Summary: Mrs X complained the Council failed to meet the provision set out in her daughter, Y’s, Education, Health and Care Plan (EHCP) and delayed reviewing Y’s EHCP, causing distress. We find the Council at fault. We recommend the Council apologise to Mrs X, make payments for distress and missed provision, and act to prevent recurrence.

The complaint

1. Mrs X complains the Council:
• Failed to meet the provision set out in Y’s EHCP.
• Delayed in its review of Y’s EHCP.
• Failed to properly consider her application for a personal budget.
• Handled her complaint poorly and not in line with its usual process or timeframes.
2. Mrs X says Y and her have experienced serious uncertainty and distress as a result of the Council’s actions and Y has not had the provision she was entitled to.

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What I have and have not investigated

3. I have investigated the complaints above, but I have limited my investigation as explained below.
4. I have not considered any matters linked to Mrs X’s appeal to the SEND Tribunal, covering the period from March 2021 until the date of the appeal decision on 11 November 2021. Because this is outside our jurisdiction.
5. We cannot investigate complaints brought to us more than 12 months after the complainant ought to have been aware of reason to complain. We are only able to exercise discretion if there are good reasons to do so.
6. Mrs X contacted the Ombudsman in May 2022, meaning events that took place before May 2021 have been brought to us late.
7. However, Y’s EHCP review started in January 2020 and was completed in March 2021. Mrs X then appealed to the SEND Tribunal and complained to the Council in May 2021. By November 2021 Mrs X had the outcome of her appeal to the SEND Tribunal, and an Independent Review Report was produced on her complaint. Mrs X then approached the Ombudsman in May 2022.
8. While Mrs X did not contact the Ombudsman within 12 months of things first going wrong, any potential fault and injustice was ongoing from January 2020 to November 2021. This being the case, I find it is reasonable to exercise discretion to investigate matters from January 2020.
9. Mrs X has said Y’s school was not meeting her EHCP provision from as far back as 2019. This aspect of Mrs X’s complaint is late as she did not bring it to the Ombudsman until May 2022. We cannot investigate what happens in schools and I have seen no reason why Mrs X could not have complained to us about the Council’s part sooner. I have not exercised discretion to investigate this element of her complaint.
10. Mrs X has also raised concerns about how the Council responded to her freedom of information requests. Complaints of this nature are better dealt with by the Information Commissioner's Office (ICO) and so I have not investigated this aspect of Mrs X’s complaint.

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The Ombudsman’s role and powers

11. 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)
12. 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)
13. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
14. The Information Commissioner's Office (ICO) considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
15. SEND is a tribunal that considers special educational needs. We cannot investigate a complaint when someone has appealed to a tribunal. However, we may investigate whether there may have been a delay in the process which led to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
16. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
17. 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.
18. 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

19. I spoke to Mrs X about her complaint and considered information she provided. I also considered information received from the Council.
20. Mrs 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

Relevant law and guidance

21. A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
22. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (the Code) sets out the process for EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• Councils must review EHCPs at least annually, though they may do this earlier if a child’s parent asks for it.
• Within 2 weeks of the review meeting the school must provide a report to the council with any recommended amendments.
• Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or end the plan. It must tell the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
• The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content.
• When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
• Where the council does not agree the suggested changes it may still issue the final EHCP.
• In any event the Council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the amendment notice. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
23. Councils have a duty to secure the named special educational provision in an EHCP for a child or young person. The Courts have said councils owe the duty to arrange provision personally to the child and this 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)

Personal budgets

24. A personal budget is an amount of money identified by the local authority to deliver provision set out in an EHCP where the parent or young person is involved in securing that provision. The personal budget regulations say councils may not make direct payments to funding a place at a school.
25. Parents and young people can request a personal budget when the draft EHCP is being prepared, reviewed or re-assessed. The Code says councils must provide information about organisations that may be able to provide advice and assistance to help parents and young people to make informed decisions about personal budgets.
26. Where a council decides not to make direct payments or provide a personal budget, it must tell the child’s parent its decision in writing, giving reasons. Parents have a right to request review of the decision. The Code says councils must consider any representations made and inform the parent in writing of the outcome of the review, giving reasons.

The Council’s complaint process

27. The Council’s website says it will talk to complainants about their complaints and respond within 10 working days. If it is unable to respond within 10 working days, it will explain why. It explains complaints needing a complex investigation will usually take between 20 and 30 working days.
28. Once the Council has finished its investigation it will explain its findings and what, if anything, it intends to do next.
29. If a complainant is unhappy with the Council’s response, they can explain why and ask it to review their complaint at stage two of its process. If the Council decides there is no reason to escalate the complaint to stage two, it will explain this within ten working days.
30. If a complainant has exhausted the Council’s complaint process but remains unhappy, they can refer their complaint to the Ombudsman.

What happened

Background

31. Y has SEN and has an EHCP. This EHCP provided for:
• Access to a personal, visual timetable and advanced warning of changes to routines with a key adult assigned to support learning and social/emotional needs.
• Access to a fully differentiated curriculum with additional support and interventions to target gaps in Y’s knowledge.
• Additional adult support at break and lunch times to aid and facilitate interactions with peers and the less structured time as well as a meet and greet at the start of the day.
• Weekly cognitive behavioural therapy sessions.
32. Y attended secondary school on an agreed reduced timetable until July 2019, when this was due to be increased to full time. At this stage it became clear Y would need extra help with certain subjects before she was due to sit her exams. Y’s EHCP was supported by an Individual Education Plan (IEP) which set out specific learning objectives and strategies, as well as the cost of these.

This complaint

33. Unhappy with Y’s provision, on 17 January 2020 Mrs X asked the Council to review her EHCP early. At this point she also asked for evidence of all tracked spending to show how the provision set out in Y’s EHCP had been met. Mrs X made two freedom of information requests around this time which she says were not correctly responded to.
34. In an email of 20 January, Mrs X told the school and the Council she believed Y had not received all the EHCP provision. Specifically, Mrs X explained Y’s school had stopped providing a teaching assistant in all of Y’s classes and had not commissioned an OT assessment to advise on Y’s sensory needs. Mrs X also asked the Council to arrange an early review of Y’s EHCP for March of that year.
35. The Council contacted Y’s school on 28 February asking it to arrange an early EHCP review meeting. The school agreed it would hold an early review meeting before the April bank holiday but before this was arranged, Covid-19 forced a national lockdown and a partial closure of schools.
36. The Council did not hold a review meeting for Y’s EHCP until 21 October 2020 – nine months after Mrs X’s request for an early review, and eight months after it agreed to the request. During this review meeting, Mrs X says the Council refused to consider independent reports she provided relating to Y. However, the Council agreed Y would need an OT assessment to update her EHCP.
37. During this meeting, Mrs X also says she explained she did not believe the school was meeting Y’s provision and she would like to receive a personal budget so she could oversee how funding was being spent. Mrs X says the Council told her she would not be considered for a personal budget without giving any reasons for this.
38. Mrs X asked for time so she could arrange for an advocate to look over the review documents. The Council then rescheduled the review for completion on 2 December.
39. On 23 February 2021 the Council issued a notice to amend Y’s EHCP. The Council then issued a final EHCP on 3 March – 13 months after the Council agreed to review it. This EHCP provided for:
• Access to a personal, visual timetable with advances warning of changes to routines with a key adult assigned to support learning and social/emotional needs.
• Extra adult support at break and lunch times to aid and facilitate interactions with peers and the less structured time as well as a meet and greet at the start of the day.
• Carefully considered lesson content to avoid distressing Y, or for her to be allowed to withdraw from the lesson.
• Constant access to a teaching assistant to support Y within the classroom.
• Training for all Y’s teachers in meeting the needs of young people with Autism.
• Weekly cognitive behavioural therapy sessions.
40. Mrs X decided to appeal to the SEND Tribunal because she was unhappy with the Council’s refusal of a personal budget and for not considering all the reports she had provided.
41. On 8 May 2021, Mrs X complained to the Council. Mrs X explained:
• She had been trying to get Y’s EHCP review completed since January 2020.
• Y’s IEP outlined specific interventions with ring-fenced funding for her specifically, but the school had not been providing this for over 18 months. She said the Council had been aware of this since January 2020 but had failed to ensure the funding was spent correctly.
• She was trying, through a freedom of information request, to find out exactly what funding had been misspent but, specifically, Y had not been provided with two catch up sessions per fortnight in science and either history or geography, or an OT assessment.
• The Council had failed to secure an OT assessment as had been identified as necessary to update Y’s EHCP. This meant Mrs X could not yet bring her appeal to the tribunal.
42. Mrs X emailed the Council again on 11 May to explain she also wanted to complain it refused to consider her request for a personal budget without providing reasons or giving full consideration.
43. On 6 June, Mrs X complained to the Council again, explaining she was unhappy with how it had responded to her freedom of information requests.
44. The Council responded to Mrs X’s complaint on 5 August. It explained:
• It was for the SEND Tribunal to decide whether the ring-fenced budget had been correctly used to meet Y’s needs.
• Mrs X was entitled to request a personal budget, but the Council could refuse this in certain circumstances, and gave some general information about personal budgets.
• It upheld Mrs X’s complaint and committed to continue to work with Mrs X and Y to ensure Y’s needs were met and would explore the possibility of agreeing a personal budget.
• Mrs X could complain to Y’s school directly if she felt it had failed to meet her needs.
45. Unhappy with this response, on 12 August, Mrs X asked the Council to reconsider her complaint at stage two of its process.
46. An Independent Review Report was produced at stage two of the Council’s complaint process in November 2021. This explained:
• Issues around the timescales for Mrs X’s freedom of information requests should be considered by the ICO.
• There was no evidence the Council had investigated why the school had not implemented the support identified in Y’s EHCP and covered by ring-fenced funding. Contrary to the Council’s stage one response, this is the Council’s responsibility.
• Although the Council’s stage one investigation upheld Mrs X’s complaint, it did not suggest a remedy or any timescales to put things right.
• The Council’s stage one investigation gave some brief information about personal budgets but offered no practical way forward in terms of next steps. It also failed to acknowledge Mrs X was not given accurate information about personal budgets during the review of 21 October 2020.
• The Council’s stage one investigation did not acknowledge the length of time taken to review Y’s EHCP or provide any explanation for the delays. It was unclear in Mrs X’s complaints whether she was mentioning the delays as background or specifically complaining about them, but the Council failed to look into this and offer reasonable or fair conclusions.
• The Council’s stage one investigation failed to acknowledge the delays in securing an OT assessment for Y.
47. The report recommended the Council provide full stage one responses to the issues it had failed to investigate previously. It also recommended Mrs X write to the Council setting out exactly what she wanted investigated, contact the ICO, and refer her complaint to the Ombudsman.
48. On 11 November, the SEND Tribunal issued a decision on Mrs X’s appeal and the Council issued another amended EHCP on 20 December 2021. This took account of OT assessments that were completed in June 2021 and August 2021 and EP assessments from August 2021 and provided for:
• A fully differentiated curriculum for Y, to be devised by a qualified teacher to target extensive gaps in all subjects, and specifically science and history.
• Appropriately differentiated work.
• Training for all teaching staff working with Y, provided by a specialise teacher, EP, or Autism Specialist.
• Alternative means of recording in exams as well as daily lessons that require a high level of writing, as well as a laptop at all times.
• Occupational therapy to identify, support and set up a typing skills programme for Y.
• 1:1 catch up sessions in science, geography and history.
• Weekly cognitive behavioural therapy sessions with a suitably trained adult or autism counsellor.
• Support from a teaching assistant at all times during the school day to meet and greet Y, support her learning, escort her between lessons and support her at break and lunch times.
• Regular curriculum-based assessments to identify any gaps in Y’s knowledge which will then be addressed.
49. On 3 February 2022 the Council wrote to Mrs X to confirm it had accepted all the recommendations made in the report. It also used this as an opportunity to further address Mrs X’s complaints, as recommended in the report. It explained:
• Funding is provided to cover the provision in EHCPs and the mechanism for reviewing any issues is EHCP reviews. If schools and parents cannot resolve issues about provision together, the Council will step in to request evidence of provision and act as needed. This might be challenging the school where there is evidence of poor practice or reviewing EHCPs if resources are insufficient to meet provision.
• In Y’s case, the issues regarding provision were raised in her EHCP review and actions were focussed on changing the EHCP, rather than immediate changes to the provision.
• The Council requested information about use of funding from the school but did not escalate this or challenge the school when it did not get a response. The Council is now having regular meetings with Y’s school to monitor things.
• There was a delay in responding to Mrs X’s freedom of information requests. The Council has reviewed its process and will be making improvements to this.
• The Council is aware it has failed to meet statutory guidelines and has set up a project to improve its processes to comply with the Code.
50. Mrs X referred her complaint to the Ombudsman in May 2022.
51. In response to our enquiries, the Council explained:
• Mrs X raised concerns about Y’s mental state in school in early 2020 and asked it to review Y’s EHCP early. Y’s school decided to hold a pre-review meeting with Mrs X ahead of this and the EHCP review was then delayed due to the COVID-19 pandemic.
• Y’s EHCP review meeting was scheduled after students returned to school in October 2020 but was not completed until December 2020 as Mrs X wanted an advocate to look over the documents for her. There was then a delay as the Council did not issue a notice to amend until February 2021.
• Personal budgets can only be requested in specified windows. Mrs X asked about personal budgets in September 2020 and the Council responded by explaining the process in more detail in October 2020.
• There was a delay in responding to Mrs X’s complaints at stage 1 and the Council is sorry for this. There was also a delay in sending the stage 2 review report to Mrs X. This was down to various staffing and procedural changes.
52. In response to a draft of this decision, Mrs X said:
• She feels we should be exercising our discretion to look back further than we have done.
• The Council provided misinformation at each stage of the process, which included unnecessary delays, missing paperwork, general mistakes and a failure to follow processes correctly.
• The Council has failed to take appropriate action following the decision of the tribunal and has not corrected historic issues.
• Based on her experience, she does not have confidence the Council will improve its processes to comply with the Code.

Analysis

EHCP provision

53. Mrs X complained the school did not provide teaching assistant support, OT assessment and catch-up sessions from January 2020. The EHCP that was active at the time said the Council should target gaps in Y’s knowledge but did not specify any subjects. This was not a part of Y’s EHCP provision until November 2022 and so I cannot say the Council is at fault for failing to meet this provision.
54. The EHCP in place in January 2022 did not provide for TA support. From February 2021, the Council was to provide teaching assistant support. Mrs X has not complained teaching assistant support was missing after that time so I cannot find the Council at fault for failing to secure this provision on this basis.
55. Y’s EHCP did not specify provision for an OT assessment or any OT sessions until November 2022. As this did not form part of Y’s EHCP provision until November 2022, I cannot say the Council is at fault for not arranging it before then.

Time taken to complete Y’s EHCP review

56. The Council asked Y’s school to review her EHCP on 28 February 2020 and it agreed to hold a meeting before the April bank holiday. The Council has said Covid-19 school closures were responsible for delaying this meeting. While I appreciate school closures may have accounted for some period of delay, the Council has given no good reason why it needed to wait until schools re-opened before rescheduling the review meeting, noting this could have taken place virtually.
57. As a review meeting had not taken place, and the Council was not obliged to carry out an early review, the statutory time limits to complete the review did not come into force. For this reason, I could not say the Council was at fault for failing to complete the emergency review within any specific timeframe.
58. However, the Council had agreed to complete a review and it would have been good practice to follow through on this promise. Failure to do so, or to explain to Mrs X why Covid-19 prevented it, is fault and would have caused real uncertainty to Mrs X at a time when she had already explained she had concerns about the provision Y was receiving. This is injustice.
59. Y’s next scheduled annual review fell due in June 2020. If the Council completed this in line with the statutory time limits, Y’s EHCP would have been finalised by September 2020 at the latest. However, the Council did not review and finalise Y’s EHCP until March 2021. This is fault. The March 2021 EHCP added extra teaching assistant support and, if not for the delay, Y would have had this in place six months sooner. This is injustice.
60. The delay also meant Mrs X could not appeal the EHCP until six months later than if it was finalised on time. As needs may change over time and, as the tribunal outcome took account of OT and Educational Psychologist (EP) assessments that were not available in September 2020, I could not say, even on balance, it is likely Y would have got the same tribunal outcome earlier but for the Council’s delay. However, this fault would have caused real uncertainty for Mrs X and Y, which is injustice.
61. While there were some additional delay as Mrs X asked for time to consult with an advocate, my view is the Council holds overarching responsibility for the lengthy delays.
62. In response to Mrs X’s complaint the Council has confirmed it has set up a project to improve its process and to comply with statutory time limits. I think this is a sufficient remedy to prevent recurrence.
63. The Council said it needed an OT assessment in October 2022 but then issued a final EHCP without getting this or explaining why it decided not to. This amounts to fault. Mrs X suffered uncertainty as a result. This is injustice. However, I cannot say this delayed Mrs X’s right to appeal; Mrs X remained free to appeal once the Council issued the final EHCP.

Personal budget request

64. When considering complaints, if there is a conflict of testimony or evidence, we make findings based on the balance of probabilities. This means weighing up the available relevant evidence and basing our findings on what we think was more likely to have happened. Where evidence is incomplete, we may not be able to make findings.
65. Mrs X has said the Council told her she was not eligible for a personal budget during the review meeting of 21 October 2020. The Council has not addressed this but has said Mrs X raised queries about personal budgets in September 2020 and received general information about the process the following month.
66. The Council has not given its view on what it told Mrs X during the review meeting of October 2020 or produced the meeting minutes so I can see what was discussed. This amounts to poor record keeping, which is fault. This also means I cannot make findings on what the Council told Mrs X about personal budgets. While I cannot say what the result of Mrs X’s application would have been if she was given correct information in October 2020, the Council’s lack of records would have caused further uncertainty to Mrs X which is injustice.

Complaint handling

67. The Council’s stage one complaint response came almost three months after Mrs X first complained. This is outside of the timescales published on the Council’s website. While Mrs X’s complaint is particularly complex, and she submitted it in three parts, I have seen no reason why the Council could not have responded in line with its usual timescales. Failure to do so is fault and this would have meant Mrs X spent more time in the complaint process than necessary, which is injustice.
68. The complaint response was vague and did not address all the points Mrs X had raised. It is unclear if the complaint handler discussed the complaint with Mrs X to understand the issues before responding, but a lot of her points remained unanswered. This is fault and would have caused further uncertainty and distress for Mrs X at a time when the Council would have known she was already concerned about its processes. This is injustice.
69. While the complaint was upheld at stage one, no tangible resolution was put in place. This is not good practice and would have added to Mrs X’s distress about the situation as it presented no clear way forward for her.
70. The Independent Review Report the Council commissioned highlighted several failings with the Council’s complaint handling. It took the Council a further three months to write to Mrs X explaining it had accepted these recommendations and to set out its view of the issues it had previously failed to investigate. This is fault as it is outside of the Council’s published timescales and would have added to Mrs X’s uncertainty as well as meaning she spent more time in the process.
71. In its complaint response of 3 February 2022, the Council accepted it had responsibility to ensure Y’s school was correctly using the funding to meet the provision set out in her EHCP but did not consider whether any remedy was due for missed provision. It also accepted delay in the EHCP review process but did not consider any remedy for Mrs X. Had it done so, Mrs X may not have had to escalate her complaint to the Ombudsman. This is fault and has meant Mrs X was put to additional time and trouble in the complaint process which is injustice.

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Agreed action

72. The Council has agreed to our recommendations and will:
73. Within one month of my final decision:
• Provide Mrs X with a written apology for the faults identified above;
• Pay Mrs X £300 to recognise the distress and uncertainty caused by the delay in reviewing Y’s EHCP;
• Pay Mrs X £150 to recognise the additional time and trouble she has been caused by the fault with the Council’s complaint handling;
• Pay Mrs X £600, representative of £100 per month, to recognise the loss of educational provision to Y over the six month period of delay in finalising her EHCP.
74. Within three months of my final decision:
• Provide the Ombudsman with an action plan for the project it has put in place to improve its EHCP process and provide its timescale(s) to complete this.
• Remind staff dealing with complaints of the importance of putting forward a remedy for any injustice identified during the complaints process.

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Final decision

75. I find fault with the Council for failing to ensure Y’s EHCP was finalised on time. I also find fault with the way the Council responded to Mrs X’s complaint.
76. The Council has accepted the recommendations set out above and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman