Summary: Miss Y complains about the Council’s delay in assessing their son, D, and producing his Education Health and Care Plan (EHCP). Miss Y also complains about delays by the Council in setting up D’s personal budget. We find fault by the Council because it did not produce D’s plan in line with statutory timescales and delayed in implementing the personal budget. The Council apologised and made a backdated payment to cover funding for D’s provision during the period of delay. The Council will also undertake the additional actions listed at the end of this statement.

The complaint

1. Miss Y complains about delay in the EHCP process and arranging a personal budget. Miss Y requested an EHC assessment at the start of January and the EHCP was issued in November, significantly exceeding the statutory timescales.
2. Miss Y says their son has missed provision and Miss Y needed to suspend their degree as a direct result. Miss Y wants the provision in the EHCP put in place and the personal budget to be paid, as well as any reimbursement for their financial losses. Miss Y wants the Council to acknowledge the impact with financial redress and changes to its policy around education other than at school (EOTAS) and personal budgets.

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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 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

5. I discussed the complaint with Miss Y and considered any information they provided.
6. I made enquiries of the Council and considered its response alongside the relevant law and guidance.
7. Miss Y and the Council had an opportunity to comment on my second 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

What should happen

9. A child with special educational needs may have an Education, Health and Care Plan (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.
10. There is a right of appeal to the SEND Tribunal (‘SENDIST’) against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent, or a final EHC plan has been issued.
11. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
• the process of assessing needs and developing EHCPs “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• if a council decides, following an EHC needs assessment, not to issue an EHCP, it must inform the parent within a maximum of 16 weeks from the date of the assessment request.
• the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply)
12. Parents may request for the provision in an EHCP to be funded by a personal budget. This is an amount of money allocated by the Council to deliver the services and support set out in the EHCP. Personal budgets may be advantageous for some parents because it allows them more choice and control over the services their child receives.
13. The Code outlines the four ways in which the child’s parent can be involved in securing provision:
• Direct payments – where individuals receive the cash to contract, purchase and manage services themselves.
• An arrangement – whereby the local authority, school or college holds the funds and commissions the support specified in the plan (these are sometimes called notional budgets).
• Third party arrangements – where funds (direct payments) are paid to and managed by an individual or organisation on behalf of the child’s parent or the young person.
• A combination of the above.

Background of key events leading to the complaint

14. The Council received a request to complete an EHC needs assessment for Miss Y’s son, D, on 6 January 2022. In line with the statutory timescales, the Council was expected to respond to the request by 16 February.
15. On 11 March the Council made its decision to assess D and notified Miss Y.
16. Throughout April and May the Council obtained professional advice and information as part of D’s assessment. This included information from a community Paediatrician, Social Care, Educational Psychology and sensory support. The Council also sought the views of Miss Y.
17. Miss Y wrote to the Council to express their concerns about the Council’s failure to obtain evidence from D’s education provider. Miss Y also said they had twice asked the Council to seek advice from a specialist Occupational Therapist (OT) and a Speech and Language Therapist (SaLT). Miss Y felt this was a reasonable request because a developmental therapist had identified sensory processing and communication difficulties in D.
18. On 7 August Miss Y again wrote to the Council to express their concerns about the Council’s failure to issue a draft EHCP within the statutory timescales.
19. The Council allocated an ‘Assessment Coordinator’ to D’s case on 17 August. It said the delay in allocating D’s case was due to a lack of capacity until the end of July when the team recruited and trained new staff members. Around this time, the Council’s records show that D’s case was also allocated to an OT.
20. The Council issued a draft EHCP on 1 September and invited comments from the relevant parties. The Council also consulted with seven potential education providers for D.
21. The OT provided their report in October and the Council’s SEN panel met at the end of the month to discuss D’s case. The records show the panel decided D’s needs could not be met within mainstream or special school and agreed that a package of education other than at school (EOTAS) was needed.
22. On 3 November the Council issued a final EHCP. This included EOTAS, which Miss Y asked to be funded by a personal budget. Miss Y requested a managed account so that a third-party organisation could oversee the account and any payments for D’s provision.
23. Miss Y complained to the Council on 18 November about delay in making the personal budget funds available. Miss Y said the Council was not ensuring the provision in D’s EHCP was being delivered.
24. The Council completed personal budget forms at the end of November to authorise a payment card. Shortly after this, the Council submitted a request for a personal budget card. The Council said the purpose of the card was:

“… money will be added each month for the services which you will fund. This card must be used to pay for the services and cannot be transferred back into parent’s account. The card can take 3-4 weeks to be set up.”

25. The Council also previously explained that:

“If you have already paid for services or will be paying for these services in the next month this must be shared with me so we can put it on the Personal Budget Form and ask for this to be set up so you can transfer this back into your account. This is the only way that costs can be agreed to be transferred back into your account.”

26. The Council responded to Miss Y’s complaint on 16 December. It acknowledged that it failed to meet the statutory 20-week deadline to issue D’s plan. The Council pointed to delays in the consultation process with education providers and a general lack of capacity in the local area. The Council upheld Miss Y’s complaint due to the delay in issuing the plan and further delay in processing D’s personal budget and EOTAS package. The Council apologised for the distress caused.
27. Due to ongoing delays in finalising the personal budget, the Council made an emergency CHAPS payment to D’s education provider on 27 January 2023 to cover D’s provision from November 2022.
28. When reviewing the complaint at the second stage of the complaints process, the Council agreed to backdate the cost of D’s education provision to May 2022 when the EHCP should have been issued.
29. The Council also invited Miss Y to submit any proof of their own expenditure during the period of delay. The Council has since confirmed it has paid Miss Y backdated petrol allowance. Miss Y says the Council has not reimbursed the cost of private swimming lessons privately funded during the period of delay.
30. Following the concerns expressed by Miss Y, the Council attended mediation in February to discuss the wording of D’s EHCP and personal budget. In response, Miss Y told the LGSCO the Council paid the backdated funds into an account which they have no access to due to a lack of authorisation.
31. Miss Y also pointed out that the financial reimbursement will not fully remedy the effects of D’s missed provision because he cannot retrospectively catch up on such a significant amount of education.
32. The Council’s records show it emailed Miss Y on 24 February with details of how to transfer funds from the card account. Miss Y says they did not have authorisation to transfer funds. The email chain provided by Miss Y shows they asked the Council about this at the end of March but did not receive authorisation until 22 May 2023.
33. D is now receiving the majority of the provision in his EHCP.

Was there evidence of fault in the Council’s actions causing injustice?

34. The Council has already accepted and acknowledged there was delay in producing D’s EHCP. It has cited several contributing factors, such as staff shortages and changes to team structures. As a direct result of that delay, D’s funded provision did not start in May 2022 when it should have done. To put D back in the position he would have been, were it not for that delay, the Council backdated his funding.
35. Miss Y has expressed their view that a financial payment is not sufficient to remedy D’s injustice because he has missed too much provision. While I understand Miss Y’s perspective, the LGSCO’s Remedies Guidance says that missed provision caused by fault should be remedied with a symbolic payment:

“Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”.

36. The Council has backdated funding for D’s provision and reimbursed Miss Y for their quantifiable losses. However, it needs to make sure that Miss Y can access the remedy payment from the account, or make the equivalent payment to Miss Y directly.
37. Furthermore, there are other elements to Miss Y’s complaint which remain outstanding. Firstly, Miss Y says the Council’s delay meant that D’s swimming provider withdrew their services. D is entitled to receive funding for swimming lessons as per his EHCP. Miss Y says the provider must be paid up front at the start of each school term. Due to the delay in arranging the personal budget, the provider did not receive payment and withdrew its services. Miss Y says they must now source another provider.
38. Miss Y also says the Council provided conflicting and confusing information about its ability to source and pay a swimming provider directly. Although Miss Y had opted for direct payments to be managed by a third-party, the Code makes clear that payments for personal budgets can be made using a “combination” of all four methods; one of which is payment to a provider directly. There is no evidence to show the Council properly considered this when Miss Y made their request.
39. As a result of the delay in arranging the personal budget, D experienced disruption to his swimming lessons and Miss Y experienced avoidable distress, time and trouble when trying to source an alternative provider. It is my view that this could have been avoided if the Council had acted without delay.
40. Secondly, Miss Y has experienced avoidable time and trouble in regularly contacting the Council for updates throughout the period of delay. Miss Y says they had to postpone their university course because of the Council’s delay. The records show that some Council officers were inexperienced in dealing with personal budget requests and there was confusion about how to set up a managed account. This contributed to the delay and in turn caused unnecessary time and trouble for Miss Y, who has explained the impact this had on their health and the wider impact on the family. The Council apologised for the delay, but in my view, this alone is not a proportionate remedy.
41. To remedy the complaint, Miss Y wants the Council to produce a policy around personal budgets and EOTAS. I have reviewed the Council’s local offer, and this contains information about personal budgets and how they can be used. The Council also provides information about the process on the personal budget agreement form sent to parents. The LGSCO can only make recommendations if the injustice flows from the fault identified. We have not found any fault in the provision of information about personal budgets so there is no remedy for us to recommend here.
42. I appreciate Miss Y would like the Council to introduce a deadline for the implementation of personal budgets. Miss Y has suggested a maximum timescale of six weeks between the date of the final EHCP and the provision of the personal budget. However, the regulations nor the Code do not stipulate any such timescales and so the LGSCO cannot insist the Council implements a policy containing a six-week deadline as suggested.

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Agreed action

43. Within four weeks of my final decision, the Council will:
• Ensure Miss Y can access a financial remedy of £1,200 to be used for D’s educational benefit. This in recognition of the missed provision from the date D’s EHCP should have been issued (26 May 2022) until the date of issue (3 November). This equates to one school term. To ensure that Miss Y does not go to additional time and trouble in arranging this, the Council could make the payment direct to Miss Y and then reimburse itself by recovering the equivalent amount from the surplus backdated funds. If this is not possible, the Council could consider issuing a written agreement allowing Miss Y to withdraw the £1,200 remedy directly from the account;
• Pay £300 directly to Miss Y. This is a symbolic payment in recognition of the time and trouble caused by the delay and the impact on Miss Y and their family; and
• Contact Miss Y to discuss D’s swimming provision. Although Miss Y has opted for a managed direct payment account, the loss of the swimming provider was because of delay and the Council will assist Miss Y in securing an alternative to ensure D receives the provision he is entitled to. The Council will also ensure that Miss Y has been fully reimbursed for any privately funded swimming lessons – as per the provision listed in the EHCP - purchased for D during the period of delay.
44. Within eight weeks of my final decision, the Council will also:
• Arrange a staff training session or a briefing paper for officers dealing with personal budget requests involving managed accounts to fund packages of EOTAS. The purpose is to ensure that officers are equipped with the knowledge required to set up personal budgets without unnecessary delay.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions will provide an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman