Summary: Mrs F complained about the Council’s handling of her son’s education since late 2021. We found the Council at fault for failing to provide all the provision set out in his Education, Health, and Care Plan since January 2024. The Council should apologise and make payment to acknowledge the injustice its faults caused Mrs F and her son. We could not investigate Mrs F’s concerns about her son’s education and her needs assessment requests from before December 2023 as the Council’s decisions carried appeal rights to the SEND Tribunal.

The complaint

1. The complainant, Mrs F, complained about the Council’s handling of her son’s (X) education. She said it failed to:
• recognise her son’s special educational needs, assess him, and provide an appropriate education between late 2021 to late 2023; and
• the Council had failed to implement her son’s Education Other Than At School (EOTAS) package since the SEND Tribunal Order in late 2023.
2. Mrs F said, as a result, X experienced distress and had a loss of education. Mrs F also said she and her family experienced distress and had time and trouble to support X and bring their concerns to the Council’s attention.

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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. 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)
5. 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.
6. 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)
7. 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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What I have and have not investigated

8. I have considered Mrs F’s complaint about the Council’s failure to provide the provision set out in X’s Education, Health, and Care (EHC) plan following the SEND Tribunal Order in December 2023 until the end of the academic year.
9. I have not investigated Mrs F’s concerns about the Council’s handling of Mrs F’s request for a special educational needs assessment of X, X’s school placement, or provision in X’s EHC plan prior to December 2023. This is because:
• some parts of Mrs F complaint are late as these included matters which occurred more than 12 months before they were brought to our attention; and
• Mrs F’s concerns relate to decisions made by the Council which were appealable to the SEND Tribunal. 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). The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

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How I considered this complaint

10. As part of my investigation, I have:
• considered Mrs F’s complaint and the Council’s responses;
• discussed the complaint with Mrs F and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• had regard to the law and guidance relevant to the complaint.
11. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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

13. 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.
14. 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.
15. 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.
• 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.
• 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.

Personal Budgets

16. 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.
17. 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.
18. 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.
19. 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.
20. The council’s (and health commissioning body’s where relevant) 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.

Appeals

21. There is a right of appeal to the SEND Tribunal. These includes:
• 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; and
• an amendment to these elements of an EHC Plan.

What happened

22. Mrs F asked the Council to complete an EHC needs assessment for her son (X) in late 2021. She said he had been diagnosed with health conditions and required support with his special educational needs.
23. The Council considered Mrs F’s request, but decided X did not require a needs assessment.
24. Mrs F appealed the Council’s decision to refuse X’s EHC needs assessment to the SEND Tribunal. She also complained to the Council about its handling of her request. In response the Council reconsidered its view, it decided in May 2022 to complete a needs assessment for X and informed Mrs F.
25. The Council issued X’s first EHC Plan in October 2022, a further version was issued in January 2023.
26. Mrs F was not happy with the provision in X EHC plan and appealed to the SEND Tribunal. She also complained to the Council in October 2023. She said it had failed to:
• listen to X’s views;
• provide X with an appropriate education;
• rearrange a mediation meeting in a timely manner and cancelled a meeting with short notice without a reasonable explanation; and
• consult with other schools after two schools had told the Council they could not meet X’s needs, caused delays in the process, and did not challenge a school on its reasons for not being able to meet X’s needs.
27. Mrs F told the Council she wanted X to receive Education Other Than At School (EOTAS) as there was not an appropriate school available. She asked the SEND Tribunal to also consider this matter.
28. In December 2023 the SEND Tribunal issued its order. This included for the Council to amend X’s EHC plan to include provision X should receive and directed the Council to provide EOTAS without naming a school placement. It also said the Council should arrange a speech and language assessment for X and amend the plan according to the advice it received.
29. The Council issued X’s amended final EHC plan in January 2024. This included provision such as:
• tuition in key subject areas in person and online by adults trained and experienced in working with children or young people with X’s needs. Online tuition could be in the home, but in person tuition had to be outside X’s home;
• a forest school and swimming weekly; and
• a laptop with software and some hardware, subscriptions to online programmes as advised by tutors, sensory equipment, and a personal budget for stationary equipment.
30. Mrs F complained to the Council again in March 2024. She said it had failed to put in place all the provision in X’s EHC plan including some of the tuition, the personal budget, and the laptop it had provided did not have the software and programmes needed for X. She also said X had not been assessed by a speech and language therapist as required. She explained the tuition company the Council had commissioned had no understanding of X’s needs and did not follow the EHC plan.
31. The Council arranged a meeting with Mrs F and some professionals. It agreed not all X’s EHC plan provision was in place and some actions for the Council was agreed.
32. One educational provider working with X ceased operating in the end of March 2024. It had informed the Council several weeks in advance.
33. In response to Ms F’s complaint, the Council accepted it had failed to put in place all of X’s EHC plan provision, and no speech and language assessment had taken place. It apologised for the delay and acknowledged this had caused the family distress. It suggested it would consider a remedy for its delays once all X’s provision was in place.
34. In April 2024 a further meeting between the Council and Mrs F took place. A personal budget had been agreed for software and programmes for X’s laptop, sensory equipment and swimming.
35. In May 2024 the Council said the personal budget for X was in place. It had also arranged for another tuition provider for X. However, following issues with the provider regarding tutor availability, understanding of X’s needs, and locations for X’s tuition, Mrs F did not agree for this to start.
36. By the end of the 2023/24 academic year only some of X’s EHC plan provision was being delivered. It remained unclear how some of the missing provision would be delivered for the start of the 2024/25 academic year and X’s speech and language assessment remains outstanding.
37. Mrs F asked the Ombudsman to consider her complaint. She also said she had shared an occupational therapist (OT) report with the Council in February 2024, which recommended support X should receive. The Council agreed in May 2024 to include some provision recommended by the OT in X’s EHC plan.
38. In response to our enquiries the Council explained the steps it had taken to put in place X’s EHC plan provision and the challenges it had faced. It acknowledged it had failed to put some of his provision in place, caused delays, and no speech and language assessment had taken place. It proposed a remedy of £2,100 to acknowledge the impact its faults had on X and Mrs F’s family.

Analysis and findings

EHC plan provision

39. The evidence shows the Council started making referrals for X’s special educational needs provision after the Tribunal Order in December 2023, and it issued X’s EHC plan in early January 2024.
40. The Council has accepted it was at fault for failing to provide all the provision set out in X’s EHC plan in a timely manner, or at all.
41. I agree with the Council. It was at fault for failing to put X’s EHC plan provision in place without delay in January 2024, which is when I would expect all his provision to have started.
42. The evidence shows some provision was provided. However, key parts of X’s provision were not consistently available to him, or not available as set out in his EHC plan which also included his personal budget. Nor, has he been assessed by a speech and language therapist which may set out further special educational needs provision he should have access to. This was fault.

Remedy

43. While I accept some events were outside the Council’s control and it met with Mrs F to resolve some issues, it remained responsible for ensuring X receive the provision set out in his EHC plan. It’s failure to do so was fault.
44. I am satisfied this caused X distress, a loss of educational provision, and a loss of opportunity to receive further provision following the assessment. I am also satisfied this caused Mrs F and her family distress and she had time and trouble to pursue her concerns with the Council in writing or through meetings.
45. I have considered the remedy the Council proposed. While this appears to be a genuine attempt to acknowledge the injustice its faults caused, I am not satisfied it goes far enough to do so.
46. I have therefore made my own recommendations, in line with the Ombudsman’s Guidance on Remedies, for the injustice the Council’s faults caused. This includes service improvement recommendations to ensure the Council actions outstanding provision and assessments, and to ensure such delays or failures do not reoccur.

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Agreed action

47. To remedy the injustice the Council caused to Mrs F and X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs F and X, and pay her £300 to acknowledge the distress and uncertainty the Council’s faults caused her and her family;
2. pay Mrs F £2,600, to use as she sees fit for the benefit of X, to acknowledge the loss of education X had from January 2024 to July 2024 as a result of the Council’s failure to consistently provide the provision in his Education, Health, and Care plan and his personal budget;
3. pay Mrs F £500, to use as she sees fit for the benefit of X, to acknowledge the lost opportunity X had to have his needs assessed by a speech and language therapist between January 2024 to July 2024; and
4. complete X’s speech and language assessment before the start of the 2024/25 academic year. If this is not possible, inform the Ombudsman and Mrs F the timescale for when the speech and language assessment will be completed, then pay Mrs F £100 per month from September 2024 until X’s assessment has taken place.

In total the Council should pay Mrs F £3,700.

48. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. remind its SEND staff of the Council’s duty to provide all the special educational needs provision set out in a child, or young persons, Education, Health, and Care plans without delay and ensure the provision identified meets assessed individual needs; and
5. review how the Council’s commissions speech and language therapist referrals to ensure assessments are completed without delay following a Tribunal Order or its agreement to do so.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. There was fault which caused Mrs F and X an injustice. The Council has agreed with my recommendations, it is on this basis I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman