.
62. The Council also failed to tell Mrs X of her right to ask for a review of the Council’s decision refusing parts of her Personal Budget request. This, however, did not cause her injustice as the Council reviewed its decision anyway, after Mrs X had complained.
63. I do not find fault with the Council’s timescales for considering Mrs X’s Personal Budget. The law does not stipulate these timescales, so we need to apply general principles of good administrative practice, as explained in our guidance mentioned in paragraph 14 of this decision. Due to the complexity of what Mrs X was asking for as part of Y’s EOTAS package, just over two months to make a decision and extra two months to review this decision do not seem excessive.

Alternative education

64. Until the end of July 2022 Y received alternative education at home mainly arranged by the School. In August the Council agreed for his education to be provided at home through an EOTAS package until it could find a suitable school placement for him.
65. The Council failed to comply with its section 19 duty to provide suitable education for Y from September 2022. In the autumn term 2022 Y received a few hours of tutoring arranged by Mrs X but it cannot be seen as an equivalent of full-time education. In its response to my draft decision the Council said Y could not have accessed more education as even his current educational package was very limited. There is no evidence, however, that at the time the Council carried out any assessments aimed at finding Y’s capacity to access education. When making recommendations for the injustice caused by the lack of full-time alternative education in the autumn term 2022, we took into consideration the Council eventually reimbursed Mrs X the costs of private tuition received by Y in the autumn term.
66. From the beginning of January 2023 Y had no education as Mrs X waited for the funding from the Council for the EOTAS package. The Council agreed an extended EOTAS package which would be delivered via a Personal Budget in December 2022 but did not provide funding until the end of March. This made it impossible for Mrs X to make arrangements in accordance with the agreed EOTAS and resulted in the lack of education for Y.
67. From the second week of October 2022 the Council failed to ensure Y received SEP named in Y’s EHCP.
68. The Council’s failings to provide suitable alternative education for Y and from mid-October ensure delivery of SEP are fault which caused Y and Mrs X injustice. They caused Y to miss education and affected Mrs X financially. She also had much time and trouble contacting the Council to prompt its actions.

Back to top

Agreed action

69. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• Apologise to Mrs X and Y for the injustice caused to them by the faults identified;
• Pay Mrs X £500 to recognise the negative impact of the delay in issuing a final EHCP for Y;
• Pay Mrs X £1,600 to recognise injustice caused by the lack of suitable education for Y in the autumn term 2022 and £1,800 to recognise injustice caused by the lack of suitable education for Y in the spring term 2023;
• Pay Mrs X £500 to recognise the distress caused to her by the Council’s failings with providing information and making direct payments;
• Advise Mrs X on her right to appeal Sections B, F and I of Y’s final EHCP issued in February 2023 and the option of asking the SEND Tribunal for an extension of time to appeal.

The Council will provide the evidence that this has happened.

70. We also recommend the Council within three months of the final decision:
• Provide us with its plan to improve compliance with the EHCP timescales;
• Provide training to its SEN staff and review the process to ensure when sending final EHCPs to parents/young people, the Council advise them on their appeal rights;
• Review its Personal Budget process to ensure:
1. When requesting Personal Budget parents/young people are provided with the advice on:
1. The provision for which a personal budget may be available;
2. Details of the organisations that provide advice and assistance on personal budgets;
3. The conditions which must be met before direct payments may be made;
4. Right to ask for a review of the decision refusing direct payments.
2. Once Personal Budget is agreed to be delivered through direct payments there are clear steps for making funds available to the parents/young people.

The Council will provide the evidence that this has happened.

Back to top

Final decision

71. I partly uphold Mrs X’s complaint about the Council’s failings to comply with the Education Health and Care plan timescales, when considering her Personal Budget request and arranging direct payments and to arrange alternative education for Y from September 2022. I found faults which caused Y and Mrs X injustice. I do not uphold Mrs X’s complaint about the advice obtained during Y’s EHC needs assessment and delays with considering her request for Personal Budget. The Council has accepted my recommendations so this investigation is at an end.

Back to top

Investigator's decision on behalf of the Ombudsman