Summary: Ms X complains the Council failed to review her son’s Education, Health and Care plan for three years, failed to put provision in place and failed to consult schools when requested. There was some delay and administrative fault by the Council but this did not affect Ms X’s son’s education. Ms X and the Council disagreed about the type of education to be provided which was a matter for the SEND Tribunal to resolve. An apology and modest remedy payment were recommended but declined by Ms X.

The complaint

1. Ms X complains on own behalf and on behalf of her son, whom I shall refer to as Y, about the way the Council considered Y’s special educational needs (SEN). Ms X complains:
• The Council issued an Education, Health and Care (EHC) plan in November 2018 but did not put provision in place until November 2019.
• The Council did not review the EHC plan for three years.
• The Council took two years to consult specialist placements only doing so in April 2020 when she consulted solicitors.
• The Council ignored her views about the education she wanted Y to receive.
• The Council delayed issuing an amended EHC plan after a Tribunal decision.
• The Council delayed paying invoices for applied behaviour analysis (ABA) after the Tribunal decision.
2. Ms X says she spent £13,000 on legal and ABA fees and the situation put immense stress on the family.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate:
• We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
• We cannot investigate complaints about what happens in education settings. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
• The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) 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.
• 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)
• We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

6. I have considered information provided by Ms X and the Council including:
• Complaint documents
• EHC plans and SEN file
• Consultations with settings.
7. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs (SEN) and disability code of practice: 0 to 25 years (‘The Code’).
8. 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.
9. Ms X 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

Factual background

10. In November 2018 the Council issued a final EHC plan for Y. This named a type of setting ‘Early Years’. At that time Y was receiving ten hours per week applied behaviour analysis (ABA) therapy privately funded by his parents. Section F (special educational provision) stated Y would be integrated into a nursery provision with a target date of November 2019 and listed the support he would receive there.
11. The Council consulted Ms X’s choice of nursery in January 2019.
12. Ms X contacted the Council in February 2019 enquiring ‘where we are with Y’s placement’. Ms X said she understood the Council was clarifying funding with a nursery. Ms X mentioned consulting a specialist placement ‘in case Y needs to access this provision’. Ms X also asked about accessing a personal budget as the nursery place was only part-time. Ms X wanted to use the personal budget to top up the ABA she was funding from two to four hours per day.
13. In March 2019 the Council approved funding for eight hours per week teaching assistant (TA) support. Y started nursery in Easter 2019.
14. In May 2019 a Council officer spoke to Ms X. Ms X wanted Y to access his full quota of banded funding and for some ABA therapy to be funded. Y was attending nursery two hours per week with a view to increasing this to four hours. Ms X was considering Y attending a special school in September 2020 when he was due to start Reception year.
15. In June 2019 Ms X asked the Council why funding was not discussed in December 2018 and said she wanted the current ABA therapy to be funded by the Council. She was told this would need to go to a panel.
16. In October 2019 a meeting was held at school. Ms X provided an annotated EHC plan in which she indicated she wanted Y to have fulltime ABA trained support. Ms X says this was not an annual review meeting but just a ‘chat’. The Council says it was an annual review and a Council officer attended.
17. The Council did not issue a decision letter after the ‘review’ meeting stating whether it was going to amend the EHC plan but it did reissue the final plan in November 2019 with a specific nursery named in Section I. This gave Ms X a new right of appeal. Ms X says the failure to issue a decision letter supports this was not a review.
18. On 28 November the Council confirmed it had considered the request for a personal budget for ABA, but decided needs were already met by the existing nursery provision.
19. The Council has acknowledged in its complaint responses the October 2019 meeting did not fully comply with the requirements of an annual review. However, Ms X did gain a right of appeal when the EHC plan was reissued. The Council says Ms X did intend to appeal and so a mediation meeting was held on 15 January 2020. Ms X says it was agreed to hold an emergency review in February, but this did not happen. The Council suggested Ms X discuss with the nursery whether it was willing to allow ABA tutors work as Y’s TA. The Council also agreed to consult a resourced provision.
20. Y’s nursery said they had already employed a TA to work with Y so could not agree to employing his ABA tutors. The nursery agreed ABA tutors could visit nursery once a week (at Ms X’s expense). Ms X said if Y did not have an ABA trained TA she wanted Y to attend a specialist placement.
21. In March 2020 the Council said it would consider holding an annual review meeting and it would consult special schools.
22. The Council consulted three schools in March 2020, the existing nursery in May 2020, one of the schools again in August 2020 and another school in October 2020.
23. In April 2020 Ms X told the Council she wanted to defer Y starting school until September 2021. Ms X intended to home-school Y until he got what she considered was the right provision for him. The Council agreed to Y deferring school entry by a year.
24. An emergency annual review meeting was held in June 2020. The Council agreed to re-issue the EHC plan again and name the current nursery as the placement from September 2020 to ‘release a right of appeal’. Y would be entitled to fifteen hours education at nursery and parents were going to continue with privately funded ABA. Ms X then appealed to the SEND Tribunal.
25. The Council issued an amended final plan in February 2021 following a Tribunal order. The plan was incorrectly dated January 2021. This named a special school in Section I but stated Y would receive home-based ABA funded by the Council while he was not able to access School due to COVID-19. Once school was reopened Y would transition from home-based ABA into full-time school with the transition to be completed within two terms.
26. The Council says the EHC plan should have been issued by early February so there was a three-week delay on its part.
27. Ms X complains the Council did not put ABA funding in place until early May. The Council acknowledges delay but says this was because the ABA invoices were unclear about what had been provided with no breakdown provided. Ms X says the error in invoicing lay with the Council. Once the invoices were clarified funding was backdated. The Council offered Ms X a remedy payment of £200 to acknowledge the impact of the delay, but Ms X declined this payment.
28. Ms X complained to the Council in April 2021. The Council partially upheld the complaint in that the October 2019 meeting did not comply with usual annual review requirements and the Council did not follow this up. This meant Ms X did not have an opportunity to challenge the format of the meeting if she felt it did not deliver what was needed from an annual review. It also acknowledged poor communication at times and that the 2021 EHC plan had been dated incorrectly. It did not find any significant injustice as education was in place throughout and funding backdated.
29. The Council told me it has new SEN leadership and is carrying out a service review which would include use of personal budgets.
30. The Council acknowledged in its response to my enquiries that it had not kept copies of letters showing a right of appeal had been provided and there were no minutes for review meetings.

Relevant law and guidance

31. 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.
32. A personal budget is an amount of money identified by the Council to deliver provision set out in an EHC plan where the parent is securing that provision. The child’s parent has a right to request a Personal Budget when a Council has completed an EHC needs assessment and confirmed it will issue a plan or during a statutory review of the plan. Councils must secure the agreement of a setting if any provision is to be delivered on their premises.
33. Councils must consider requests for Personal Budgets but do not have to agree them if the Personal Budget would have an adverse impact on services arranged by a Council or it would not be an efficient use of its resources.
34. Reviews of EHC plans must take place at least annually and must include a review meeting. Councils can request early years settings hold the review meeting on their behalf.
35. The Code says Councils should consider reviewing an EHC plan for a child under five at least every three to six months to ensure the provision remains appropriate. Such reviews can be streamlined and will not necessarily require the attendance of all professionals.
36. Parents and relevant professionals must be given at least two weeks notice of the annual review meeting and advice and information must be gathered about the child and circulated two weeks before the meeting. A report must be prepared within two weeks of the meeting setting out recommendations for changes to the EHC plan. Within four weeks of the review meeting the Council must decide to amend the plan, keep the plan the same or cease the plan and notify the parent and setting of its decision. It must tell the parent they have a right of appeal about the decision made. Where a council proposes to amend an EHC plan, the right of appeal is only engaged when the final amended plan is issued.
37. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of transfer to primary school.
38. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is the subject of the appeal or ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan and appeals, we cannot seek a remedy for lack of education after the date the appeal right arose where the loss of education relates to the suitability of the provision. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Analysis

What I have investigated

39. Ms X’s complaint is late. She has complained about events dating back to 2018 but did not complain to us until August 2021.
40. I have exercised discretion to investigate the complaint from October 2019, when the Council held a review of Y’s EHC plan. The Council has investigated this period and there is enough information for me to make a sound decision.
41. I have not investigated the period from November 2018 to October 2019 when Ms X says the Council failed to put in place provision in the EHC plan. This is too long ago and I would have expected Ms X to have raised her concerns at the time.
42. I will not investigate the suitability of the provision, for example whether the Council should have funded ABA. Ms X had a right of appeal against the EHC plans issued in November 2018 and November 2019. I would expect a complainant to use appeal rights if they disagree with the provision in an EHC plan. The Ombudsman cannot determine what provision a child needs, only the Council or Tribunal can do this.

Reviews of the EHC plan

43. The Council has acknowledged the review meeting in October 2019 was not compliant with the Regulations and Code. Preliminary actions were not taken and there are no minutes or report. The Council did not issue a decision letter stating whether it intended to amend the plan or keep the plan the same. This was fault. The Council did provide Ms X a right of appeal by reissuing the plan, so Ms X did not lose her ability to challenge the Council’s decision not to amend the plan.
44. There are also no minutes for the June 2020 emergency review meeting. This is fault. Again, the Council did provide Ms X with a right of appeal.
45. The Council did not consider reviewing Y’s EHC plan more frequently than annually although he was under five years. However, as Ms X had appeal rights in 2018 and 2019 which she did not use, I cannot see that more frequent review would have led to different provision being included in the plan.

Personal budget

46. The Council did consider Ms X’s request for a personal budget for ABA but refused this as it considered the nursery could meet Y’s needs. Councils are allowed to refuse personal budgets where they would incur additional cost. The Ombudsman cannot question professional judgments of Council officers. (Local Government Act 1974, section 34(3), as amended) Ms X could have appealed the decision not to fund ABA in November 2019 and indicated she intended to do so. The Council mediated and agreed to ask the nursery if it would employ an ABA tutor as Y’s TA. The nursery did not agree to do so. This was not fault by the Council. If Ms X was unhappy with the provision she should have proceeded with an appeal.

Consultation with schools

47. As Y was due to transfer to primary school in September 2020 the Council should have consulted schools in time to name a specific school by 15 February 2020. This should have been an action from the review meeting in October 2019. The Council missed this deadline; this was fault. However, Ms X then decided she wanted to delay Y’s transfer to school by a year (Y was not of compulsory school age until Easter 2021). I find no significant injustice to Y from the Council’s delay in consulting schools in 2019/2020 as once Y’s entry to school was deferred, the Council did not need to name a school until 15 February 2021.

Delay implementing Tribunal order

48. The Council has acknowledged there was a three-week delay issuing the amended final EHC plan and then a further delay paying ABA invoices. The Council says as ABA was already in place and it was just the funding that it was taking over, this did not cause Ms X significant injustice because the payments were backdated. I agree. The delay did cause Ms X anxiety, but the Council has apologised to Ms X and offered a financial payment for the impact of the fault, which Ms X declined.

ABA fees and legal expenses

49. As I have not investigated or found fault with the provision in the EHC plan it is not appropriate for the Ombudsman to recommend any reimbursement of Ms X’s expenses. These arose from a disagreement about the type of special educational provision Y should receive which could only have been resolved by an appeal to Tribunal. It was not fault by the Council that Ms X did not use her appeal rights until mid-2020.

Service improvements

50. The Council has accepted my findings and confirmed it has already made service improvements to its handling of annual reviews:
• It has revised its annual review process and introduced new guidance / training during January / February 2022.
• Since December 2021 it has a system in place to ensure decision letters are sent within four weeks of the annual review process and it monitors this performance.
• It has a system to diarise annual review deadlines which are monitored monthly.
• It has a Tribunal officer with overall oversight of actions arising from Tribunal orders.

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Remedy

51. I recommended the Council apologise and make a financial payment of £400 to reflect the impact of the fault, but Ms X told me she does not wish to receive an apology or payment.
52. I have not recommended further service improvements as the Council has already implemented changes.

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Investigator's decision on behalf of the Ombudsman