Summary: Mrs X complained the Council delayed in holding her son, Mr Z’s, annual review of his Education, Health and Care Plan, mishandled the process when she asked for a personal budget to pay for provision because she was home schooling him, and then delayed in providing the funds once the Council had agreed them. The Council was at fault in how it carried out the annual review and personal budget processes. It also delayed by 6 months in providing the agreed funds. The Council has agreed to provide evidence it has carried out the service reviews it had identified before this Ombudsman investigation. It has also agreed to make Mrs X a payment to acknowledge the injustice the faults caused her and Mr Z.

The complaint

1. Mrs X complains about the way the Council handled her request for a personal budget for her son, Mr Z, who has special educational needs. In particular, she complains the Council:
• failed to hold a review of Mr Z’s Education, Health and Care (EHC Plan) Plan in a timely manner when she requested a personal budget in March 2018;
• failed to follow the correct process after Mr Z’s annual review, and delayed in issuing his final amended EHC Plan;
• provided incomplete and confusing information about what information to submit to the panel in support of her request for a personal budget;
• provided contradictory information about the amount of personal budget allocated to Mr Z;
• failed to update her in a timely manner after panel meetings in January and March 2019;
• did not provide a clear response to her complaints and failed to address all the points she made; and
• failed to provide her with the personal budget agreed in January 2020.
2. As a result, Mrs X says Mr Z has missed out on a year of the special educational provision Mrs X says he needs. Mrs X also says she was also put to unnecessary time and trouble pursuing her request for a personal budget which caused her frustration and distress.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. Caselaw has established that where someone may appeal to SEND, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the contents of an EHC Plan or the type of educational placement it specifies, we cannot seek a remedy for lack of education after the date of the final EHC Plan. But, where there has been a delay in issuing an EHC Plan, the Ombudsman may consider whether any additional provision ordered by the Tribunal could have been made sooner but for the council’s delay. (R (on the application of ER) v The Commissioner for Local Government Administration [2014] EWCA Civ 1407).
7. In this case, I have decided to exercise my discretion and consider the period from January 2019, when the Council issued a final amended EHC Plan to May 2019 when it another one and Mrs X then appealed. I explain why at paragraph 82 of this decision statement.
8. If we are satisfied with a council’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)
9. 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.

Back to top

How I considered this complaint

10. I spoke to Mrs X and considered her view of her complaint.
11. I made enquiries of the Council and considered the information it provided.
12. I considered the relevant legislation and guidance. This included the Child and Families Act 2014 (the Act), the Special Educational Needs and Disability Regulations 2014 (the Regulations) and the Special Educational Needs and Disability Code of Practice 2015 (the Code).
13. I wrote to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.

Back to top

What I found

The law, statutory guidance and Council policies

Children with special educational needs

14. A child with special educational needs may have an EHC Plan. This sets out the child’s needs, what arrangements should be made to meet them and where or how the child will be educated. The EHC Plan is set out in sections. The Ombudsman cannot make changes to the sections about special educational provision or name a different school. Only the SEND tribunal can do this.

Home education for children with EHC Plans

15. When a child has an EHC Plan, the council has a duty to ensure the educational provision set out in the Plan is made available to the child.
16. But this only applies if the child’s parents have not arranged for the child to receive a suitable education in some other way. Parents may choose to educate their child at home, including where the child has special educational needs. (Education Act 1996, section 7).
17. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved and the council has no duty to arrange any special educational provision for the child (section 61 of the Children and Family Act 2014, the Code, and statutory guidance ‘Elective Home Education’).
18. Where councils and parents agree home education is the right provision for the child, the EHC Plan will make this clear. It will name ‘Education otherwise than at School’ (EOTAS) in section I. In these cases the council has a duty to arrange and fund the special educational provision set out in the Plan.
19. This is not the same as parents deciding to educate the child at home. Where the council considers an education placement is suitable but the parents decide to educate at home, the council is not under a duty to arrange the special educational provision set out in the Plan. This applies as long as the council is satisfied the arrangements the parents have made to educate the child are suitable.
20. In these cases the EHC Plan should set out the type of special educational provision that the council thinks the child needs but say the parents have made their own arrangements under section 7 of the Education Act 1996.
21. A council may help parents who choose to educate their child at home with the costs of special educational needs support, even though it has no duty to do so. It must “give reasonable consideration to any request for assistance - including considering whether it has any legal power to comply with the request and whether in the circumstances it ought to do so”. (Department for Education guidance ‘Elective Home Education’)

Annual reviews

22. Councils should ensure an annual review of the child's EHC Plan is carried out no more than 12 months after issuing the original plan or the completion of the last annual review.
23. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
24. Where a council proposes to amend an EHC Plan, the Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
25. The Code states the council 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
26. The council must give the parent or young person at least 15 calendar days to comment on the proposed changes. (s22 (2)(c) SEND Regulations 2014).
27. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within 8 weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014).

Personal budgets

28. A personal budget is the amount identified by the council to deliver the provision set out in a young person’s EHC Plan, when the parent or young person arranges that provision themselves.
29. The council can give the parent or young person the funding to arrange and manage the service themselves. This is called a direct payment.
30. The final EHC Plan must include detailed information on any personal budget that will be used to secure provision in the EHC Plan, including the needs and outcomes that are to be met by any direct payment.
31. This Council has a Finance Commissioning Panel whose role include approving EHC Plans and any arrangements for personal budgets.

What happened

32. Mr Z has special educational needs, including dyslexia, and has been educated at home for a number of years. He has had an Education, Health and Care (EHC) Plan since November 2017.
33. Mrs X was unhappy with Mr Z’s EHC Plan and told the Council she was planning to appeal it. Mrs X agreed o mediation with the Council before she made her appeal.
34. On 6 March 2018, Mrs X attended a mediation meeting with the Council. The record of that meeting said the Council would:
• commission assessments from the Occupational Therapist (OT) and the Educational Psychologist (EP) within two weeks of the meeting; and
• carry out Mr Z’s annual review once it had received this information.
35. On 4 April 2018, a Council officer, Officer 1, contacted the NHS OT department and requested an assessment for Mr Z. Officer 1 wrote “Would you be able to do the assessment and provide the report within a fortnight from today please. I know it is a tight deadline, but this is one that has been missed”.
36. The OT department responded promptly with details of the cost of the assessment, but then there was no further contact from Officer 1.
37. Also on 4 April 2018, Officer 1 emailed the Council EP and asked if they had carried out an updated assessment of Mr Z. The EP responded on 9 May 2018 and said this had not been requested.
38. On 23 May Officer 1 emailed to confirm an EP assessment was needed. Officer 1 also chased the OT department to carry out the assessment.
39. The OT submitted their assessment on 7 June 2018. The EP submitted their report on 10 September 2018. The Council has not provided any evidence Officer 1 chased them for these reports.
40. Mr Z’s annual review was held on 7 November 2018. Attendees included a representative from a home education consultancy.
41. On 26 November 2018, the representative sent Officer 1 their comments on Mr Z’s EHC Plan. These stated Mrs X wanted Mr Z to attend a sixth form college from September 2019. The representative said Mrs X would send Officer 1 details of the dyslexia friendly maths and English courses she had identified which they hoped the Council would fund through a personal budget prior to Mr Z attending a college.
42. On the same day, Mrs X sent Officer 1 a post-16 transfer form naming College C, a mainstream college, as her preferred placement.
43. On 7 January 2019, the Council issued Mrs X with a decision notice to amend Mr Z’s EHC Plan and attached the draft amended Plan. This included a request from Mrs X for an annual personal budget of £4,275 to pay for dyslexia friendly courses in Maths, English and ICT together with another online dyslexia course.
44. Mr Z’s social worker referred Mrs X’s request to a Council Panel. The request was for £1,500 for an online dyslexia course.
45. On 10 January 2019, the Council’s Panel met to discuss Mr Z’s case. Mr Z’s social worker was not present. The Panel rejected Mrs X’s request. The notes from the meeting stated: “Need to know exactly what his home programme looks like and where this dyslexia course sits within it”.
46. The Council consulted with three colleges, including College C. College C refused to offer Mr Z a place.
47. The Council issued Mr Z’s final amended EHC Plan on 21 January 2019 and sent it to Mrs X. The educational placement section in the Plan stated Mr Z was being educated by alternative home education provision. The Plan contained the details of Mrs X’s request for a personal budget but no decision on whether the Council had approved it.
48. On 29 January 2019, Mrs X emailed Mr Z’s social worker and said she was still waiting to hear what type of information she needed to submit to the next Panel meeting. The social worker responded on 4 February 2019 with the information Mrs X needed to provide.
49. Mrs X provided the information on 13 March 2019 and the Panel met the next day. The request to the Panel from the social worker was for £1,219 to pay for a laptop and the online dyslexia provision.
50. The Panel did not agree to the request. The notes stated: “Need to decide what will happen from September. Parents will want to… consider what the plan will be”. The notes also included comments that Mr Z did not generate any ‘top-up funding’.
51. Mrs X asked for an update on the same day as the Panel meeting. The social worker responded on 18 March with an update to say the request had been refused.
52. On 22 March 2019, College M, which was a mainstream college, offered Mr Z a place.
53. On 11 April 2019, the Panel considered the training course at College M at a cost of £7,968. The Panel said if Mrs X would agree to Mr Z attending College M, it would approve the funding.
54. The Council named College M in Mr Z’s EHC Plan.
55. On 26 June 2019, Mrs X appealed to the Tribunal. She said Mr Z’s Plan minimised his special educational needs and so the provision was wrong. She also challenged the placement named on the Plan.
56. Following further correspondence with Mrs X, the Council met with her in October 2019 and then wrote to her on 22 November 2019. The Council:
• apologised for not being clear enough in explaining the Panel decisions;
• apologised for miscalculating the personal budget for the 2018/19 year. It discussed top-up funding again and said it should have sent her £465 for Mr Z which it had now done; and
• said it had now agreed with Mrs X a personal budget for the 2019/20 school year which it was currently finalising.
57. On 26 November 2019, the Council issued another final amended Plan. It approved a personal budget for £3,998 to pay for Maths, English and IT, exam fees and hardware and software. This included additional funds to enable Mr Z to catch up for the provision he had missed from the start of the school year in September 2019.
58. Mrs X was in agreement with the amended Plan and withdrew her appeal. On 29 November 2019, the Council emailed the Tribunal service with Mr Z’s final amended EHC Plan and said all issues had been resolved.
59. In January 2020, Mrs X chased the Council asking it send Mrs X the personal budget funding agreed. The Council did not do so.
60. On 24 January 2020, Mrs X complained to the Council because she had yet to receive the personal budget.
61. The Council responded to Mrs X’s complaint on 24 April 2020. However, Mrs X remained unhappy and complained again.
62. The Council responded on 22 May 2020. It said there had been delays in parts of the process and apologised. Mrs X remained unhappy and complained again.
63. The Council sent Mrs X the money on 20 June 2020. By this stage, Mrs X had made numerous requests for payment.
64. On 8 October 2020, the Council sent Mrs X its final response to her complaint. It said it had delayed by 6 months in issuing Mrs X with the personal budget funds and apologised. It also said it was “working on a programme of improvement to strengthen communication and resolve historic complaints and concerns”.

My findings

Annual review November 2018

65. The Council agreed in March 2018 that Mr Z required reassessments from the OT and EP because it had concerns that his EHC Plan was not up to date. The meeting notes stated these must be requested within 2 weeks of the meeting. Once these had been received, the Council would carry out an early annual review of Mr Z’s EHC Plan.
66. If the Council had followed the agreed and statutory timescales, the reports would have been commissioned by 20 March 2018. The statutory guidance during reassessments allows 6 weeks for professionals to submit reports. This means the Council would have received these around the beginning of May 2018. Allowing time to request other documents and issue invites for an annual review, it is likely this would have taken place around the end of May 2018.
67. The Council did not request the assessments until 4 April, around a month after the mediation meeting was held. This created delays which were further compounded by the Council’s failure to then chase for the reports. As a result, the matter was allowed to drift and the annual review took place on 7 November 2018. This caused a delay of around five months in holding the annual review meeting and was fault.
68. The statutory guidance states a council must issue the decision notice within 4 weeks of the meeting. Although the Council acted with fault when it failed to issue the decision notice within the correct timescales, it issued Mr Z’s final amended EHC Plan on 21 January 2019 which was without delay.
69. Overall the process to issue Mr Z’s final amended EHC Plan took 10 months from the date of the mediation meeting in March 2018 to the issuing in January 2019. This is significantly longer than we would expect a Council to take and was fault.

Personal budget section of Mr Z’s January 2019 EHC Plan

70. The final EHC Plan must include detailed information on any personal budget that will be used to secure provision in the EHC Plan, including the needs and outcomes that are to be met by any direct payment.
71. When the Council issued Mr Z’s final amended EHC Plan in January 2019, it included Mrs X’s request for a personal budget. However, it failed to specify whether this was approved, and so formed part of the Plan. This is not in line with the statutory guidance and is fault.

Requests to the Panel

72. Because Mr Z was home schooled the parents take on financial responsibility for any costs involved. However, a council may help parents who choose to educate their child at home with the costs of special educational needs support, even though it has no duty to do so. It must “give reasonable consideration to any request for assistance”.
73. Council procedures state that a Panel must agree payments and placements. Between January and March 2019, the Panel considered personal budget requests for Mr Z on two occasions.
74. The first Panel meeting rejected the social worker’s request because it needed more information. This information was readily available from Mrs X. The Council’s failure to ensure this information was available to the Panel for the January meeting was fault. Furthermore, the request made by Officer 1 did not include all the funding Mrs X had requested. The Council then failed to update Mrs X in a timely manner of the Panel decision. This too was fault.
75. At the March meeting, Mrs X provided the information Officer 1 had advised her to. However, the Panel rejected the proposal again, stating it needed to know more about Mr Z’s plans for September.
76. The Council should have made clear to Mrs X what information its Panel would need to make a decision before the meeting to enable her to provide it. This was the second time Mrs X was misinformed about what information to provide and this was further fault.
77. Although the Panel did not have to approve Mrs X’s request, the guidance states it should “give reasonable consideration to any request for assistance”. Because the Panel did not have the information it needed, it was unable to make an informed decision at either meeting. This added to the delays and was fault.

Consultation with Mrs X’s preferred placement

78. Mrs X named College C as her preferred placement. The Council consulted with College C. There was no fault in the Council’s actions.

Personal budget agreed in Mr Z’s November 2019 EHC Plan

79. The Council agreed a personal budget in Mr Z’s November 2019 EHC Plan. Despite numerous reminders to the Council, this was not made available until June 2020, seven months later. The Council has already admitted it was at fault and apologised but has failed to sufficiently consider the injustice this caused Mr Z and Mrs X or whether any additional remedy is required.

Complaint responses

80. I have read the letters from the Council to Mrs X which dealt with personal budgets, top-ups and the methods used for calculating them. These were confusing, contradictory and at times difficult to follow. This was fault and it caused Mrs X additional frustration.

Injustice to Mrs X

81. Mrs X’s appeal rights were delayed when the Council took too long to complete the annual review process. This caused her uncertainty about whether if she had appealed earlier, she may have received the funding for Mr Z’s provision earlier.
82. The Council issued Mr Z’s final amended EHC Plan in January 2019 and the covering letter provided Mrs X with information about how to appeal. Mrs X’s appeal rights were triggered at this time. Case law says we cannot investigate something where it was reasonable for the person to appeal to the Tribunal.
83. However, at the same time, the Panel meetings were ongoing to consider Mr Z’s personal budget for additional provision. This led to confusion as Mrs X thought the matter was being addresses through this process. On this basis, it was reasonable for her to decide not to appeal at that time. As a result, I decided to exercise my discretion and consider whether there was any injustice during the period January to May 2019 when the Council issued another final EHC Plan and Mrs X chose to use her appeal rights.
84. During the Panel process, the Council failed to make it clear what information the Panel required. This caused further delay and added to Mrs X’s sense of frustration and uncertainty that the Panel might have reached a different outcome.
85. I cannot look at what happened between May and November 2019, because this was when Mrs X’s appeal rights were triggered.
86. At the end of November 2019, the Council agreed to pay for the provision Mrs X requested and issued another final amended EHC Plan. This contained a personal budget to pay for hardware and software, tuition and exam costs. However, the Council did not pay this to Mrs X for six months. During this time, Mrs X was caused unnecessary time and trouble and distress in chasing the Council.

Injustice to Mr Z

87. On balance, the Panel would have always made the decision not to fund Mr Z’s home school provision and instead offer him a place at College M. This is because Mrs X had expressed an interest in placing Mr Z in college from September 2019.
88. However, the Council’s actions led to the provision Mr Z needed being delayed by six months. On balance, this is likely to have affected his studies and progression. The Council should make Mrs X an additional payment on Mr Z’s behalf, to spend as she feels best on educational provision for him.

Back to top

Agreed actions

89. Within three months of the date of the final decision, the Council has agreed to:
• pay Mrs X £450 to acknowledge the confusion and frustration she was caused when her appeal rights were delayed, when the Council delayed in providing the provision it agreed in November 2019 and when it provided her with confusing, contradictory or delayed responses;
• pay Mrs X, on behalf of Mr Z, £1,000 to remedy the injustice he has been caused in the delays by the Council in providing the provision agreed in his EHC Plan. This takes into account the £465 the Council has already paid Mrs X.
90. Within three months of the date of the final decision, the Council has agreed to provide evidence in relation to the provision to staff of training or guidance about the information needed by the Panel when considering personal budget direct payment requests, to ensure families are properly advised.

Back to top

Final decision

91. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman