Summary: Mr and Mrs B complained the Council failed to finalise their two children’s amended Education, Health and Care Plans within the statutory timescales after its annual reviews. They also said it caused delays in paying the agreed personal budgets and its complaint’s process was flawed. The Council apologised and accepted it was at fault for errors and delays in finalising the EHC Plans and paying the personal budgets. It also accepts it failed to respond to some communication. We found the Council’s apology was not enough. It agreed to make payment to Mr and Mrs B to acknowledge the distress and time and trouble they experienced. It also agreed make payment for their children’s lost special education needs provision.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs B, complained about the Council’s handling of their two children’s Education, Health and Care Plans (EHC Plans). They said after the annual reviews of the EHC Plans, the Council failed to:
• make the amendments and finalise the EHC Plans within the statutory timescales;
• agree the personal budgets and make a direct payment to Mr and Mrs B before their children’s educational support was due to start; and
• failed to respond to her emails and consider their complaint about the direct payments as set out in the Council’s complaints policy.
2. As a result, Mr and Mrs B said they have experienced distress and uncertainty. They said this was made worse as they have had past issues with the Council. They also said they had time and trouble to get the Council to address and respond to their concerns, and their children missed out on some special educational needs provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

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How I considered this complaint

5. As part of my investigation, I have:
• considered Mr and Mrs B’s complaints and the Council’s responses;
• discussed the complaints with Mr and Mrs B;
• considered the information the Council provided in response to my enquiries; and
• considered the relevant law, guidance and Council Policy.
6. Mr and Mrs B 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

Education, Health and Care Plan (EHC Plan)

7. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
8. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
9. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process, including delays about personal budgets.
10. The Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years sets out the process and timescales a local authority must follow when considering a child or young person’s special educational needs and EHC Plan. This includes:
• an annual review of an existing EHC Plan must be held within 12 months of the date the EHC Plan was issued;
• after an annual review of a child’s EHC Plan, a local authority has four weeks to decide whether to maintain the current plan, amend it, or cease to maintain it;
• if a local authority decides to amend an existing plan, it must notify the parents of its decision. There is no statutory timeframe for how long this should take, but it should happen without delay;
• once a local authority have amended the EHC Plan it must be sent to the parents with an amendment notice;
• parent should be given 14 days to make comments on a draft EHC plan; and
• a final plan must be issued within eight weeks of the amendment notice.

Personal Budget and direct payments

11. The SEND code of practice: 0 to 25 years says a personal budget is the amount of money identified by the local authority that it can give to the parents in order to secure particular provision which is specified in a child’s EHC Plan.
12. Parents have the option of asking a local authority for a personal budget, which if requested, must be prepared by the local authority.
13. A local authority must set out the final allocation of the personal budget in the child’s EHC Plan. This must be sufficient to secure the identified provision.
14. If the personal budget is to be paid through a direct payment to the parents, this must also be included in the plan, along with any conditions attached.

What happened

15. Mr and Mrs B have a daughter (Child X) and a son (Child Y), who both have special educational needs. They each have an EHC Plan, which included personal budgets which were paid directly to Mr and Mrs B.
16. Mr and Mrs B have had several complaints about the Council’s handling of Child X and Child Y’s special educational needs provision in the past, which have been resolved by the Council, a tribunal or with the Ombudsman’s involvement.
17. In March 2021 the Council held annual reviews to consider Child X and Child Y’s EHC Plans. As part of this process, Mr and Mrs B asked the Council to make amendments to both EHC Plans, which included setting out the personal budgets within the Plans.

Child X’s EHC Plan and personal budget

18. Mr and Mrs B said they did not receive an amendment notice from the Council for Child X’s EHC Plan. They said they called and wrote to the Council several times but did not get a proper response to their concerns. So, seven weeks after the annual review, they complained to the Council.
19. The Council acknowledged Mr and Mrs B’s complaint and said it would consider the complaint under its stage two complaints procedure due to the historical issues.
20. A week later, the Council said it had assigned a new officer to Child X’s case, as its previous officer assigned to her case had left the Council.
21. The Council issued Child X’s draft EHC Plan 12 weeks after the annual review. Mr and Mrs B said they could not open the files, so the Council sent the plan again a week later which they could open.
22. The Council sent Mr and Mrs B Child X’s final EHC Plan. However, they asked for more time to comment on the draft version as they were given less than the required 15 days to comment. This was partly due the file access issues which resulted in less time to make comments. The Council agreed.
23. Within a week, Mr and Mrs B made their comments, and the Council issued a new draft EHC Plan. It issued its final EHC Plan shortly after which included the personal budget it would pay Mr and Mrs B for the start of the September 2021 academic term.
24. The Council paid Mr and Mrs B Child X’s personal budget for the summer 2020/2021 term, and autumn term for 2021/2022 in late October 2021. It paid the 2021/2022 spring and summer term in November 2021.

Child Y’s EHC Plan and personal budget

25. In April 2021, the Council sent an amendment notice to Mr and Mrs B for Child Y’s EHC plan. It said the amendments needed to include a request for Occupational Therapy and a personal budget.
26. In May 2021, the Council said it drafted Child Y’s proposed amended EHC Plan, but due to an error it did not send it to Mr and Mrs B.
27. In June 2021, the Council became aware of its error when Mr and Mrs B told the Council they had not received Child Y’s proposed amended EHC Plan. So, the Council sent Mr and Mrs B its proposed amended EHC Plan for Child Y.
28. The Council shared two further amended versions of the EHC Plan with Mr and Mrs B in July 2021. Mr and Mrs B also made a formal personal budget request to the Council for Child Y’s EHC Plan.
29. The Council completed Child Y’s amended EHC Plan in August 2021 which included a personal budget. It made a second version of the Final amended EHC Plan in September 2021, which included an additional request by Mr and Mrs B, which the Council agreed to include in the Plan.
30. The Council paid Mr and Mrs B Child Y’s personal budget for the whole academic year of 2021/2022 in late October 2021.

The Council’s response

31. In June 2021, the Council responded to Mr and Mrs B’s complaint. It apologised for the delay in providing its response and said it had kept them informed along the way. It found it had failed to follow the statutory guidance to progress Child X and Child Y’s annual reviews and explained:
• its EHC coordinator for Child X had left the Council and there were delays in confirming her replacement;
• it did not tell Mr and Mrs B about its intent to amend Child X’s EHC plan;
• Child X’s EHC Plan was finalised within eight weeks of issuing the amendment notice and it was therefore within the statutory timescales;
• it sent Mr and Mrs B its intention to amend Child Y’s EHC Plan to include Occupational Therapy and a personal budget within the four-week statutory deadline;
• it did not issue a draft amended plan and the final amended EHC Plan within the required eight weeks of its amendment notice. This was because its EHC Coordinator for Child Y wrongly believed he had sent the Plan to Mr and Mrs B; and
• it also found its Officer had failed to respond to Mr and Mrs B’s emails, which was unacceptable.
32. The Council’s response apologised for the delays and the impact this had had on Child X and Child Y. It said its SEND Team had accepted its findings and work was continuing to ensure it completed Child Y’s EHC Plan as soon as possible. It also said it was setting up a meeting between its SEND Team and a councillor to discuss the issues Mr and Mrs B had raised.
33. Mr and Mrs B were not happy with the Council’s response and asked the Ombudsman to consider their complaint. They said the Council had failed to meet the statutory timescales for Child X’s and Child Y’s amended EHC Plans, and Child Y’s plan was still not finalised. They also said the Council’s stage two process was flawed as it was not independent because the Senior Officer who responded works for the Council and it had failed to acknowledge its repeated mistakes.
34. In response to Mr and Mrs B’s continuing concerns about the Council’s handling of Child X and Child Y’s EHC Plans, the Council reviewed its stage two complaint response. It told them their complaint was upheld as it had failed to follow the process and timescales required to complete the amended EHC Plans. It also explained it had agreed to Child Y’s therapy provision, support strategies and provision for a specialist teacher to support him with social skills. However, it was not responsible for delays after this as it was waiting for Mr and Mrs B to provide occupational therapy costs.

Personal Budget for Child X and Child Y

35. Mr and Mrs B complained to the Council again in October 2021. They told the Council it had failed to pay the personal budgets as set out in Child X’s and Child Y’s amended EHC Plans. This meant they had not been able to put some of the agreed provision in place for the children.
36. The Council decided to respond to Mr and Mrs B’s complaint as an enquiry, and it would not be considered as a formal complaint. This was because it had asked its finance team to arrange for the personal budgets to be paid.
37. Two weeks after the complaint, the Council paid the personal budgets to Mr and Mrs B. Its finance team also explained the payments it had made.

Analysis

The amended EHC plans

38. The Council has agreed it was at fault for failing to comply with the statutory process and timescales following its annual reviews of Child X’s and Child Y’s EHC Plans. It said it failed to:
• send Mr and Mrs B an amendment notice for its intention to amend Child X’s EHC Plan;
• send Child Y’s amended draft EHC Plan to Mr and Mrs B; and
• complete Child Y’s EHC Plans within the statutory timescales.
39. The Council apologised for its faults to Mr and Mrs B. It also said its SEND Team had acknowledged the errors and would meet with a relevant councillor to discuss the issues which had been identified.
40. I agree with the Council’s view. It was at fault for the reasons set out in paragraph 38. It was not at fault for failing to meet the statutory timescales to complete Child X’s amended EHC Plan. This is because it did so within eight weeks of when the amendment notification should have been sent.
41. However, I found the Council’s apology was enough to remedy the injustice this caused. This is because I am satisfied Mr and Mrs B experienced distress due to the uncertainty its delays and errors caused, and they had some time and trouble to bring their concerns to the Council’s attention.
42. I found Child X and Child Y did not experience an injustice as a result of the Council’s delays. This is because the academic term had ended and their amended final EHC Plans would start in in the next school year.

The Personal Budgets

43. The personal budgets were included in Child X’s amended final EHC Plan in June 2021, and in Child Y’s amended final EHC Plan in August 2021. However, the Council did not pay Mr and Mrs B until late October 2021, which was two months after the specified provision should have started.
44. I have seen no good reasons the Council could not have made the payments at the start of the September 2021 academic term for Child X. The Council was therefore at fault for the delay this caused, which resulted in Child X missing out on some agreed provision for two months.
45. Child Y’s amended final EHC Plan was further amended in September 2021 to include additional provision Mr and Mrs B asked for. The Council had already set out most of the EHC provision in its August 2021 amended final EHC Plan for Child Y. However, Mr and Mrs B wanted it to include the additional provision before the personal budget was paid and a further final version of the EHC Plan was completed.
46. The Council should therefore have paid Mr and Mrs B the personal budget for Child Y shortly after it agreed to do so and issued its final version of his EHC Plan in late September 2021. However, it took a further month for the Council to make the agreed payment, which was also after Mr and Mrs B made a further complaint and a councillor chased the Council to make the payments. This is fault. I have seen no good reasons the Council could not have made the payments sooner than it did, which should have been shortly after it issued the final EHC Plan in September 2021. This meant Child Y missed out on some agreed EHC Plan provision for one month.
47. I also found Mr and Mrs B experienced some distress due to the uncertainty the Council’s delayed payments caused. They also had some limited time and trouble to bring their concerns to the Council’s attention.

The Council’s responses and complaints handling

48. The Council agreed its Officer had failed to respond to Mr and Mrs B’s concerns in Spring 2021. It found this to be unacceptable and apologised. This was fault.
49. I have considered the Council’s handling of Mr and Mrs B’s complaint about the EHC Plan delays. I accept it may have caused some confusion for Mr and Mrs B, however, I am not satisfied it was at fault for how this was handled. This is because:
• the Council can decide to consider a complaint under its stage two process, without first considering it informally, or stage one process;
• a manager from a different team within the Council and its monitoring officer reviewed its stage two response and provided Mr and Mrs B with its final response. I understand Mr and Mrs B feels this was not an independent review, however, I am satisfied this was in line with its Complaints Policy; and
• although, its initial response was provided later than it aims for in its Policy, it kept Mr and Mrs B informed and worked on amending the EHC Plan’s in the meantime.
50. Mr and Mrs B’s complaint about the personal budget payment delays was not accepted as a formal complaint by this Council. It said this was because it had asked its Finance Team to arrange for the payments. This is fault. This is because they complained as set out in the Council’s Complaints Policy, and they should therefore be given a response, which can be reviewed as set out in the Policy. Including, bringing their concerns to the Ombudsman’s attention if the matter was not resolved.
51. As the Council’s responded to Mr and Mr B, and it made the agreed personal budget payments shortly after, I am satisfied an apology from the Council is enough to remedy any injustice Mr and Mrs B may have had as a result of this.

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Agreed action

52. To remedy the injustice the Council caused to Mr and Mrs B, the Council should, within one month of the final decision:
1. apologise in writing, and pay £250 to acknowledge the distress the uncertainty its errors and delays caused Mr and Mrs B;
2. pay Mr and Mrs B £150 for the time and trouble to bring their complaints to the Council’s attention;
3. pay Mr and Mrs B an additional £400, to use as they see fit, to acknowledge Child X’s and Child Y’s lost special educational provision.
53. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. remind its staff about the process and statutory timescales for amending EHC Plans following an annual review;
5. remind its Send and Finance Team about the importance of ensuring payments of personal budgets for special educational needs are paid to parents without delay, and before the provision is due to start; and
6. share any outcomes of its intended meeting between its SEND Team and its councillor.

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Final decision

54. I have found fault by the Council, which caused an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman