Summary: The Council was at fault for failing to provide education to Ms X’s child Y when Y could not go to school for health reasons. The Council also failed to deliver the provision in Y’s EHC plan and failed to issue a final plan following the annual review. The Council took too long to decide Y needed education otherwise than at school and delayed dealing with Ms X’s complaints. As a result, Y has been without education for 28 months and both Ms X and Y have experienced avoidable distress. The Council has agreed to apologise, provide Y with education, make payments to Ms X and Y, and act to improve its services.

The complaint

1. Ms X complained that her child, Y, has been out of education since January 2022. In that time, she says the Council:
1. Failed to provide any alternative education
2. Failed to provide the special education in Y’s EHC Plan
3. Failed to issue an amended Final EHC Plan after a review in March 2023
4. Took too long to agree that Y needed Education Otherwise than at School (EOTAS) and then failed to put this in place
5. Delayed responding to her complaints
2. As a result, Ms X says Y has had no education for over two years and she and Y have experienced avoidable distress.

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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. 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)
5. 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)

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How I considered this complaint

6. I considered the complaint and the information Ms X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. I referred to the Ombudsman's Guidance on Remedies, a copy of which can be found on our website.
9. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision
10. 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 found

Education Health and Care plans

11. A child or young person with special educational needs (SEN) 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.
12. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
13. 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. 
14. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. If the council decides to amend the EHC Plan, it must send its proposed amendments to the parent or young person and give them 15 days to comment. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.195) 
16. The Council must must issue the amended EHC Plan as quickly as possible and within eight weeks of its decision to amend the plan. (Section 22(3) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.196) 

Personal budgets

17. 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.
18. 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.
19. 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.
20. 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.

Alternative provision

21. 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.
22. 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)

What happened

23. Y has SEN and EHC plan. Y’s SEN includes chronic anxiety. Y is on the waiting list for an assessment for autism. Y stopped going to school in January 2022.
24. Ms X complained to the Council about Y’s EHC plan delay and being out of school in March, July, and November 2022. The Council did not deal with Ms X’s complaints through its complaint process.
25. Ms X asked the Council for an emergency review of Y’s EHC plan. This took place in March 2023. The review agreed that Y’s current school was not suitable and could not meet Y’s needs. The Council agreed to amend Y’s EHC plan.
26. The Council issued an amended draft EHC plan in June.
27. In early August, Y’s mental health worker wrote to the Council with an update. This letter said:
• Y had accessed six weeks of education in January 2023 through its Medical Needs and Hospital Education Service (MNHES). This began as one to one, with which Y engaged well. However, Y was not able to engage once the provision included work with other students in a very small group.
• Y had chronic anxiety which contributed to not feeling able to go to school
• Y was not currently well enough to engage in the therapy needed to address this
• Y was currently not leaving the home due to anxiety and phobias
• Y would not be able to cope with mainstream school or a setting with too many variables or demands
28. In August, Ms X responded to a second amended draft EHC plan. She said the current provision identified did not meet Y’s needs. She asked for a personal budget to meet Y’s needs at home.
29. In late August, the Council considered whether Y needed EOTAS. It decided the Council should first consult with more education settings outside its area and independent special schools.
30. Ms X complained to the Council in September. She said:
• No one answered her calls, responded to voicemails, or replied to emails
• She received no response to her comments on the draft amended plan and request for a personal budget in August
• She had sent another message asking for an update on the Council’s consultations with other providers but had no response
• It was ridiculous that this all related to a review six months earlier
• Y had been out of education for over 20 months
31. In October, the Council once again considered whether Y needed EOTAS. This time, it decided the Council should first consider a “blended model” involving an online education provider and MNHES. It suggested Y’s school should do an annual review.
32. The Council responded to Ms X’s complaint in early November. It said:
• It was aware of the issues people faced trying to get through on the phone. It received over 3000 calls a month. It apologised and upheld this part of the complaint.
• It apologised for the delay and lack of communication around the amended EHC plan. It said this was because lack of staff and a reorganisation of locality areas resulted in delays and communication breakdown. It upheld this part of the complaint.
• It was unacceptable that no one told Ms X the outcome of the recent EOTAS consideration. An officer would contact Ms X within the next few days to discuss it. It set out the proposed “blended model” and suggested annual review.
• It was unacceptable that the review over six months earlier had not concluded. An officer would contact Ms X within the next few days to arrange to discuss amending the plan and issuing a Final EHC plan so Ms X had her review rights.
• Although Y had been out of school since 2022, the school named in the EHC plan had a duty to provide education while the Council looked for an alternative.
33. Ms X asked the Council to consider her complaint at stage two. In her request she said:
• Y had already attended MNHES and this had not worked.
• Why would the school hold another annual review when the one in March had not yet been finalised?
• The school should no longer be named in Y’s EHC plan because it couldn’t meet her needs and had not been involved or provided any education or support in 22 months.
34. In January, the Council again considered whether Y needed EOTAS after MNHES confirmed it was not a viable option for Y. This time, the Council decided it had not consulted enough settings to decide EOTAS was necessary.
35. The Council considered EOTAS again in February. This time it agreed Y needed EOTAS.
36. The Council responded to Ms X’s stage two complaint a few days later. It said:
• It apologised for the delay responding to her complaint
• It had a duty to have a school named for Y to ensure “safe and well” checks took place
• While the school was named, it should be providing work for Y
• It remained the duty of the school to have weekly check-ins and provide homework
• It had tried to engage the school without success
• It partially upheld the complaint because although it was right to have kept the school named in the EHC plan, the school had not provided check-ins or homework for Y.

My findings

37. Ms X complained about events since January 2022. This part of the complaint is late. However, Ms X provided evidence of her attempts to complain sooner, which the Council did not treat as complaints. Taken together with her own difficulties, I consider this to be a good reason Ms X did not make her complaint earlier. I have therefore exercised discretion to consider matters from March 2022, the date of Ms X’s first complaint.
38. I set out my findings on the complaint in the order they appear in paragraph one.

Alternative provision

39. Aside from a few weeks in January 2023, Y has had no education in the period under investigation. The Council knew Y was not in school and accepted that Y could not attend the school named in the EHC plan. It therefore had a duty to arrange alternative provision for Y. Its failure to do so was fault.
40. The Council was wrong to tell Ms X that the school should provide homework for Y. This is not the same as or a replacement for a proper education and does not meet the Council’s section 19 duty.

Special education provision

41. The Council has a duty to secure the provision detailed in an EHC plan. Y has had none of the provision in the plan in the period under investigation. The Council knew this. Its failure to secure Y’s special education provision was fault.

EHC delay

42. The annual review meeting was in March 2023. The Council should have issued a final amended plan within 12 weeks. It did not issue a draft amended plan until 12 weeks after the review. At the time of writing, there remains no Final EHC plan. This delay of 12 months is fault.

EOTAS

43. Ms X asked for a personal budget to deliver Y’s provision through EOTAS in August 2023. There is no evidence the Council ever responded to Ms X’s request for a personal budget. This was fault.
44. The Council considered whether Y needed EOTAS four times between August 2023 and February 2024. While it is appropriate that the Council explore alternative options for Y’s education, it should not have taken this long. The delay was fault. When it suggested MHNES in October, it already had the letter from Y’s mental health worker explaining why this was inappropriate. It should have consulted all the available providers the first time around.
45. On balance, if it had acted properly the Council would have agreed EOTAS in October 2023.
46. Although it agreed to provide EOTAS in February 2024, the Council did not actually put any provision in place for Y until July. This delay was further fault.

Complaint handling

47. The Council’s failure to respond to any of Ms X’s complaints in 2022 was fault.
48. It took the Council 28 working days to respond to Ms X’s stage one complaint. This is 8 days longer than the 20 working days in its complaint policy. This delay was fault.
49. Despite upholding her complaint, the Council did not offer any remedy for the injustice or identify any service improvements. This was fault.
50. It took the Council 70 working days to respond to Ms X’s stage two complaint. Despite allowing 65 days to respond to stage two complaints, more than double the timescale most other councils use in their policies, the Council still failed to meet it. The delay was fault.

Injustice

51. Where we find fault, we then consider whether that fault has caused injustice.
52. There is significant injustice to Ms X:
• She has experienced the avoidable distress and frustration of chasing the Council for responses to calls and emails.
• She has not received a Final EHC plan which she can appeal.
• She has experienced significant and avoidable distress, worry, and uncertainty about Y’s education over an extended time.
53. There is also significant injustice to Y. Y has been out of education since January 2022. In the period covered by my investigation, Y has missed out on 7 terms of education. The impact on Y’s education, development, and prospects is incalculable. There is no formula I can use. Any recommendation I make for a financial remedy can only be a symbolic payment in recognition of this impact. It is not ‘compensation’.

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Agreed action

54. To remedy the injustice to Ms X and Y from the faults I have identified, the Council has agreed to:
• Apologise to Ms X in line with our guidance on Making an effective apology
• Apologise to Y in line with our guidance on Making an effective apology
• Make immediate provision for Y’s education
• Issue a Final EHC plan
• Pay Ms X £1000 in recognition of her significant and avoidable distress over an extended period
• Pay Y £16,800. This is £2,400 for each term of missed education.
55. The Council should take this action within four weeks of my final decision.
56. The Council should also take the following action to improve its services:
• Provide training or guidance to relevant staff on the Council’s duty to make alternative provision for children who cannot go to school for health reasons.
• Remind relevant staff that the Council has a duty to secure the provision in an EHC plan and must act if it is aware a school or other provider is not making this provision.
• Ensure requests to the panel approving EOTAS include sufficient detail about the consultations already made and provision considered to enable the panel to make prompt and informed decisions about a child’s needs.
• Identify and implement measures to ensure the Council issues a Final amended EHC plan following annual review, giving the parent or young person the right to appeal to the Tribunal.
• Remind officers dealing with complaints that when the Council has got something wrong, it should consider the impact on the complainant and offer an appropriate remedy.
57. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.

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Final decision

58. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman