Summary: Mrs X complains the Council failed to arrange education and delivery of Child Y’s EHCP, which meant they were without support and provision. We find fault with the Council for failing to ensure delivery of Child Y’s EHCP following the tribunal order. The Council has agreed to make a financial payment in recognition of distress and lost provision.

The complaint

1. Mrs X complains the Council

• failed to supply special educational provision as required by Child Y’s EHCP,
• failure to arrange full time education, and
• failed to follow the correct procedures of a personal budget request.

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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 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)
4. 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.
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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What I have and have not investigated

6. Part of Mrs X’s complaint is about EHCP provision and education that she believes should have been delivered to her son prior to tribunal. She also complains about how the Council considered her request for a personal budget.
7. I have not investigated these parts of the complaint, as Mrs X appealed the contents of the EHCP at tribunal in May 2024. Mrs X’s appeal at tribunal is directly linked to what provision and education her child was to receive, and how it was to be delivered. As these parts of her complaint are linked to her appeal at the tribunal, I have only considered the parts of her complaint after the tribunal concluded.

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How I considered this complaint

8. I discussed the complaint with Mrs X and considered information she provided.
9. I considered information the Council provided about the complaint.
10. I invited Mrs X and the Council to comment on my draft decision and considered any comments received.
11. 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

Legislation and guidance

12. Education, Health and Care (EHC) 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. 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)  
15. There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue an 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;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

16. Alternative provision
17. 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.
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
19. There is no absolute legal deadline by which local authorities must start to arrange education for children with additional health needs. However, as soon as it is clear that a child will be away from school for 15 days or more because of their health needs, the local authority should arrange suitable alternative provision. (Statutory guidance, ‘Arranging education for children who cannot attend school because of health needs’)
20. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

Background to the complaint

21. Child Y has an EHCP maintained by the Council. The Council issued the first EHCP in October 2023. At the time of the issuing of the EHCP, Child Y was in nursery and but had been due to start primary school in September 2023.
22. Child Y’s EHCP named a mainstream school. Mrs X did not agree with the named mainstream school and asked the Council to name a specialist school. She lodged an appeal to the tribunal to appeal the contents of the EHCP, and the named placement.
23. In April 2024, the Council told Mrs X that it agreed Child Y should attend the specialist school, but that it did not have availability until September 2024 and the school named on the plan remained Child Y’s school until then. The Council provided extra funding to the mainstream school to deliver extra support until September 2024.
24. The Council and Mrs X agreed that Child Y could remain in their nursery setting until the end of March 2024. This was because Child Y did not need to start school until the term after their fifth birthday. From this point, the Council had given extra funding to Child Y’s named school to deliver alternative provision in the summer term.
25. On 1st April 2024, Mrs X submitted a request for a personal budget to deliver Child Y’s EHCP.
26. On 10th May 2024, the Council agreed that Child Y should have tuition for 10 hours a week until starting his specialist placement in September 2024. It also said it would arrange Speech and Language (SALT) provision and Occupational Therapy (OT) for Child Y.
27. Mrs X continued to ask the Council to deliver the EHCP via a personal budget. The Council said it was awaiting the outcome of the tribunal.

Complaint issues

28. The tribunal ruled in May 2024 that for the summer term of 2024, Child Y should have

• 10 hours of tuition
• 2 hours of social skills and play skills activities
• 1 hour of trampolining
• 1.5 hours of play sessions
• 4 transition visits

29. The Council agreed to deliver the provision via personal budget and passed it to the personal budget team to arrange with Mrs X. Mrs X asked the personal budget be backdated to 17th May 2024 when the tuition was agreed.
30. The Council did not arrange for the personal budget to be delivered until mid-July 2024. At first it asked Mrs X to provide invoices for the services and it would repay her. Mrs X told the Council she could not afford to pay for the support and wait to be refunded. The Council then told Mrs X at this time there was no availability for most of the additional support, as it was the end of the school year.

Analysis

31. The tribunal order sets out the provision that Child Y should have received following its ruling.
32. The Council has shown that Child Y received the tuition, but I have seen no evidence the Council ensured delivery of the rest of the provision.
33. The Council delayed arranging the delivery of the personal budget until most of the support had concluded for the school year. I have also seen no evidence that it provided Mrs X with the agreed funds for the items agreed in the personal budget or the OT and SALT support.
34. This was fault by the Council, causing Child Y to be without the support and provision ordered by the tribunal.
35. There was also fault by the Council in how it communicated with Mrs X. It did not make clear how and when it would deliver the personal budget once it was agreed, including at first asking her to pay for the support and refunded. This has caused distress to Mrs X who spent significant time and concern chasing the Council asking for the support. The Council’s information about personal budgets says it will be clear about the requirements of them and how they are to be managed, but I cannot see this happened. This caused distress to Mrs X.
36. We have investigated several complaints about failure and delay in delivering EHCP’s for this Council. The Council has already agreed to carrying out service improvements in these areas. I am satisfied the actions already agreed with the Council would address the issues in this complaint and am therefore not recommending further service improvements.

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Agreed action

37. Within 4 weeks the Council has agreed to

• Write to Mrs X and apologise for the delay in arranging Child Y’s provision following the tribunal ruling.
• Pay Child Y £500. This is in recognition of the missed provision for half of the summer term following the tribunal.
• Pay Mrs X £150 for the distress caused by poor handling of communication.

38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. I find fault with the Council for failing to ensure delivery of the EHCP following the tribunal order, and for its communication with Mrs X about the personal budget.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman