Summary: Mrs X complains for her son Y there were failings and delays in the way the Council issued an amended Education Health and Care Plan following an annual review. And delays by the Council in paying Y’s personal budget causing stress and uncertainty. We have found service failure by the Council when dealing with Y’s Education Health and Care Plan. But this did not cause Y a significant injustice to warrant any further remedy than the apology already given by the Council. We found fault by the Council in making the personal budget payments. But this has not caused a significant injustice to Y as there has been no break in his service provision. So, we have completed our investigation.

The complaint

1. I have called the complainant Mrs X. She complains on behalf of her son Y, there were failings and delays by the Council in issuing an amended final Education Health and Care Plan (EHCP) for Y following an annual review in December 2021. Mrs X says this caused stress and uncertainty as they did not know what Y’s placement would be for September 2022. It also meant Mrs X was unable to exercise her right of appeal to the SEND tribunal if she disagreed with the EHCP.
2. Mrs X also complains there have been failings in the way the Council decided and paid Y’s personal budget (PB) to her as it is consistently being paid late. Mrs X says it causes stress and uncertainty while waiting for the funds to be decided and made available.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’  and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with 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

6. I have read the papers submitted by Mrs X. I considered the Council’s comments on the complaint and the supporting documents it provided. I considered relevant law and guidance on special educational needs.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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.

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What I found

Education, Health and Care Plan (EHCP)

9. 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 SEND Tribunal can do this.
10. Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment, or they disagree with the special education provision, or the school named in the child’s EHCP.

Annual Reviews

11. Councils must review EHCP’s at least every 12 months.
12. Councils must decide whether to maintain the EHCP in its current form, amend it, or cease to maintain it within four weeks of the review meeting. 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)
13. The Council should issue the final EHCP or decide not to amend the EHCP at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened in this case

Background information

14. Y was 18 years old at the time of the complaint. He has been diagnosed with Autistic Spectrum Disorder and severe agoraphobia. The Council issued Y with an EHCP in November 2020. Y does not attend school but received a Personal Budget (PB) to pay for an Educated Other Than at School ( EOTHAS) package. This included online lessons/mentoring for 39 weeks of the year during term time. Y received psychotherapy to help with his mental health and music therapy paid for through the PB.

Key events

15. This section sets out the key events in this case and is not intended to be a detailed chronology.
16. The Council allocated Y a new case officer (officer) in September 2021. The officer contacted Mrs X and Y and advised his PB ran to the end of the Autumn term in December 2021. The officer arranged an annual review of Y’s EHCP in December 2021. Mrs X and Y commented on Y’s EHCP. The minutes of the meeting noted Y was starting to engage more in his educational programme, but he had no formal qualifications in English and Maths. This would make it difficult for Y to attend a college as he did not meet entry requirements.
17. The officer applied to the Council’s Post-16 Commissioning Panel (panel) for agreement to continue Y’s PB from January to December 2022. In January 2022 the panel asked for more information on costings due the significant increase in the proposed PB. The panel also wanted to know Y’s educational plans for the 2022 to 2023 academic year. The officer provided more information and the panel agreed to the PB from January to the end of March 2022. The panel asked for the case to be considered again in April 2022 as it questioned some parts of the proposed PB.
18. Mrs X contacted the officer in February 2022 she had not received the PB for January to March 2022. The officer chased SEND financial services for the payment. The officer sent a letter to Mrs X about the annual review saying the Council intended to amend the EHCP. The officer apologised for the delay in sending the letter which was 11 weeks after the annual review meeting. The officer asked Mrs X to provide some specific information about the educational outcomes the family wanted for Y.
19. The officer issued a draft amended EHCP to Mrs X in early March 2022. The proposal was for Y to follow a post 16 programme of study. Mrs X raised concerns she had no idea what was being proposed for Y for the next school term. But wanted to avoid the stress of going to the SEND Tribunal so was willing to hold meetings with the Council to resolve issues with the PB. Mrs X also requested an extension to the 15 days permitted for parental comments.
20. Mrs X says she did not use the extension allowed but provided comments shortly afterwards. In April 2022 Mrs X liaised with the officer over Y’s tentative plans for 2023-24. It was noted Y was interested in attending a college to study music. The officer asked the panel for a new direct payment agreement to cover the PB for April to July 2022. So, the Council could arrange a new set-up to be made for Y for the academic year 2022-23.
21. During April and May 2022, the officer was heavily involved in trying to get agreement for an occupational therapy and education psychology re-assessment requested by Mrs X to form part of the EHCP. But the panel did not agree to the request. The officer also looked at options of college for Y and suggested Y needed to apply. Y did so but his application was not accepted because of his age and the lack of qualifications meant he did not meet the entry requirements. Y had also missed the deadlines in 2021 to apply for college in September 2022.
22. In May 2022 the panel agreed to a direct payment agreement to cover Y’s costs until the end of July 2022. But requested information on Y’s proposed plans for September 2022 to July 2023 and if it was to be the final year of a PB. The panel asked the officer for information on the interventions and therapy Y needed from health services for the EHCP.
23. Mrs X contacted the officer in June 2022 as she had not received the PB for April to July 2022 and had no funds available to pay invoices. The case officer chased SEND financial services who agreed to pay the invoices and pay the PB to Mrs X.
24. Mrs X met with the officer in July 2022 to discuss the PB request for the academic year 2022-23. And to start gathering information as Y needed to show an indication of study and to apply for college for 2023. The case officer reported it was a protracted process. This was due to the previous agreement from the panel being for a continuation of the PB for 2022-23 with the understanding it was to be Y’s ‘last year’. But the proposed cost was much higher than the 2021-22 PB due to Y’s need for English and Maths tutoring and exam costs. It also included continuing a therapy package to help Y overcome his agoraphobia and the costs of this had increased significantly.
25. The officer noted she could not issue a final amended EHCP until the panel confirmed the PB for 2022-23. The Council explained the effects of Y’s agoraphobia and the Covid-19 pandemic had been profound on Y. This was with his history of school placement breakdowns and periods of non- engagement. But all considered it positive Y was now keen to engage in his interventions and consider college in 2023.
26. The Council’s documents show that during August to October 2022 the officer pursued organising the budget costs for Y including psychotherapy and applying to the panel to gain agreement to the costs. The officer liaised with Mrs X and kept her updated. The Council says the delays were due to the providers giving incorrect costings and the panel’s need to query costs/providers. The officer then needed to provide further rationales for costs. The parental request to delay responding with comments in March 2022 also added to the delays in the EHCP process.
27. The officer updated Mrs X in October 2022 about the EHCP and itemised PB for 2022-23. The officer confirmed she was still looking at information on options for English and Maths exams for Y to take. The Council issued the final amended EHCP at the end of November 2022. The EHCP agreed Y’s educational placement which would be subject to the PB set out within the document. The Council advised Mrs X of her right of appeal if she did not agree with the EHCP and placement.
28. The Council accepts it did not finalise the EHCP within the statutory deadlines. In recognition of this it has made changes to its PB process from September 2022. This provides advice for parents, guidance documents for Governance Boards and enhanced decision-making processes to enable greater scrutiny of complex cases going forward.

Personal Budget

29. The Council explains it resolved the previous situation with Y’s PB in November 2021. The officer applied for further agreement to the PB for January to July 2022, but the panel only agreed it until the end of March 2022. The education service asked for it to continue to the end of the academic year in July 2022 which was agreed . But the officer had to apply for a PB for 2022-23 after an extensive time liaising with Mrs X and gathering costs.
30. The Council reports the SEND finance service confirmed there were still monies in Y’s PB account at the end of 2021. So, Mrs X could use these in the first term of 2022 towards Y’s costs. The education service submitted finance forms as soon as the panel reached agreement on costs in 2022.
31. The Council confirms there were delays in SEND financial services sending the PB payments due to it implementing a new financial system and acting on the requests submitted. These were followed up each time Mrs X contacted the case officer to pay money into Y’s PB account. The Council confirms that despite the delays in paying the PB there had been no break in the service of the provisions delivered to Y during this time.

My assessment

32. The evidence provided by the Council shows that it failed to deal with Y’s EHCP after the annual review within the statutory deadlines. This is service failure by the Council. However, the documents provided show the service failure has been caused by extenuating circumstances because of the complexity of Y’s case. This includes Y’s health conditions and previous failures to engage with educational interventions which left him without the necessary qualifications. So, he would have been unable to start college in September 2022 which became the emerging plan in April 2022.
33. The documents show the Council has been proactive in dealing with the situation and made efforts to resolve matters. This includes the time spent by the case officer gaining information, presenting the case to the panel several times, following up outcomes and liaising with Mrs X. It is positive that Y has started to engage with interventions now and hopefully will be able to attend college in 2023.
34. The Council has apologised for the delays in issuing the final amended EHCP after the annual review in December 2021, which is adequate action for it to take. So, while I consider there has been service failure by the Council in meeting the statutory deadlines, I do not consider it has caused such a significant injustice to Mrs X and Y to warrant further remedy from the Council. Mrs X and Y were aware from April 2022 of the proposed plans for Y to study at college and the need to gain qualifications and apply in time for 2023.
35. The Council accepts it delayed paying some of Y’s PB payments. But it followed up the matter each time Mrs X contacted the case officer about the delays. These were resolved and the payments made. I consider there is fault by the Council as it delayed in making the PB payments. But it has not caused a significant injustice to Mrs X or Y as there was no break in provision for Y during this time. The Council has taken appropriate action by apologising to Mrs X and Y for the delays. It has also updated its PB processes to help improve how it deals with complex cases such as Y’s in the future.

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Final decision

36. I am completing my investigation. There was service failure by the Council when dealing with Y’s EHCP after an annual review and it has apologised. But this did not cause Y such a significant injustice to warrant any further remedy from the Council. The Council was at fault in the way it paid Y’s PB to Mrs X as they were delayed. But this has not caused a significant injustice to Y as there was no break in his provision.

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Investigator's decision on behalf of the Ombudsman