Summary: Mrs F complained the Council failed to secure the provision in her son’s education, health and care plan from January to June 2023 and failed to provide him with a suitable education from May 2022 to June 2023. We found fault which caused injustice. The Council has agreed to make a payment to remedy the loss of education to Mrs F’s son and the distress, time and trouble caused to Mrs F.

The complaint

1. Mrs F complains the Council failed to:
• Comply with the required timeframe following the Council conceding her appeal to the SEND Tribunal in January 2023.
• Secure the provision in her son’s education, health and care plan from January to June 2023.
• Provide him with a suitable education from May 2022 to June 2023.
• Respond to her emails.
• Deal with her complaint on time; issuing a late stage two response.
2. Mrs F says as a result she has had to quit her job, putting a strain on the family and her son has missed out on education, been isolated, and his mental and physical health have been affected.

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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. 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)
5. We provide a free service but must use public money carefully. We do not re-investigate complaints we have already made a decision on or start an investigation if we decide there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. 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.
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
8. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA 1407)
9. 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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

11. I have not investigated the provision put in place from May 2022 to January 2023. This is because we have already considered this matter in Mrs F’s earlier complaint to us (21018292). We decided this provision was linked to the matters she had appealed to the SEND Tribunal and was therefore outside our jurisdiction, as set out in paragraphs 7 and 8 above. I have investigated provision made from January 2023 to June 2023.
12. Mrs F has complained the Council “wasted time in defending an EOTAS claim, conceding at the last minute when no further information was provided”. I cannot investigate this as it concerns the Tribunal process.

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How I considered this complaint

13. I spoke to Mrs F about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• The Special Educational Needs and Disabilities Regulations 2014 (“the Regulations”)
14. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special educational needs

15. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
16. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
17. Where the Tribunal orders a council to amend an EHC Plan, the council shall amend the EHC Plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014, reg 44)
18. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
19. If Councils decide it is necessary for child’s SEN provision to be delivered otherwise than in a school (EOTAS) they may arrange for this to happen only if they are satisfied it would be inappropriate for the provision to be made in a school. (Children and Families Act 2014 S.61)
20. In cases where local authorities and parents agree that home education is the right provision for a child or young person with an EHC plan, the plan should make clear that the child or young person will be educated at home. If it does then the local authority must arrange the SEN provision set out in the plan, working with the parents.

Personal budgets and direct payments

21. A personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC plan, where the parent or young person is involved in securing that provision. Parents and young people can request a personal budget when the draft EHC plan is being prepared, reviewed or re-assessed. Details of a proposed personal budget should be included in section J of the draft EHC plan. (SEN (Personal Budget) Regulations 2014)

Alternative provision

22. 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).

Complaint handling

23. The Council has a two-stage complaints procedure. It aims to acknowledge receipt of complaints within three working days. At stage one the target timescale for response is ten working days, up to a maximum of twenty working days. Stage two is a review for the Chief Executive. The target timescale for this stage is twenty working days.

What happened

24. Mrs F’s son, J, is autistic and has ADHD and a health condition. He has an EHC plan and had been attending a mainstream secondary school (“the School”). Mrs F appealed to the SEND Tribunal about J’s EHC plan in 2022. J was out of school and receiving 12 hours of tuition per week.
25. The Tribunal hearing was held on 17 January 2023. On 24 January the Tribunal ordered the Council to amend the EHC plan to make EOTAS provision for J. The order says no late evidence was submitted and the Council and Mrs F “had been able to come to a certain measure of agreement on the working document and there were substantial further agreements made during the hearing.” The amended final EHC plan should have been issued within 5 weeks of the order (i.e. by 28 February 2023).
26. The Council emailed the School on 6 February advising the outcome of the Tribunal and requesting it remove J from its roll. It also asked a community provider to make 5 hours of provision each week and started discussing a personal budget for EOTAS with Mrs F.
27. Mrs F complained on 16 March that education and SEN provision was not being made.
28. The Council replied on 29 March apologising for the delay in agreeing the personal budget. It said it would issue the revised EHC plan soon. Mrs F remained dissatisfied and requested escalation to stage two, though I have not seen exactly when.
29. J’s annual review of his EHC plan was due in April but was not held.
30. Mrs F came to the Ombudsman in June as EOTAS provision was not being made, the personal budget was not yet agreed and the revised EHC plan had not been issued. She said she was having to fund J’s PE provision, which was necessary due to his health condition. It was too soon for us to investigate as the Council had not yet issued a stage two response to the complaint.
31. The personal budget was finalised with Mrs F on 28 June and the final EHC plan was issued on 17 July. This said J would receive 12 hours of tuition and five hours of provision from the community provider for PE and social and communication skills. In addition, the personal budget would fund resources, weekly massage and fitness sessions and community activities.
32. The Council sent its stage two response to Mrs F’s complaint on 31 August. It apologised for the delay in issuing the EHC plan and agreeing the personal budget. It had backdated the budget to March 2023 as Mrs F had been funding the PE sessions. It also offered to pay her £200 to acknowledge the distress caused.
33. Mrs F came back to the Ombudsman. She said the 12 hours a week tuition was not suitable because it could only be done at home with another adult present, meaning she could not work, and it did not include PE which was essential for J’s health. It also caused J to be socially isolated. The Council had taken J off the School’s roll without talking to her and communication from the Council had been poor.

My findings

34. Following a SEND Tribunal’s order, the Regulations require councils to act within set timescales. As the Tribunal ordered amendments to the EHC plan, the revised plan should have been issued within five weeks, i.e. by 28 February 2023. The Council did not issue it until 17 July. This is fault.
35. The Council has accepted that there was a delay finalising the personal budget and this was not agreed until 28 June. As a result, he did not receive the full EOTAS provision set out in his EHC plan until July 2023. This delay is fault.
36. If there had been no fault the plan would have been issued, the personal budget agreed and full EOTAS provision started by March 2023. Although J was receiving 12 hours tuition and PE sessions, he has missed out on the full educational and SEN provision set out in his EHC plan from March to July 2023, effectively one school term. This is his injustice.
37. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
38. Our guidance on remedies says 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. The figure should be based on the impact on the child and take account of factors such as any educational provision that was made during the period and whether the period was a significant one for the young person’s school career. Having taken into account that J was receiving tuition and PE, my view is that a payment of £1,600 would be appropriate to remedy the injustice caused.
39. Mrs F says she was unable to work. We do not normally recommend remedies that reimburse loss of earnings. This is because we cannot usually, on balance, establish a clear and causal link between the fault and the claimed injustice of lost earnings. Such payments are therefore best resolved by the courts. However, I consider she has been caused distress by the delay in putting provision in place. The Council has already offered Mrs F £200 to remedy distress. This is an appropriate remedy in line with our guidance.
40. There was no annual review by April 2023, when it was due. Although J was not at school the Code says annual reviews should take place when a child is not in an education setting. It is the Council’s responsibility to ensure that annual reviews are convened. I therefore find it was fault not to hold the annual review. However, I do not consider this caused injustice as a revised EHC plan was to be issue following Tribunal, so even if there had been an annual review it is unlikely there would have been further changes made.
41. I am concerned that the Council asked the School to take J off its roll in February, before the EOTAS was in place. The Government’s statutory guidance on exclusion from maintained schools makes clear unofficial exclusions are unlawful and “off-rolling” should be done in a planned way when new provision is in place. I therefore find fault. However, I do not find this caused injustice as it is unlikely J would have attended the School even if he had been on the roll.
42. The Council failed to issue its stage two complaint response within twenty working days (i.e. by 3 May 2023). This is fault, causing Mrs F time and trouble as she had to approach the Ombudsman to pursue her complaint.

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Agreed action

43. Within a month of my final decision, the Council has agreed to pay Mrs F
• £1,600 to remedy J’s loss of education and SEN provision from March to July 2023. This can be used for J’s educational benefit.
• £200 to remedy the distress caused to her by the fault.
• £200 to remedy the time and trouble she has been caused by delay in complaint handling.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. 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