Summary: Ms X complained that the Council failed to issue a final amended Education, Health and Care (EHC) Plan after her daughter’s emergency review, and it failed to provide education in accordance with her EHC Plan. We find some fault, causing a loss of special educational provision and avoidable distress. The Council has accepted our recommended ways to remedy this by making a symbolic payment for loss of education, an apology and service improvements. Therefore, we are closing the complaint.

The complaint

1. Ms X complained that the Council failed to issue a final amended Education, Health and Care (EHC) Plan after her daughter’s (Y’s) annual review in October 2023, and it failed to provide education in accordance with her EHC Plan. This caused a loss of special educational provision to Y and avoidable distress and time and trouble for Ms X.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal… such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
5. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
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).
8. 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

9. I investigated matters between April 2023 and July 2024 when the Council issued a notice stating it intended to cease Y’s EHC Plan. At this point, Ms X had the right of appeal to the SEND Tribunal. I consider it is reasonable to expect her to use that remedy.

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How I considered this complaint

10. I considered Ms X’s written evidence and spoke to her on the telephone. I made enquiries of the Council and have considered its evidence.

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What I found

Special educational needs

11. Children with special educational needs may have an EHC Plan, setting out their needs and the provision to meet them. Section I names the school and/or type of provision required. Section J sets out details of the personal budget required to meet the special educational provision.
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 2014). The courts have said the duty to arrange this provision is owed personally to the child and is non-delegable.  

Annual reviews

13. 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.

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.  

15. 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. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Reassessment of EHC plans

16. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child, or young person’s, needs have changed significantly.

17. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal. A reassessment will follow the same process as for a first special educational needs assessment including obtaining professional advice from an Educational Psychologist.

Personal budgets

18. A personal budget is an amount of money identified by a council to deliver provision set out in an EHC Plan where the parent or young person is involved in securing that provision. Councils must provide information that sets out a description of the services across education, health and social care that lends itself to the use of personal budgets.
19. Councils should prepare a budget when requested. Parents/carers can ask for a personal budget when an EHC assessment confirms that a council will prepare an EHC plan or during a statutory review.
20. If a council refuses a personal budget, it must explain its reasons in writing to the parents/carers and inform them of their right to ask for a review of the decision.

The Council’s policy and practice

21. The Council will explore arrangements for children and young people with special educational needs who cannot attend school or post 16 educational establishments. These arrangements are usually in the form of tuition or access to alternative providers.
22. The Council says that it has two maintained special schools with sixth forms. There are also two post 16 colleges and a college which provides internships for young people who are ready to gain employment skills.

Key facts

23. Y has had an EHC Plan since 2021. She is described as a young person with complex needs relating to social, emotional and mental health in line with an autistic spectrum condition (ASC).
24. Y attended a local specialist school (School B) and completed her General Certificates of Secondary Education (GCSEs). Ms X says Y received a lot of support at School B. In June 2022, there was an annual review, and it was agreed to look at post 16 colleges for September 2022. Y wanted to pursue her studies. But she could not stay at School B because it did not have a sixth form.
25. Y started at a local mainstream college, College C. Ms X says that there are no specialist colleges in the area. Ms X says that there was less support for Y at College C.
26. In April 2023, there was an annual review. The minutes of the review meeting prepared by College C noted that Y had not achieved all the outcomes set out in her EHC Plan. It was noted that Y had had a recent diagnosis of Attention Deficient Hyperactivity Disorder (ADHD).
27. College C recommended that the Council should consider changing the EHC Plan in accordance with the points made at the review and it said the Council should consider carrying out a reassessment. The Council says that there was no recommendation for a reassessment.
28. In October 2023, because of a family bereavement, Y was very upset and was unable to attend College C as a result. Ms X asked for an emergency review because Y was not attending College C, and her mental health was deteriorating. At the early review, College C made the same points, recommending the Council considered undertaking a reassessment of Y’s special educational needs.
29. Ms X says that, at this point, the Council accepted that College C was not a suitable placement.
30. The Council agreed to make amendments to Y’s EHC Plan and in mid-November 2023 it wrote to Ms X explaining this. Because the Council agreed to amend the EHC Plan, Ms X had no right of appeal to the SEND Tribunal.
31. In December 2023, Ms X asked for a personal budget because she considered she was best suited “to support [Y] educationally and for her mental health until she can return to college”. She explained that she had devised a programme amounting to approximately £250 per month until Y could return to College C. Ms X provided a list of activities for Y which she had planned.
32. The Council’s Panel considered this request. The Panel is made up of senior managers across children services, education and commissioning. The Panel rejected the request for a personal budget because it considered Ms X was asking for social care provision. The Panel recommended a referral to social care for a parent/carer assessment and for discussions to be held to consider a realistic package for education between January to July 2024.

Events of 2024

33. In January 2024, Y’s draft EHC Plan was issued and was sent to another college for consultation at Ms X’s request. Y’s draft EHC Plan proposed that teachers, tutor or learning assistants would be responsible for meeting Y’s special educational needs.
34. The Council says that Y decided, after a visit to the college, that the demands would be too much for her and the Council says that Y said that she was not interested in formal education.
35. Ms X says that the travel to the college would have been too onerous, and Y did not say she was disinterested in formal education. Ms X asked the Council about other options for Y and asked for a tutor for English and Mathematics. She says she was told that there were no other options for Y.
36. In February 2024, Ms X asked for an Education Otherwise Than At School (EOTAS) package. She wanted this to be the named educational placement in Y’s draft EHC Plan. Ms X says that she was told this was not possible and would have to be considered by the Panel. Ms X provided medical evidence to support her request that Y was unable to attend College C because of her medical needs.
37. The Panel considered Ms X’s EOTAS package request. It refused this because again the Council considered that Ms X was asking for a personal budget for social activities. The Council says that there was no request for tuition in English and Mathematics either at this point or before. Ms X says that she verbally asked the case officer.
38. The Council told Ms X that it intended to cease Y’s EHC Plan.
39. Ms X made a formal complaint to the Council. In April 2024, the Council sent its stage one response. The Council said that Y had stated that she did not want to be in formal education and had expressed a wish to attend an adult centre to build up her confidence. The Council said all the information had been passed to Adult Services for an assessment.
40. Ms X asked for her complaint to be escalated to stage two. At the end of May, the Council sent its final response. The Council said that Ms X had not requested any education in her EOTAS package. The Council did not uphold any of Ms X’s complaints. It explained that Y was being supported by an allocated social worker who would work with her to assess her needs and provide suitable activities. The Council said it intended to cease Y’s EHC Plan because the Council “considered that Y is still receiving the support for suitable activities and at the moment does not have a need for an EHCP”.
41. As a result of the social care assessment, Y started to attend a local social centre two days per week. In July 2024, the Council formally gave Ms X notice that it intended to cease Y’s EHC Plan. At this point, Ms X had a right of appeal to the SEND Tribunal. I am satisfied that it was reasonable to expect Ms X to use this alternative remedy.

Findings

42. These are the areas where I find fault. They are as follows.

The recommendation for a reassessment

43. At the annual review of April and the emergency review of October 2023, College C made a clear recommendation that the Council should consider a reassessment of Y’s special educational needs. I cannot see that the Council considered this recommendation. And, if the Council had considered that a reassessment was unnecessary (on balance this was likely to have been its decision), it should have formally told Ms X this, whereby she would have had a right of appeal to the SEND Tribunal.
44. I find the Council at fault for these omissions and there has been a lost opportunity for Ms X to have appealed against any decision to refuse a reassessment.

The failure to issue a final EHC Plan after the draft of October 2023

45. The Council says that it was unnecessary to issue a final EHC Plan after it agreed to amend the draft EHC Plan in October 2023. The Council had twelve weeks to issue a final amended EHC Plan, so approximately it should have issued a final amended EHC Plan by the end of January 2024.
46. The Council says it was unnecessary to issue a final EHC Plan because it had decided to cease the Plan. But the Council did not decide this formally, and tell Ms X, until July 2024.
47. So, I find the Council at fault for not issuing a final amended EHC Plan on time, and for not formally telling Ms X sooner that it intended to cease the EHC Plan. Either option would have provided Ms X with the right of appeal to the SEND Tribunal at the end of January 2024.

The failure to meet special educational needs

48. The Council had no duty to provide alternative provision due to the fact Y was a post 16 student and beyond statutory school age.
49. However, the Council still had a duty to secure the specified special educational provision (section F) in Y’s EHC Plan until such time as her EHC Plan was legally ceased. Given Y was not attending college, this would either be in the home or at an alternative provision setting.
50. So, what steps did the Council take to secure the special educational provision, specified in Y’s EHC Plan?
51. The Council did consult an alternative college in January 2024, but it was agreed, for whatever reason, that the college was not suitable. After this, Ms X asked for an EOTAS package which the Council twice refused.
52. I cannot see that the Council acted on its duty to meet Y’s special educational needs until such time as the EHC Plan was legally ceased (even though the Panel recommended exploring an educational package between January to July 2024, paragraph 32).
53. Moreover, even if the Council had decided to cease the EHC Plan in January 2024, the Council would still have had to continue meeting need until either the appeal period had expired (two months) or the SEND Tribunal had made a decision.
54. I recognise that the Council considers Ms X’s EOTAS package was only for social activities. But it would have been open to the Council to consider whether Y had achieved the stated outcomes in her EHC Plan, and also to discuss directly with Ms X how the Council intended to meet the required special educational provision.
55. It was also clear that Ms X envisaged that, providing specific support for Y’s mental health needs through an EOTAS package, was a necessary step to helping Y return to college (see paragraph 31). She also says that she asked for tuition in English and Mathematics, although the Council says that this was not the case.
56. But, on the evidence I have seen and, on the balance of probability, I consider Ms X would have requested such tuition, even if the Council has not made a record of such a request.

Does the Council have an appeal mechanism when it refuses a personal budget?

57. Councils should have a way for parents/carers to appeal when a personal budget is refused. In this case, the Council allowed Ms X’s request to be reconsidered by the Council’s Panel. So, Ms X did have the opportunity to challenge the Council’s initial refusal.
58. It is for councils to decide its appeal mechanism for these challenges. But we would expect any appeal not to be considered by the same council staff who made the original decision.
59. The minutes of the Panel meetings, which I have seen, do not record names of the staff sitting on the two Panels. So, if the second Panel consisted of the same members as the first, I consider that this did not constitute a proper appeal. That too is fault.

Injustice

60. I am satisfied that the Council failed to properly consider its duties to meet Y’s special educational needs/provision, and it failed to take action which would have provided Ms X with the alternative remedy of appeal to the SEND Tribunal. Only the Tribunal can order educational provision. I am satisfied that Ms X would have used these earlier opportunities to appeal to secure the right provision for Y to meet her needs.
61. However, I am conscious that the Tribunal would have required Y’s consent (given her age) for Ms X to pursue any appeal. And, I cannot say what might have been different in terms of outcome but for the faults and the lost opportunities to appeal to the Tribunal.
62. However, I am satisfied that the Council had a duty to make the provision set out in Y’s EHC Plan until such time as the EHC Plan was legally ceased. I consider the Council did not consider this duty properly.
63. Again, I cannot say what difference a proper consideration would have made to the outcome. But there is a significant lost opportunity here for Y to be helped and encouraged to achieve the outcomes set out in her EHC Plan, supported by her mother, and to continue in education with appropriate provision to meet her needs.

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Agreed action

64. We have a wide statutory discretion in determining the nature and level of any remedy (ss. 30(1A) and 31(2B)-(2BA) of the Local Government Act 1974). In exercising that discretion, we apply our guidance on remedies most recently updated in July 2024.
65. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
66. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount (between £300 to £500) whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
67. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
68. Our guidance on remedies also says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

69. As stated, the Council had a duty to meet Y’s special educational provision until such time as her EHC Plan legally ceased. My view is that the Council should have been considering how to meet Y’s special educational needs between January and July 2024.
70. To remedy the injustice identified, the Council will within one month of the final statement:
1. apologise to Ms X for the lost opportunities to appeal to the Tribunal and for her avoidable distress, and make a symbolic payment of £500;
2. make a payment of £2,400 to Ms X to use for Y’s educational benefit for the failure to provide for her needs between January to July 2024. This is half of our termly tariff because I am mindful that Y was beyond statutory school age and may not have accepted any tuition offered by the Council;
3. remind relevant staff of the need to secure provision in an EHC plan until such time the EHC plan has legally been ceased; and
4. clarify the Council’s arrangements for appeals against a refusal of a personal budget.
71. The Council should provide us with evidence it has complied with the above actions.

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Final decision

72. I consider that there is fault causing injustice. The Council has accepted the findings and recommended actions. Therefore, I have completed my investigation and am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman