• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Ms X complains the Council failed to provide alternative provision for her daughter, Y from January 2022. Ms X also complains about the way the Council implemented a personal budget. We have found there was a delay by the Council in issuing a final Education Health and Care Plan and fault with its record keeping. The Council has agreed to apologise, make a symbolic payment and service improvements to address the injustice caused. We have found no fault with the way the Council considered alternative provision and the personal budget.

The complaint

1. Ms X complains the Council failed to provide alternative provision for her daughter, Y, from January 2022. Ms X also complains about the way the Council implemented a personal budget.
2. Ms X said this has caused her significant stress and she is concerned about the long-term effect this will have on her daughter.

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The Ombudsman’s role and powers

3. 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)
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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. When considering complaints, 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.
8. 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)
9. 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.
10. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
11. 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)

12. 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)
13. 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

14. Ms X said her daughter, Y, has not consistently received a full-time education from November 2022. Ms X did not complain to the Council about this until April 2023. For the reasons set out in paragraph 3 above, I am investigating this part of Ms X’s complaint from April 2022.
15. I have not investigated the delivery of education and special educational provision to Y after Ms X’s right to appeal was engaged in January 2023. Ms X appealed in April 2023 and asked the SEND Tribunal to consider Y’s special education needs set out in Section B and the Education Other Than at School (EOTAS) package set out in Section F. Ms X said the EOTAS package was inadequate, lacking in provision and specificity.

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How I considered this complaint

16. I considered the information provided by Ms X and discussed the complaint with her. I made enquiries of the Council and considered its response.
17. Ms X and the Council had the opportunity to consider my draft decision. I have considered all comments before reaching a final decision.

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What I found

18. 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.
19. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
20. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
21. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Education, Health and Care (EHC) Plan

22. 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.

Timescales and process for EHC assessment 

23. Statutory guidance for ‘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 the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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).  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Personal Budgets

24. 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.
25. 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.

26. The council’s duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.

Appeal rights

27. There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• 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;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

What happened

Background

28. In December 2021, Ms X received a letter from Y’s school (School A) stating that Y would be permanently excluded.
29. On 2 February 2022, Y started to attend a catholic school (School B) as part of a managed move to avoid exclusion. Y attended for three weeks. The Council said that Y would remain on roll at the school while it investigated alternative provision and made an early referral for an educational psychologist assessment.

Events between April 2022 to January 2023

30. There was a great deal of correspondence and discussion between Ms X and the Council during this period. It is not necessary for me to detail everything that happened here. I have set out the key events.
31. In early April, School B told Ms X that the managed move would be terminated at the end of the month. Ms X appealed and School B agreed to keep Y’s placement open. Ms X said Y was unable to attend for the rest of the year due to high levels of anxiety.
32. An educational psychologist (EP) met with Y. The EP reported that Y did not engage with them.
33. On 11 May, the Council contacted three schools about a managed move for Y. The Council offered Y a managed move to School C. Ms X refused. Y remained on roll at School B.
34. On 15 June, Ms X asked the Council to complete a EHC needs assessment for Y.
35. In July, the Council arranged tuition for Y in Maths and English. Ms X cancelled the Maths tutor after the first session as she felt it wouldn’t work because Y had not responded. Ms X was happy for Y to receive English tuition as she felt the tutor had engaged well with Y. Ms X declined the offer of a different maths tutor.
36. The Council agreed to continue tuition throughout the summer holidays. Y did not respond well to the science tutor and therefore this tuition was put on hold.
37. On 27 July, the Council agreed to complete a EHC needs assessment for Y and informed Ms X of its decision.
38. In September, Y returned to School B on a part-time timetable for three days per week for approximately three hours. Y also continued to receive 3.5 hours of maths tuition.
39. On 22 September, Ms X chased the Council for an update on the EHC assessment. The Council told Ms X it was waiting a response from the EP.
40. On 11 October, the Council agreed to issue an EHC Plan for Y. Following further advice received from the EP the Council consulted with three mainstream schools.
41. On 25 October, the Council sent a draft EHC Plan to Ms X.
42. At the end of October, Y stopped attending School B. Ms X said the school could not meet Y’s needs and she was too traumatised to return. The Council told Ms X that a place was available at School A, and it would continue to provide tuition for Y.
43. On 9 November, Ms X responded to the draft EHC Plan and asked the Council to consult with an alternative school, School D. Ms X also asked the Council if Y could receive biology tuition.
44. On 24 November, the Council told Ms X that School D did not have capacity for a year 10 student until September 2024. Ms X subsequently responded to the draft EHC Plan and said Y required a bespoke EOTAS package until a suitable school placement was provided. Ms X said the package should offer more than 3.5 hours tuition and should include science.
45. On 28 November, Ms X informed the Council that Y had been diagnosed with Autism and Attention Deficit Hyperactivity Disorder (ADHD).
46. On 5 December, a principal EP informed the Council that Y’s needs had changed following her previous report in October. The EP said a mainstream school could still meet Y’s needs but in the short-term Y would benefit from a bespoke home tuition package that covered English, Maths, Science and creative subjects such as drama and sports.
47. On 6 December, the Council met with Ms X and Y’s tutor. Ms X said she wanted the tuition to remain in place for five hours per week with a focus on English, and additional provision for Maths and Science.
48. On 12 December, Ms X sent an email to the Council stating she had requested a parent/carer assessment but had not received a response. Ms X said she needed respite.
49. On 14 December, the Council sent Ms X information on personal budgets. Ms X responded on the same day and said that without access to a suitable education for over a year, Y needed a personal budget to support her educational needs and integration back into school. Ms X said a mainstream school was not a suitable way to support Y’s special educational needs. Ms X provided the Council with a summary of the provision she felt Y required via a personal budget. This included one to one tutoring for 16 hours per week and attendance at a drama school for three hours per week. Ms X provided costings for each provision.
50. On 21 December, the Council agreed to Ms X’s request for a personal budget on the basis that local schools including an independent mainstream school had communicated an inability to meet Y’s needs. The Council agreed to 16 hours tuition per week and attendance at a drama school.
51. The next day, the Council told Ms X it had secured provision at a drama school. Ms X said this was ‘excellent news’. Ms X said to facilitate the tuition hours secured in the personal budget Y required the right environment. Ms X said Y required peer interaction and 13 hours of study at home would be hard going for Y.
52. On 7 January 2023, Y attended drama school. Subsequently, Ms X informed the Council that Y had left the provision due to heightened overwhelming feelings and sensory overload. Ms X said drama school was no longer a suitable option for Y.
53. On 13 January, the Council issued a final EHC Plan and informed Ms X of her appeal rights. Section F of the Plan stated that a time limited bespoke package of EOTAS was in place for Y. This included:

• 15 hours of tuition;
• four hours of study skills training;
• weekly drama lessons; and
• bi-weekly physical education opportunities.

Events between April 2023 and May 2023

54. On 11 April 2023, Ms X complained to the Council. Ms X said the EHC Plan was not fit for purpose and the EOTAS package did not provide suitable or alternative educational provision. Miss X said the Council had failed to secure provision set out in Y’s EHC Plan which required amendment to accurately reflect Y’s needs and bespoke EOTAS provision. Ms X said Y’s needs were underestimated under section B of the EHC Plan and she disagreed with the provision set out in section F. Ms X also complained the Council had failed to undertake a parent carer assessment.

55. On 14 April, Ms X appealed to the SEND Tribunal. Ms X asked the Tribunal to consider the description of Y’s special education needs set out in Section B and the EOTAS package set out in Section F.
56. On 24 April, the Council responded to Ms X’s complaint at stage one of its procedure. The Council said Ms X had requested a personal budget for EOTAS and the Council agreed to this request. The Council said there was no evidence the personal budget was not fit for purpose.
57. On 1 May, Ms X asked for her complaint to be escalated to stage two. The Council said it was not able to investigate the issues at the time as Ms X had lodged an appeal to the SEND tribunal about the same issues. The Council said Ms X could make a further complaint after the Tribunal had ended.

Analysis

EHC process

58. We expect Councils to follow the statutory timescales set out in law and the Code which is statutory guidance. We measure a council’s performance against the Code, and we are likely to find fault where there are significant breaches to timescales.
59. The Council decided to carry out an EHC needs assessment at the end of July 2022. This means the EP’s report should have been available by 7 September to comply with the six-week timeframe. The EP report was not completed until 11 October which is a delay of approximately five weeks. I note the reasons for the delay was due to staff sickness within the educational psychology service. Whilst this was outside of the Council’s control the delay was not in line with the Code and was service failure.
60. This also meant the Council failed to issue the final EHC Plan within the 20 weeks statutory timescale from the date of Ms X’s request in July 2022. The Council should have issued Y’s final EHC plan around early November 2022. It issued the plan on 13 January 2023, a delay of approximately ten weeks. Failure to meet the 20 week deadline was service failure and caused Ms X and Y uncertainty and frustration.

Alternative provision

61. The law is clear that councils must intervene and provide education under their section 19 Education Act duty if no suitable educational provision has been made, for example by their school, for a child who is missing education through exclusion, illness or otherwise. The duty arises after a child has missed 15 days of education either consecutively or cumulatively. This means that once the Council was alerted to Y's absence it needed to consider its legal duties and take action where appropriate.
62. The Council needed to consider whether Y was receiving a suitable education, and whether this education was “reasonably available and accessible” to her.
63. In April 2022, the Council was informed that Y had not been attending School B. From the evidence I have seen the Council wanted to obtain the views of an EP and made an early referral. However, the EP reported that Y had refused to engage with them. The Council then contacted three different schools in its attempts to secure a managed move and education for Y. The Council considered that education was available and accessible to Y at School C based on the information it had at the time. Ms X declined the placement.
64. There is no evidence to show how the Council reached its decision to offer Y a place at School C, but on balance there was no evidence to suggest that Y could not attend a mainstream school setting. The Council was not aware of Y’s special educational needs, and she did not have an EHC Plan at the time. Furthermore, a place was available for Y at School B and Y did return in September 2022 for one term. Therefore, School B was also deemed suitable and accessible.
65. The section 19 duty does not apply simply because a parent refuses to send a child to the educational provision allocated to them. The Council was entitled to decide Y could access education at School B and C and I cannot challenge its professional judgement. Therefore, whilst the Council agreed to a tuition package for Y it did not have a section 19 duty to do so.
66. We expect a council to clearly document its decision that an education is reasonably accessible. The Council’s failure to keep a record of its decision is fault. But this fault did not cause injustice to Ms X or Y as Ms X declined the placement.
67. The Council continued to support Y’s access to education and agreed a home tuition package.
68. I acknowledge that Y only received about four hours tuition per week from June 2022 and throughout the period under investigation. However, this does not mean the Council is at fault. It is clear the Council made consistent efforts to find ways to engage Y in education and provided a range of options for her. But Ms X and Y declined to take up these offers, including an alternative maths tutor and drama school. The Council agreed to provide tuition over the summer holidays. This shows, the Council had adopted a strategic and planned approach to reintegrate Y into mainstream education. It is noted that Y did not engage well with the science tutor over the summer holidays, and this was put on hold.
69. This being so, I do not consider I can reasonably hold the Council responsible for the lack of educational provision as it made efforts to arrange tuition for Y. I should stress that this is not intended to be read as a criticism of either Ms X or of Y herself. I understand Y’s circumstances make it difficult for her to engage in education and the extent of her special educational needs were not known to the Council at the time.
70. The Council’s duty is to make suitable arrangements, and I cannot say it has failed to discharge this duty.

Personal budget

71. Ms X said she did not agree to a personal budget but was left without a choice as the Council had failed to arrange suitable provision. The evidence shows Ms X requested a personal budget in November and December 2022 stating that Y needed a personal budget to support her educational needs and integration back into school. Ms X said she disagreed with the Council’s decision that Y could attend a mainstream school.
72. While I appreciate Ms X felt no other options were available to her, she clearly requested a personal budget and EOTAS and provided the Council with a breakdown of providers and costs for the provision. I find no fault by the Council.

Carers assessment

73. Ms X said the Council had failed to complete a parent/carer assessment. The Council did not respond to this part of Ms X’s complaint and its failure to do so is fault. I cannot predetermine the Council’s consideration of Ms X’s request, but the fault has caused Ms X uncertainty.

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Agreed action

74. Within one month of my final decision the Council will:
    • 1. apologise to Ms X for the faults identified in this statement;
      2. pay Ms X £200 for the delay in issuing Y’s final EHC Plan;
      3. to remedy the injustice caused to Ms X by the Council’s failure to consider Ms X’s request for a carers assessment, the Council will consider Ms X’s request and inform her of its decision in writing; and
      4. review its record keeping procedures to ensure officers keep a clear record of their decisions about whether education provision is accessible to a child out of school and whether it owes a duty under Section 19 of the Education Act 1996 to make alternative education provision.
75. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. I have found fault by the Council causing an injustice to Ms X. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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