Summary: Mrs X complained the Council failed to ensure her grandson, Mr Y, received some of the provision named in his Education, Health and Care plan. The Council was at fault when it failed to secure some of Mr Y’s special educational provision. This led to Mr Y missing out on support he needed and caused Mrs X distress and frustration. The Council was also at fault in the way it considered Mrs X’s personal budget request. The Council has agreed to apologise, pay Mrs X and Mr Y £4,050 and make service changes. We have therefore completed our investigation.

The complaint

1. Mrs X, who complains on behalf of her grandson Mr Y, says that:
• following his Education, Health and Care (EHC) plan annual review in November 2020 the Council delayed issuing his final amended EHC plan. She says that when it did issue the plan in December 2020 it did not include Mr Y’s views;
• between September 2020 and April 2021, the Council did not arrange some of the provision named in Mr Y’s EHC plan;
• the Council did not properly consider or record her request for a personal budget; and
• the Council did not manage her complaint effectively.
2. Mrs X says these failings meant the Council did not support Mr Y as much as it should have done, and he missed out on the educational and therapeutic provision named in his EHC plan. This caused her and Mr Y distress and inconvenience. Mrs X further says the time she spent chasing the complaint meant she had less time to care for her disabled daughter.
3. Mrs X wants the Council to put in place the provision named in Mr Y’s EHC plan and compensate him for the provision that he lost. She also wants the Council to compensate her for her distress and the time and trouble she went to in chasing her complaint.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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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How I considered this complaint

7. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• the relevant law, guidance and policy.
8. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Annual Reviews

9. The Department for Education publishes statutory guidance, the SEND Code of Practice (the Code), which sets out the duties of councils.
10. When a child with an EHC plan moves area, the current council must transfer the EHC plan to the new council. The new council then becomes responsible for maintaining the plan and the special education provision specified in it. It is expected for the child to continue to attend the educational institution named in the EHC plan. But where attendance is impractical the new council must place the child temporarily at an appropriate placement.
11. The new council can bring forward the arrangements for the review of the plan and conduct an assessment regardless of when the previous assessment took place. It must tell the parent within six weeks of the date of transfer when it will review the plan or carry out a reassessment of needs. If it decides to review the plan it must do so within 12 months of the last review or three months of it being transferred; whichever one is later.
12. After review, a council can decide whether to keep the EHC plan the same, make changes or cease to maintain it. A parent can appeal to the SEND (Special Educational Needs and Disability) Tribunal about the decision the council makes.
13. From then on, the new council must review the EHC plan at least every 12 months.
14. Within two weeks of the review meeting the new council must prepare and send out a report setting out any amendments to the EHC plan it is recommending.
15. Within four weeks of the review meeting, the new council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent of its decision and any appeal rights.
16. If the plan needs to be amended, the new council should start the process of amendment without delay. It must then send the notice of proposed amendments together with the old EHC plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
17. When the new council suggests and agrees changes to the draft EHC plan, it should issue the final amended EHC plan as quickly as possible. This must happen within eight weeks of the date the new council sent the notice of proposed amendments to the parents.
18. Where the new council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC plan.
19. In any case the new council must tell the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Personal budgets and direct payments

20. A personal budget is an amount of money that allows parents or young people to have some involvement in arranging provision. The Code says councils must offer a personal budget to most parents or young people who wish to receive them. There are different ways in which the Council can administer a personal budget.
• One of the ways a council can pay a personal budget is via a ‘direct payment’ to the parent or young person.
• Another way a council can pay a personal budget is via a ‘an arrangement’ where the Council holds the money and directly commissions services set out in the EHC plan.
21. Paragraph 9.96 of the Code says that local authorities must have a policy on personal budgets: “…that sets out a description of the services across education, health and social care that currently lend themselves to the use of Personal Budgets, how that funding will be made available, and clear and simple statements of eligibility criteria and the decision-making processes.”
22. The Council’s Personal Budget Policy says it will offer parents early information about the purposes and extent of personal budgets and their implications.

What happened

23. Mr Y has several conditions including an Autistic Spectrum Disorder (ASD). These mean he has significant communication difficulties and memory problems.
24. Mr Y had previously lived with his grandparents, Mrs X and her husband, who acted as his foster carers. Mrs X emailed the Council in June 2020 and told it that Mr Y would be moving into specialist assisted accommodation in August 2020.
25. In the same month Mr Y’s previous council transferred his EHC plan to the Council. The Council told us that Mr Y’s previous council reviewed his EHC plan in January 2019, but did not produce an amended final EHC plan following this review. Of interest to the investigation, Mr Y’s EHC plan in force in August 2020 said he would receive:
• 1:1 support from a teaching assistant each week;
• up to two 45-minute sessions with and Educational Psychologist (EdPsych) each week;
• two hours per term of input from a Speech and Language Therapist (SaLT);
• one hour of group therapy run by an experienced member of staff or a qualified SaLT;
• ten hours of direct input from an Occupational Therapist (OT); and
• weekly input from an OT to cover planning and intervention into Mr Y’s physical and emotional wellbeing.
26. In September 2020 the Council adopted Mr Y’s EHC plan dated January 2019.
27. In October 2020 Mr Y started attending a part-time course run by a registered charity. It specialises in working with people with ASD.
28. In November 2020 the Council held a review of Mr Y’s EHC plan. The day before the annual review the Council received a copy of Mr Y’s views. Mrs X said that, in her views document dated 8 November 2020 and during the annual review she asked the Council for a personal budget. She also said the Council told her she would not be able to use a personal budget for Mr Y’s SEN provision.
29. At the beginning of December 2020 Mrs X emailed the Council and asked it to consider her request for a personal budget via direct payments. She said she wanted it to cover the provision of SaLT, OT and an EdPsych as set out in Mr Y’s EHC plan. The Council told Mrs X that it was waiting on the decision, and it would let her know as soon as possible.
30. In December 2020 the Council wrote to Mr Y and told him it would amend his EHC plan. Mrs X told the Council she was worried about Mr Y as he had not been getting the therapy listed in his EHC plan.
31. In early February Mrs X chased the Council for a response about her personal budget request. The Council told us that it considered Mrs X’s request and decided to award a personal budget to directly commission the SaLT and OT for Mr Y. The Council emailed its decision to Mrs X a week after her request. It told her that it agreed to a personal budget, and that it intended to pay the providers directly rather than making a direct payment to Mrs X.
32. In February 2021 the Council issued a draft amended EHC plan and sent it to Mrs X for her comments. The Council accepted that because of an administrative oversight it did not include Mr Y’s views in this draft EHC plan.
33. In March 2021 Mrs X emailed the Council and said that it failed to secure Mr Y’s therapies and education set out in his EHC plan.
34. In response the Council apologised for the delay in issuing Mr Y’s draft EHC plan. It also said that Mr Y’s previous authority agreed his attendance at his part-time course run by the charity. The Council said that Mr Y’s previous authority did not update his EHC plan following an annual review it held for him. It also said that some of the provision included in the plan was no longer suitable as Mr Y was no longer attending a college. The Council accepted that it had the duty to secure Mr Y’s therapy provision, and it said that because of Mr Y’s age this was not an easy task. The Council apologised for the delay and said the process was affected by the COVID-19 pandemic.
35. In March 2021 Mrs X wrote to the Council again and said that the delay in issuing Mr Y’s EHC plan would not be an issue if the provision he needed was in place. She said that he needed not only the therapy input, but also separate provision for education. Mrs X was also concerned as Mr Y’s EHC plan did not include any information about a personal budget by direct payment she requested during his annual review in November 2020.
36. In response the Council said that it considered Mrs X’s request for a personal budget, and it would use it to fund Mr Y’s therapies by commissioning the services directly. The Council also said that it could not secure some of Mr Y’s provision. This was because previously Mr Y attended a college and his EHC plan reflected this.
37. Based on the information from Mr Y’s previous council, the Council understood that he did not want to attend college so it had to change how it would deliver his provision. The previous council told the Council that it agreed with Mr Y that initially he would be placed on the charity run course.
38. In the same month the Council issued Mr Y’s final amended EHC plan following the annual review it held in November 2020. The Council said this final EHC plan contained Mr Y’s views. However, we have seen evidence that shows Mrs X had to request further amendments for Mr Y’s full views to be put into his final EHC plan.
39. The final EHC plan said that Mr Y would get 16 hours of provision through his charity-run course, and an additional six hours of education a week. The final EHC plan also said that Mr Y would get SaLT and OT. The Council also included information about Mr Y’s personal budget. It said that the Council would use the personal budget to commission Mr Y’s therapy directly.
40. In April the Council was able to secure Mr Y’s OT and SaLT provision alongside additional hours of education.
41. Mrs X was unhappy with the Council’s response and in April 2021 she complained to the Ombudsman.

Analysis

Delays in issuing Mr Y’s EHC plan following the review in November 2020

42. The Code says the Council has to issue the final amended EHC plan eight weeks after it send the amendment notice to the parents or the young person with EHC plan.
43. The Council sent its amendment notice to Mr Y in February 2021. This means that the Council acted without fault when it followed the statutory procedure and issued Mr Y’s final amended EHC plan in March 2021.
44. The Council was at fault for not including Mr Y’s views in the draft EHC plan it issued in February 2021 or the final EHC plan it issued in March 2021. Mrs X had to tell the Council to correct both the EHC plans and this has caused her avoidable time and trouble. It also caused her uncertainty about whether the Council had seen and/or considered Mr Y’s views when it was amending his EHC plan.

Council’s failure to secure Mr Y’s SEN provision between September 2020 and April 2021

45. The Council discovered Mr Y was moving into its area when Mrs X emailed it in June 2020. It received a formal notification from Mr Y’s previous council in August 2020. There is no evidence to show the Council took any action to secure Mr Y’s therapies or education until March 2021 when it consulted a number of OTs. As a result, it allowed the matter to drift.
46. Mr Y’s EHC Plan specified he should receive two hours of SaLT per term. Mr Y’s EHC Plan also specified he should receive OT on a weekly basis.
47. Mr Y did not receive any SaLT or OT from September 2020 to April 2021. This was not in line with his EHC Plan and is fault. The Council accepted that it was responsible for securing Mr Y’s provision set out in his EHC plan but said that the charity course could not provide all of Mr Y’s provision. While we understand that Mr Y’s education looked different as he moved from college to a charity course, we consider the Council could have secured Mr Y’s therapies separately. It did that in March 2021, and there is no evidence to suggest the Council could not have done this soon after Mr Y moved into its area.
48. Mr Y’s EHC Plan also specified the SaLT and OT would provide plans and training to upskill Mr Y’s support staff to effectively support Mr Y. The Council did not secure this provision until April 2021. Because of this the staff at Mr Y’s assisted living placement did not receive the training required to support Mr Y in line with his EHC plan until April 2021. This too is fault.
49. The fact that Mr Y has an EHC Plan means that he has a need for special educational support in order to be able to interact and achieve to the best of his abilities. In relation to the SaLT and OT specifically, Mr Y has not only missed out on direct support from the therapy he needed, but he has also missed out on indirect support. This is because his support staff did not receive the training they required from the SaLT and OT to help Mr Y.
50. The fact that Mr Y missed out on essential support means that an already vulnerable young person has been further disadvantaged.
51. Mrs X has also been caused an injustice because she has experienced distress and frustration because of the Council’s failure to support Mr Y properly in securing the provision he needed.
52. She has also been caused unnecessary time and trouble, as well as delay, in having to complain to the Ombudsman.
53. The Council should apologise to Mrs X and Mr Y for its failure to provide Mr Y with the support he needed and the distress and frustration this has caused Mrs X. The Council should also make them a financial payment to recognise the injustice they have been caused.

Council’s considerations of Mrs X’s personal budget request

54. The Council said that it considered Mrs X’s request for a personal budget and agreed to directly commission the services. There is no evidence to suggest that the Council explained to Mrs X the different ways in which it can deliver a personal budget. Mrs X wanted to receive direct payments and manage the personal budget herself, but I there is no evidence showing how the Council considered her request. This is fault.
55. Additionally, the Council’s Personal Budget Policy says it will offer parents early information about the purposes and extent of personal budgets and their implications. We consider the Council was at fault when it failed to adhere to its own personal budget policy and provide Mrs X with the information about personal budgets.
56. Because of this Mrs X believed the Council did not consider her personal budget request and caused her avoidable uncertainty. It also meant that Mrs X had to chase the Council for further explanations about how it considered her personal budget request and why the draft EHC plan did not show this information.
57. The Council also failed to include information about Mrs X’s personal budget request in Mr Y’s draft EHC plan, which compounded Mrs X’s uncertainty whether the Council considered her personal budget request.
58. The Council should make her a financial payment to recognise the avoidable uncertainty and time and trouble its actions caused to Mrs X.

Council’s management of Mrs X’s complaint

59. Mrs X said that she found the complaints process to be confusing as she received correspondence from different officers.
60. We looked at the Council’s complaint management policy and we found the Council followed it when it dealt with Mrs X’s complaint. The responses were sent in the timelines set out in the policy and were sent by a single officer, albeit this was not the complaints officer.
61. Because of this we cannot say the Council was at fault for how it handled Mrs X’s complaint.

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Agreed action

62. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X and Mr Y for its failure to provide Mr Y with the support he needed and the distress and frustration this has caused Mrs X;
• pay Mrs X £300 to recognise the distress and uncertainty the Council’s fault has caused her;
• pay Mrs X £150 to recognise the avoidable time and trouble she experienced;
• pay Mrs X £3,600 to recognise the loss of SEN provision required by Mr Y’s EHC plan between September 2020 and March 2021. Mrs X should use this money for the benefit of Mr Y; and
• share this decision with its workers to ensure they are aware of their duties in recording their personal budget decision making process, and the requirement to share information about personal budgets with the applicants early on in the process.

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Final decision

63. There was fault which caused Mrs X and Mr Y an injustice. The Council agreed to my recommendations and my investigation is now complete.

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Investigator's decision on behalf of the Ombudsman