Summary: the Council is at fault in that it failed to properly complete the review of an Education, Health and Care Plan in March 2021. It also failed to make clear arrangements for Occupational Therapy provision following that review. These faults caused the complainant and her daughter injustice and the Council will take the agreed action to remedy this.

The complaint

1. The complainant, whom I shall refer to as Ms B, says the Council failed to take the action it should have regarding her daughter’s EHC Plan following a SEND Tribunal decision issued in February 2020, particularly in relation to a delay of 10 months to secure the provision of occupational therapy. She also says it failed to take action following an annual review of the EHC Plan in March 2021. With regard to the actions following the annual review Ms B makes the following specific complaints that the Council failed to:

1. amend the plan in March 2021 when changes should have been made;
2. circulate documents for the review meeting until three days before the meeting;
3. provide independent travel training which had been agreed;
4. provide training to use assistance technology was agreed but has not yet been put in place;
5. complete a further OT sensory assessment that had been agreed.

2. Ms B says these failings have resulted in her daughter missing out on services and caused her unnecessary distress in the form of frustration and worry.

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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. 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)
5. 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)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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)

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How I considered this complaint

8. I discussed the complaint with Ms B and considered the written information she provided with her complaint. I considered all the information before reaching a draft decision on it.
9. As I have said above we cannot investigate late complaints unless we decide there are good reasons. The first part of Ms B’s complaint relates to actions the Council took following a Tribunal decision that was reached in February 2020. She complains that it took the Council ten months to put in pace OT provision agreed at that Tribunal. This implies the provision was in place by December 2020. Ms B did not however complain to this office about this until March 2022 which is more than 12 months before she complained to us. I do not consider there are grounds for me to exercise my discretion to consider this as a late complaint so have not done so. This statement does include reference to the events in 2020 as they provide background that is helpful in understanding what happened subsequently. The focus of my consideration has therefore been the actions taken regarding and following the review meeting in March 2021, an event that took place 12 months before Ms B complained to us.
10. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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 found

What should have happened

12. 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.
13. 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 SEND Tribunal can do this.
14. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
15. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
16. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. These confirm:
• 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
• Where a council proposes to amend an EHC plan, the law says it 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
• The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
• 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 eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
17. The SEN regulations require councils to circulate advice and information it obtains about a child at least two weeks before a review meeting. This must be circulated to the child/parents and professionals.
18. A personal budget is an amount of money made available by a council for parents and/or a young person to use to identify their own providers to make the provision identified in an EHC Plan. The statutory guidance on SEN provision states:
• 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;
• Personal budgets are optional for the child’s parent or young person but councils must prepare a budget when requested;
• the child’s parent has a right to request a personal budget when the council has completed an EHC needs assessment and confirmed it will issue an EHC Plan.
19. Education other than at school (EOTAS) may be considered for pupils for whom school or college is not suitable. EOTAS is not the same as home educating but is education arranged by a council which is delivered somewhere other than a school or college setting. Under an EOTAS arrangement the Council remains under a duty to make arrangements for the provision detailed in the EHC Plan.

What happened

20. Ms B’s daughter, X, is 21 years old. She is diagnosed with a number of conditions including Attention Deficit Hyperactivity Disorder, Autistic Spectrum Disorder (or traits of this) and a history of anxiety and mild Obsessive Compulsive Disorder.
21. X has an EHC Plan that was issued originally in May 2019 and was later amended following an appeal to SEND Tribunal. The amended version was issued in November 2020. Provision in it includes:
• four hours individual tuition a week (paid for with personal budget after tutor agreed/identified) and 24 hour access to online college;
• that the Council to organise an EP assessment, OT assessment and a technology assessment (to see what technology X needed to support her learning); and
• provision is detailed as EOTAS via online and personal tutor with a personal budget.

Appeal to SEND Tribunal

22. Ms B’s appeal to the SEND Tribunal was heard in February 2020. Her appeal was about the special educational needs identified, the provision identified and the placement named in the Plan the Council had issued in May 2019.
23. At the time of that appeal X was not in education. The Tribunal decided:
• provision of a minimum of one hour fortnightly appointments with a clinical psychologist appointments to be included in the EHC Plan;
• X should be seen by a psychiatrist to “…oversee her wellbeing and review her medication”; and
• other amendments that were agreed between the Council and Ms B. These included an annual Personal budget of just under £5K to meet needs identified in relation to social care and which was to be paid by the Council’s adult social care team. This was to be reviewed annually.

Review of EHC Plan in 2021

24. An annual review took place in March 2021. The Council says its records confirm that Ms B had received an invitation to the review meeting in February. The Council says its records do not confirm whether or not the relevant paperwork was sent to attendees. It says it is not clear what of the paperwork Ms B would have had from other sources. The Council says that at that time its internal systems did not have a procedure in place to ensure that paperwork was sent out where it was the lead agency for the review ie when it arranged the review meetings because a child was not in school. It says it is addressing this to ensure it does not happen in future and apologises to Ms B.
25. The notes of that review stated the recommendation of the meeting was “Maintain the EHC Plan without any changes”. That form is signed by a member of the SEN team. The note of the meeting confirms it was attended by Ms B, X, a social worker, two teachers, a psychologist and two officers form the Council’s SEN team. Some of these people also provided a written report to the review meeting.
26. In relation to Ms B’s complaint that independent travel training for X was agreed at the review, I can see in the notes of the review meeting that Ms B raised the issue: she confirmed on the form that X would potentially benefit from independent travel training. This is a standard question on the form. In a free-text box she said that the main reasons preventing X from travelling independently were “social anxiety, organisation/planning/time keeping as well as sensory needs”. The next part of the form is not clear on what would happen next. The next question asks “what steps are the school taking to increase the child’s independence with travel?” As X was not in school the response on this point was “not applicable”. The following question states “Confirm the steps to develop independence are agreed by all attending the meeting”. The response to that states “yes”. So, what was agreed is unclear as there were no steps in place to be agreed to. A later box on the form details what preparations are being made towards planning for independence in adulthood and this does not include independent travel training. I do note however that as part of the social care support package provided under the personal budget three hours a week are provided for “support with accessing meaningful activities in the community. Support with using public transport…”.
27. The notes of the review meeting state that a short-term target for the following 12 months was also “Persistence and practice at using assistive technology when X is not fatigued. Investigate others who can support X with this if required” (my italics). The form notes that the Council would investigate the assistive technology for X by May 2021. The Council later said that funding for support for X to use the assistive technology was included in the personal budget agreement dated August 2021. There is a section on that personal budget statement which says that the personal budget to meet support needs would be agreed in September 2020 when the details had been confirmed. I assume this is the section the Council says included the training for the assistive technology. So, it appears that by then the Council accepted X needed help to use the assistive technology. However, the Council says it did not receive details of the provision Ms B had identified to make the provision so it did not seemingly make a payment for this.
28. It appears that the review meeting did not intend to make any amendments to the Plan at that time. The Council should have written to Ms B to tell her this. There is no evidence that it did so and the Council confirms it is not able to locate such a letter. The Council accepts its records are limited and says it is addressing this.
29. The Council says the EHC Plan was amended in June 2022.

Personal budget

30. The EHC Plan dated November 2020 confirms a personal budget for clinical psychology, online course access and tuition, a laptop and social care. This meant that the budget was provided to enable Ms B to identify providers of these services for payment out of X’s personal budget.
31. I note there was a review of the personal budget in November 2020. This was attended by Ms B and three council officers. This confirms that by then the laptop had been purchased and X was attending the online college provision. The Council agreed to chase up an OT assessment. The personal budget was deemed to require no adjustments at that point. It was agreed that the personal budget for the academic year 2021/22 would be discussed at the EHC Plan review in March 2021.
32. In August 2021 a personal budget payment of just over £11K was agreed. The Council says the delay in making the payment until later in 2021 was due to the delay in identifying the OT and specialist online teaching provision: it was waiting for Ms B to identify these and provide details of costings so that these could be included. I have considered the 2021 personal budget document and confirm it does not specifically detail a budget for OT assessment or provision of OT services.
33. The Council says that much of the personal budget paid has not been used by Ms B. Ms B has provided a copy of a bank statement which demonstrates she has purchased services for X including tuition during the period from September 2021 to September 2022. She also says that it was agreed that there may be times when X is unable to manage all the tuition provided for and that it was agreed the Council would take back any excess funds this generated.

OT provision

34. Ms B says that following the Tribunal in February 2020 some OT was provided in December 2020. However, she says more sessions were agreed at the review meeting in March 2021 but Ms B says none were provided until the conclusion of the stage 2 complaint. The notes of the March 2021 review meeting state that at the point X still had two outstanding sessions of OT but that Ms B had requested more. The Council seemingly agreed to consider Ms B’s request for this.
35. I note that an OT provider quoted for providing X with a further six two-hour sessions in March 2021. According to email correspondence between Ms B and the Council these were agreed. However, the Council says that it later understood from the OT that Ms B had decided she no longer wanted these at that time. In July the Council asked Ms B about the provision again. In response Ms B said she had not heard from the OT provider and did still want the provision. It appears arrangements for the OT provision were then put in place but the email correspondence suggests that by later September 2021 there was still confusion about this with the Council asking Ms B what OT was required and for how many hours.

Ms B’s complaint to the Council

36. Ms B complained to the Council in November 2021. When she did not receive a response she asked for the matter to be escalated to stage 2 of the Council’s complaints procedure in December. The Council seemingly agreed to this request. It provide da response at stage 2 of the Council’s complaints procedure in February 2022. The Council’s response stated:
• it met its responsibilities with regards to provision following the tribunal by providing a personal budget to cover the cost of these provisions;
• apologised for the delay in sending out copies of reports sufficiently before the review meeting in March 2021 but said staff had left and could not therefore be investigated further;
• apologised for the delay in referring X to the OT service after the Tribunal decision in February 2020 but said it could not investigate why it took this long because relevant staff had left;
• OT sessions, assistive technology training and independent travel training are all provided for in the personal budget and therefore Ms B was responsible for arranging and securing this provision. It said the Council was waiting for Ms B to advise the Council of specific costs for these services so they could be approved and included in the budget. The Council advised Ms B could ask the Council for further advice on these services if she wanted this.

Was the Council at fault and did this cause injustice?

Delay in arranging OT following the SEND Tribunal decision in February 2020

37. Ms B complained to the Ombudsman’s office in March 2022. As I have detailed in paragraph 9 this is over two years after the SEND Tribunal issued its decision. I have carefully considered whether I should consider this complaint further but, whilst I recognise that Ms B was waiting for the Council to put the provision in place, I consider she could have complained to us about the much earlier than she did. I have not therefore decided to exercise my discretion to consider this complaint further as it is clear Ms B knew about this significantly before 12 months before she complained to us about it and she could have complained to us earlier.

Failure to amend the Plan in March 2021

38. The Council says it did not intend amending the EHC Plan following the review meeting in March 2021. This decision seems to reflect the notes of the meeting which concluded that no amendments were necessary. However, the Council should have written to Ms B informing her of its decision not to amend the Plan within four weeks of the review meeting to advise her of this. It did not do so and this is fault. This failure caused Ms B injustice in the form of lost opportunity and uncertainty as it denied Ms B the right to appeal to the SEND Tribunal about the decision not to amend.

Failure to circulate documents until three days before the review meeting

39. The Council was required to circulate documents at least two weeks before the meeting. Ms B says she did not receive these until three delays before the meeting and the Council says its records do not detail when they were circulated. Given the absence of evidence held by the Council, Ms B’s assertion that the documents were not circulated sufficiently in advance and the Council’s acceptance that it did not have a procedure in place at the time I conclude, on the balance of probabilities, that the documents were not circulated sufficiently in advance to meet the requirements laid out in the regulations. This is fault. This fault caused Ms B injustice as she had limited opportunity to fully consider the reports obtained before the meeting.
40. The Council’s poor record keeping is additionally in itself administrative fault which has caused Ms B injustice as it has frustrated her attempts to resolve her complaint to the Council.

Failure to provide independent travel training

41. Independent travel training is not referred to in the EHC Plan issued in November 2020. I consider the notes of the review meeting where this was discussed in March 2021 are not clear on this point. However, the meeting did not recommend that amendments were needed so I assume it did not intend amending the Plan to include this. I have already addressed the failures in relation to the actions following the review above. In addition it appears that provision was made for travel training within the social care personal budget as “support with using public transport” is provided for in that budget and is referred to in the support plan. On balance therefore I do not consider the Council failed to make provision for independent travel training though I also accept that Ms B was denied the opportunity to appeal the outcome of the review and may have included this in any appeal case.

Failure to provide training to use assistance technology

42. The evidence suggests that an assistive technology assessment took place relatively promptly after the SEND Tribunal decision in February 2020. A laptop was considered necessary, was provided for in the personal budget and the review of the personal budget in November 2020 confirms X had the laptop by then.
43. I consider there was some confusion around the later training to enable X to use the assistive technology loaded onto this laptop. It was discussed in the March 2021 review meeting but is not included in Section F of X’s EHC Plan. Ms B seems to have understood that the Council had agreed to identify someone to provide this training to X. However, the notes of that meeting seem to suggest that it would only consider putting training place if X needed this after trying to understand and use the technology without such training. Later on, in its response to Ms B’s complaint, the Council said this provision was included in the personal budget and it was waiting for Ms B to identify a provider in order to agree and include a specified amount to cover this provision in the personal budget.
44. Confusion seems to have resulted from the understanding of what was agreed on this at the review meeting and the lack of clarity regarding its inclusion in the personal budget in August 2021. As the Council did invite Ms B to contact it to discuss further as the outcome of the complaint I am not persuaded to make a finding of fault in this regard but I have asked it to clarify the situation with Ms B now.

Failure to complete an agreed further OT assessment

45. The 2020 EHC Plan included an OT assessment and Ms B confirms this was completed in December 2020. It appears there has been some confusion about OT provision and/or assessment since the March 2021 review. The evidence on this is unclear: the Council appears to have understood from the identified provider that Ms B had told the provider directly that she did not want further provision but she disagrees that she said this. It seems clear that when Ms B discussed this with the Council in July 2021 she said she did want this but then the Council did not seemingly know what provision was required. It is not correct for the Council to say the personal budget included OT as OT is not mentioned in any of the personal budgets I have seen. I therefore conclude there is no evidence to persuade me that the further OT assessment was arranged. This amounts to fault as it was included in the EHC Plan so the Council was required to provide it. This has caused injustice to X as she has missed out on the opportunity to have her needs in this respect assessed in a timely manner and uncertainty as she cannot know what other support an assessment may have recommended. It has also caused Ms B injustice in the form of frustration as she has had to repeatedly chase the Council up about this.

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Agreed action

46. To remedy the identified fault the Council will, within a month of the final decision on this complaint:
• pay Ms B £500 to recognise the injustice she was caused in the form of lost opportunity to appeal to the SEN tribunal and fully consider the paperwork before the review meeting and the frustration caused in having to chase up the Council regarding the OT provision;
• a further £200 to recognise the avoidable time and trouble she has been caused as a result of the Council’s poor record-keeping;
• pay X £500 to recognise the impact of the delay in arranging the further OT assessment as this has caused her frustration and uncertainty as she has not know whether she should have been receiving additional support with this for 18 months; and
• review and clarify the situation regarding OT provision to ensure it is arranged as soon as possible.
47. To address the systemic failings identified as a result of this investigation the Council will, within three months of the date of the final decision on this complaint, tell us and provide evidence of:
• how it will/has updated its procedures for EHC Plan reviews arranged by the Council to ensure that the correct processes are followed including distribution of assessments and reports before the review meeting and writing to parents with the outcome and decision as to whether to amend or not amend the Plan according to the required deadlines for this; and
• what steps it has taken to improve its record-keeping.

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Final decision

48. The Council failed to properly complete the process of the review of the Education, Health and Care Plan in March 2021. It also failed to make clear arrangements for Occupational Therapy provision following that review. These faults caused Ms B and X injustice and the Council will take the agreed action to remedy this.

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Investigator's decision on behalf of the Ombudsman