Summary: Miss X complained about how the Council provided and reviewed her son, Y’s, special education. There was fault in how the Council failed to ensure Y received all the education set out in his Education Health and Care plan, and delayed completing both a review of Y’s plan and deciding on Miss X’s request for direct payments. This caused Y to miss out on education and caused both Miss X and Y avoidable distress. The Council agree to make its decisions about the Y’s plan and direct payments, review Y’s current tuition, apologise to Miss X and Y, and pay them a financial remedy. It also agreed to issue reminders to its staff.

The complaint

1. Miss X complains the Council has failed to provide all the special education provision set out in her son, Y’s, Education Health and Care (EHC) plan since September 2023. She says the Council has provided less than one third of the hours Y should receive. She also says the Council has failed to amend Y’s EHC plan following a review in November 2023, or decide on her request for a personal budget.
2. As a result, Miss X says:
• Y has gone without some of the education he should have received;
• she has had to pay for extra tuition, which she can no longer afford;
• both she and Y have been caused significant frustration, upset and uncertainty; and
• Y has missed an opportunity to sit exams with children of the same age.
3. She wants the Council to:
• arrange all the education in Y’s EHC plan;
• make up for the education he has missed;
• make a decision about the annual review and her request for a personal budget; and
• properly recognise the impact on both her and Y.

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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 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 cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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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How I considered this complaint

8. I considered:
• the information Miss X provided;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments 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 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.
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. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
15. 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. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
16. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
17. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
18. The council should then issue a final EHC plan within eight weeks of the amendment notice.
19. 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.
20. 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.
21. 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.
22. 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.

Background

23. Miss X’s son, Y, has special educational needs and has an EHC plan from the Council.
24. Following a review of Y’s EHC plan in mid-July 2022, the Council issued an amended final EHC plan for him in late 2022. That plan said Y would receive education outside a school setting, including:
• ten hours of individually tailored one-to-one tuition per week, increasing as he can manage; and
• three hours a week therapeutic physical activity with adult support.
25. The plan also said any educational settings should monitor the outcomes, provision and support needs on a regular basis, with the next formal review of the plan to be completed by mid-July 2023.
26. The Council arranged for Y’s EHC plan to be overseen and provided by a School E. Y was not expected to attend School E, but the Council put the School in control of arranging and paying for Y’s home tuition.

Events from September 2023

27. From the start of the school year in September 2023, Miss X said School E only provided one and a half hours of tuition for Y which covered maths and English. It also paid for Y to receive one hour a week training at a gym.
28. Miss X said she asked the School to arrange other tuition for Y, including a computing course. However, the School did not do this. Instead, Miss X paid for online tuition for Y for seven sessions, but she could not afford to continue. Miss X said she would also have liked Y to study physics, but the School would not make arrangements for this and did not communicate with her well.
29. The Council said Y’s tuition was led by Miss X and Y, since they both wanted control over Y’s studies, as this better met his needs.
30. Miss X told the Council in late 2023 that Y was not receiving all the support in his EHC plan. She also said she did not want School E to have control over Y’s EHC plan and, instead, she wanted a personal budget and direct payments.
31. The Council tried, over several months, to get School E to send it details of the tuition it had arranged for Y. However, School E did not provide this to the Council and, as a result, the Council deferred making a decision about Miss X’s request for a personal budget.
32. Miss X complained again to the Council in January 2024 about both the lack of provision and delays following the annual review.
33. In February 2024, the Council offered to arrange a meeting with Miss X and the School to discuss Y’s provision. Miss X told the Council she no longer trusted School E and did not consider the meeting would help. Instead, she wanted the Council to end School E’s involvement and ensure all the education set out in Y’s EHC plan was provided.
34. Miss X the Council to escalate her complaint to stage two of its complaints process. However, the Council refused to do this as it believed a stage two investigation would not be able to ensure Y received all the tuition Miss X wanted.

Y’s education in 2023

35. The Council had a duty to secure all the provision in Y’s EHC plan, including the full hours of tuition and supported physical activity. Although the Council asked School E to do this, the duty to secure the provision was the Council’s and it cannot delegate its responsibility for this.
36. Throughout the 2023-24 school year, Y should have received 390 hours of tuition and 117 hours of supported physical activity; a total of 507 hours.
37. The evidence shows Y received around 97.5 hours of tuition and 39 hours or supported physical activity through School E, and a further seven hours of tuition arranged by Miss X. This is a total of 143.5 hours, which left a shortfall of 363.5 hours.
38. I am not satisfied this shortfall in hours was due to Y being unable to take part in the full hours in his EHC plan or to Miss X or Y not wanting Y to take part in education. There is evidence to show Y took part in all the education arranged for him, including that arranged by Miss X herself, and that Miss X was trying to seek other educational opportunities which would meet his needs.
39. On the balance of probabilities, I am satisfied the shortfall was due to fault on the part of the Council, and School E acting on its behalf.
40. The Council provided no evidence the School kept the number of hours of tuition Y received under review or took steps to ensure Y was receiving the full provision. It also failed to provide this information to the Council for several months. There is also no evidence School E engaged with Miss X to increase Y’s tuition, or offered alternatives if it considered any suggestions Miss X made were not suitable.
41. We do not expect councils to keep a watching brief on EHC plans. However, we do expect councils to act where they have reason to believe something is wrong. The Council first knew about Miss X’s concerns in late 2023. While the Council did ask School E for information about Y’s tuition, the School did not send it the information it needed for several months. There is no evidence the Council considered taking other action to resolve the problem when the School did not send it the information it had asked for.
42. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. When deciding on a suitable amount I have taken into account:
• the amount of education in Y’s EHC plan and that this was less than full-time education;
• that Y received some of the hours he should have;
• Y’s age and that he missed education in a year other young people his age would have taken exams; and
• the education Miss X arranged.
43. Based on this, I am satisfied a remedy of £1000 per term would be a suitable remedy to recognise the education Y missed in the 2023 – 2024 school year.

Delays following 2023 annual review

44. There were delays in reviewing Y’s EHC plan in 2023. Based on the date of the 2022 review, the Council should have completed the 2023 by mid-July. However, the Council did not arrange the review meeting until early November 2023. This delay was fault. I cannot say whether holding the review earlier would have led to Y receiving more or different education. However, the remaining uncertainty about this is an injustice to both Y and Miss X.
45. After the Council told Miss X it planned to amend Y’s EHC plan in late November 2023, it should have issued a final amended EHC plan within eight weeks; by mid-January 2024. However, it did not send her a draft of the amended plan until July 2024 and, as of August 2024, the Council had still not issued the final plan. This delayed Miss X’s appeal rights and caused her avoidable frustration and upset.
46. Miss X asked the Council to prepare a personal budget and decide whether to pay this through direct payments in November 2023. This was at a time when the Council was preparing a draft EHC plan, so the Council had a duty to prepare a personal budget. The delay in issuing the draft and final EHC plans also led to a delay in preparing a personal budget. The delay in issuing a final EHC plan also caused a delay in the Council deciding whether to make direct payments to Miss X. This added to the distress Miss X experienced.

Complaints handling

47. The Council responded to Miss X’s January 2024 complaint in line with the timescales set out in its complaints procedure.
48. However, in my view the Council wrongly decided at stage two that its complaints process could not achieve the outcome Miss X wanted. Miss X was not seeking to change the content of Y’s EHC plan, she was complaining that the Council had not secured that provision and why she was not happy with the action proposed in the Council’s stage one response. The Council could have considered further whether the action it proposed was suitable or whether it should take other action to ensure Y received all the education he should have done under his EHC plan.
49. Although that was fault, I do not consider it caused Miss X or Y further injustice. Miss X complained promptly to the Ombudsman after the Council refused her request to proceed to stage two of the Council’s process.

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Agreed action

50. Within one month of my final decision the Council will:
• issue the final amended EHC plan, including a personal budget, and make its decision about whether to pay this through direct payments;
• review Y’s ongoing tuition to ensure the full hours are in place for the current school year;
• apologise to Miss X and Y for the education Y missed in 2023-24 and for the avoidable distress and upset caused by this and the delays to the annual review;
• pay Miss X £3000 to recognise the education Y missed in the 2023-24 school year. This is intended for Y’s future educational benefit;
• pay Miss X £400 to recognise the avoidable distress, frustration and uncertainty caused by the failure to provide all the education in Y’s EHC plan and the delays to the 2023 annual review; and
• pay Y £250 to recognise the avoidable distress and uncertainty caused by the delays to the annual review.
51. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
52. Within three months of my final decision the Council will clarify to staff responding to SEND complaints the correct interpretation of the Council’s complaints procedure to ensure it does not refuse to investigate complaints at stage two which are about issues further consideration by the Council might resolve.
53. I would normally also have made recommendations about how the Council ensures provision in EHC plans is being made and timeliness following annual reviews. However, we recently made similar service improvement recommendations and these were after the events I have investigated. Therefore, I have not repeated those recommendations.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have completed my investigation as I am satisfied the action the Council has agreed to take. There was fault in how the Council failed to ensure Y received all the education set out in his Education Health and Care plan, and delayed completing both a review of Y’s EHC plan and deciding on Miss X’s request for direct payments. This caused Y to miss out on education and caused both Miss X and Y avoidable distress. The Council agreed to make its decisions about the EHC plan and direct payments, review Y’s current tuition, apologise to Miss X and Y, and pay them a financial remedy. It also agreed to issue reminders to its staff.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman