Summary: Mr X complained the Council failed to provide his child Y with the provision set out in Y’s Education Health and Care (EHC) Plan, delayed updating the Plan and delayed setting up direct payments to secure provision for Y whilst it sought a school place. The Council was at fault. It failed to review Y’s Plan when Y stopped attending school, delayed arranging alternative provision to meet Y’s needs and the provision arranged did not meet all Y’s needs. The Council has agreed to apologise to Mr X and make payments to acknowledge Y’s missed provision and the distress, frustration and uncertainty caused to Mr X. It has also agreed to review its procedures.

The complaint

1. Mr X complained the Council failed to provide his child Y with the provision set out in their EHC Plan during the 2023/24 school year, delayed updating the Plan and delayed setting up direct payments to secure provision for Y whilst it sought a school place. As a result, Mr X says Y has missed out on provision and this has caused him significant frustration.

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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. 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)
3. 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)
4. 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.
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)
6. Under our information sharing agreement, we will share the final decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I have considered the information provided by Mr X and have discussed the complaint with him on the telephone. I have considered the Council’s response to our initial enquiries and the relevant law and guidance.
8. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant law and guidance

EHC Plans

9. 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. 
10. 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)  

Annual reviews

11. 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.
12. 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) 
13. Where the council proposes to amend an EHC Plan, case law sets out this should happen within four weeks of the date of the review meeting. A final plan must be issued within 12 weeks of the annual review meeting.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
15. Parents, the school and the council can all ask for an early annual review in certain circumstances. This is sometimes referred to as an interim or emergency annual review and is specifically carried out by the council. An early review might be because:
• The child or young persons education, health or social care needs have changed and are no longer accurately described in the EHC Plan.
• The education, health or social care provision or the named placement in the EHC Plan is no longer meeting the child or young person’s needs.
• The child has been excluded from school or is considered to be at risk of exclusion.

Section 19 duty

16. 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.

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. 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.

Background

21. Y has a diagnosis of autism spectrum disorder and other health conditions. Y attended a special school, School B. Y had an EHC Plan which named School B in section I of the Plan. In December 2022, at the annual review meeting School B said that it could no longer meet Y’s needs after July 2023. In January 2023 School B formally gave notice to the Council.
22. The Council wrote to Mr X in late January 2023, following the review, with its decision to amend Y’s EHC Plan. It issued Y’s final amended EHC Plan in early April 2023. In section A, Mr and Mrs X noted Y had outgrown their current setting due to their need for more independence and the school lacking space to meet Y’s ongoing needs. They stated they were grateful for an opportunity to make sure Y was placed in a school where they could succeed emotionally and intellectually.
23. The plan set out that Y would:
• be supported on a two to one basis with access to a mixture of group sessions, natural environment teaching and a breakout space if needed.
• receive up to 6 hours a week of therapeutic techniques to promote two way communication following a positive behaviour approach.
• receive 31 hours of speech and language therapy throughout the year including 30 minutes each week.
• Receive 12 hours of Occupational Therapy (OT) a year in addition to 45 minutes direct intervention each week.
24. The plan still named School B in section I.

What happened

25. The following is a summary of the key events relevant to this complaint and is not intended to be a detailed chronology.
26. Y stopped attending School B at the end of the school year. In July 2023 Ms X requested that Y receive alternative education whilst they were out of school and Ms X believed the Council was actively consulting schools. . The Council agreed to approve a personal budget for Y if it was unable to find a suitable school. Y continued to receive their OT support.
27. In August 2023 the Council consulted tutors with a view to arranging three to four hours of support for Y each day until a school placement could be found. It also consulted a behavioural support provider but later established the previously used service was not available. It had also consulted 15 schools but received no offers.
28. In early September Mr X requested some speech and language therapy (SALT) provision for Y and the Council agreed to consult seven more providers.
29. In September 2023 the Council agree to fund some 2:1 tuition for Y from company 1. The tuition was not successful. Company 1 only managed to arrange one member of staff who was not able to support Y appropriately on their own.
30. In October 2023 the Council agreed to fund 15 hours of 2:1 support with company 2 plus SALT provision. The Council’s decision-making panel’s records say the Council had unsuccessfully consulted 36 schools. The tuition with company 2 started in late October.
31. In November 2023 Mr and Mrs X requested further funding for some positive behavioural support for Y, in line with their EHC Plan, while looking for a school placement. The Council’s funding panel requested further information about any past positive behavioural support involvement.
32. In early December 2024 the Council’s funding panel agreed to fund two positive behaviour support sessions Mr and Mrs X had funded.
33. In December 2023 the case officer said they would arrange Y’s annual review as it was due. They also suggested amending the EHC Plan to better reflect Y’s needs and to name a type of placement, rather than specific placement, in section I to give Mr and Mrs X a right of appeal.
34. Mr and Mrs X contacted the Council to ask what the strategy was for re-applying to schools who did not have capacity at that time. They asked if the Council challenged when they said Y was not the right fit and expressed concern that home schooling was not working. The case officer advised they would go back to schools who did not give a comprehensive response to get a further explanation.
35. Mr and Mrs X met with the Council in January 2024. The Council agreed to carry out a new Educational Psychology assessment for Y to update Y’s EHC Plan before it undertook any further school consultations.
36. In late January 2024 Mr X reported tuition with company 2 was not working as they were not engaging with Y and could not accommodate Y’s needs. They asked the Council to provide a personal budget to help prevent future breakdowns. The caseworker asked the Direct Payments Team to get direct payments in place as soon as possible.
37. The Council sent Mr X a consent form for an EP assessment in February 2024. Mr X returned this to the Council four weeks later.
38. The Council met with Mr and Mrs X in April 2024. It agreed a personal budget for Y in April 2024 which covered a positive behaviour support assessment, SALT and OT support. It said the Direct Payments Team would be in contact and Mr X should send a list of activities he felt Y should access. However, the positive behaviour consultant Mr X had previously identified no longer had capacity to support Y. The Council also said it was still considering options for Y’s tuition.
39. In late April 2024 Mr X arranged some tuition for Y.
40. Mr X complained to the Council.
41. In May 2024 the Council arranged Y’s annual review. Mr X also sent the Council invoices from company 3, a company he had identified which was providing tuition to Y. The Council’s funding panel agreed to Mr and Mrs X request for an increase in the personal budget to cover 2:1 tuition.
42. At the annual review Mr X reported they had a tutor, but the tutor left over concerns about whether they would be paid. Mr X reported they were also waiting for the EP assessment. At the annual review they requested an increase in Y’s SALT and OT provision and funding for activities as Y’s behaviour was deteriorating having been out of school so long. Mr and Mrs X did not want to go through the outcomes in the plan as they said it was too outdated. They wanted a school place for Y.
43. In late June the Council’s funding panel agreed to an increase in Y’s SALT and OT provision, for some sport coaching and a leisure pass for Y.
44. The Council also wrote to Mr and Mrs X four weeks after the review with the decision to amend the EHC Plan.
45. The EP completed their assessment in early July 2024 and the Council sent a draft amended plan to Mr X shortly after. The Council issued the final amended plan in late July 2024. This named ‘special school’ as the placement type. It did not name a specific school. A new tutor also started working with around this time.
46. Mr and Mrs X remained unhappy and complained to us in late June 2024.

Findings

47. When the Council finalised Y’s EHC Plan in April 2023, following the December 2022 review, it continued to name School B. Y was attending the School at that time. In addition, Mr X understood the Council was actively searching for an alternative placement from September 2023 and had no concerns at the time with the content of the Plan. Therefore, it was not reasonable for Mr and Mrs X to have used appeal rights following the April 2023 finalised Plan.
48. When it became clear that it was having difficulty finding an alternative school place the Council should have arranged an emergency review without delay and by the start of the new school term, in September 2023, at the latest. The delay in doing so was fault.
49. In July 2023, the Council agreed to consider a personal budget for Y, to enable a package of alternative provision to be arranged. However, a personal budget for education purposes can only be arranged through an EHC Plan. If the Council decided it was appropriate for Y’s needs to be met through a personal budget, it should have held a review so that the Plan set out what provision Y should receive, via the budget. The Council did not arrange a personal budget until May 2024 and did not issue a final EHC Plan setting out the agreed budget until July 2024. The delay in arranging a personal budget and amending the Plan was fault. This meant Y remained out of school, without suitable provision or the SEN provision in their Plan for longer than they should have.
50. At the very latest the Council should have held the annual review in December 2023, when it was due. The review was not arranged until May 2024. This delay was fault, delayed Mr X’s statutory right of appeal and added to his frustration and uncertainty.
51. At the start of the new school year, in September 2023 the Council still had a duty to provide Y with the provision in their EHC Plan and to make alternative provision for Y as Y was no longer attending School B. Y continued to receive OT support and later some SALT provision. The Council arranged some tuition, but this was not consistent, there was some months when Y received no provision, the tutors arranged could not meet Y’s needs and when it was delivered was for far fewer hours than Y would have received at school.
52. In November 2023 Mr and Mrs X identified a behaviour support consultant to work with Y. The panel refused to agree to the costs of this as it required additional information on previous behavioural support interventions. The failure to provide sufficient information to the panel was fault. When the Council did agree to it, five months later, the consultant no longer had capacity to support Y, so Y missed out on accessing this provision.
53. Overall, for the 2023/24 academic year, Y did not receive all the specialist provision set out in their plan and the provision arranged did not meet all of Y’s needs. Mr X says this has impacted on Y’s learning and behaviour. The faults also caused Mr X significant distress, frustration and uncertainty.
54. Where fault has resulted in a loss of educational provision, The Ombudsman Guidance on Remedies recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. As Y did receive some provision, I have recommended a payment at £1500 a term.

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Agreed action

55. Within one month of the final decision the Council has agreed to:
1. apologise to Mr X and pay him £4500 for the benefit of Y, to acknowledge the impact of the missed provision in the 2023/24 school year. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. pay Mr X £300 to acknowledge the distress frustration, uncertainty and delayed appeal rights caused to him by the Council’s delays in reviewing Y’s EHC Plan and in arranging alternative provision.
56. Within two months of the final decision the Council has agreed to:
1. review its procedures to ensure interim/emergency reviews are arranged in a timely manner when it is clear a placement is ending and a new placement is yet to be identified.
2. review how it consulted schools in this case to identify whether any lessons can be learned particularly in relation to the better targeting of consultations, following up responses to consultations and ensuring the reasons given for refusing a place are adequately provided.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation. The Council was at fault causing injustice for which it has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman