Summary: There was fault the Council did not issue a final Education, Health, and Care Plan for Mrs X’s son in line with deadlines. There was also fault it did not agree a personal budget for an education otherwise than at school provision alongside that deadline. This caused Mrs X’s son an injustice because he was without the full education provision due, for an academic term. There was also fault in how the Council handled Mrs X’s complaint about this. The Council have agreed it will make a symbolic payment to Mrs X to remedy these injustices.

The complaint

1. Mrs X complained that the Council was at fault in how it handled her son’s Education, Health, and Care (EHC) Plan. She said this included:
1. Not providing suitable education from September 2022 until it agreed a personal budget in March 2023.
2. Delaying issuing a final EHC Plan after a SEND Tribunal ruling in November 2022.
3. Delaying agreement for an education otherwise than at school (EOTAS) package including a personal budget.
2. Mrs X said these delays meant her son (Y) lost out on education he would have been due. She also said the Council’s poor handling of its communication about this caused her distress.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
8. 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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have not investigated

10. I cannot investigate the Council’s decision about the school it named in the EHC Plan or how it assessed Y for this EHC Plan. This is because there is an appeal right for these decisions and Mrs X used this appeal right.
11. Nor can I investigate the period of missed education provision in Mrs X’s complaint, from September 2022 until the end of December 2022. This is because Mrs X appealed the Council’s decision on these matters with the SEND Tribunal, and the case law highlighted at paragraph 7, means we cannot provide a remedy for this period.
12. In addition, we would not usually look at the period while the Council are finalising changes to the EHC Plan, up until the point when the Council should have issued a final EHCP after the Tribunal ruling. In Mrs X’s case this should have been late December 2022.

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How I considered this complaint

13. We spoke to Mrs X and considered the information she provided.
14. I considered the Council’s comments and the documents it provided.
15. I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
16. I have considered our guidance on remedies.
17. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

18. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what the arrangements are to meet them. The EHC Plan contains these needs and arrangements in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
19. In cases where the SEND Tribunal makes an order for the Council to amend the provision specified in an EHC Plan, it should do this within five weeks of the SEND Tribunal order.

Personal Budgets

20. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
21. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
22. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan.
23. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.
24. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when it acquires the provision for, or on behalf of, the child’s parent or the young person.

The Council’s complaint policy

25. The Council’s policy says at stage one, it will reply to non-complex cases within twenty working days or otherwise keep complainants up to date in complex cases. It says it will respond to stage two requests when escalated after twenty working days.

What happened

26. In February 2022, the Council amended Y’s EHC Plan. Because the Council had proposed naming a specific school in section I, Mrs X lodged an appeal to the SEND Tribunal about this.
27. In August 2022, before the tribunal hearing, Mrs X sent the Council a proposal for an EOTAS package. Mrs X said she asked for a personal budget to facilitate this package.
28. In its reply, the Council said because Mrs X had lodged an appeal, it was waiting for the tribunal decision to determine what Y’s education provision would be.
29. In late November, the SEND Tribunal made a ruling on the provision relating to Y’s EHC Plan. The ruling stated that the Council were to ensure Y received education, out of school, as part of an EOTAS package.
30. In late December, before it had issued Y’s final EHC Plan, the Council queried the wording of some of the provision in Y’s EHC Plan directly with the tribunal. Mrs X was then in contact with the Council about the wording of the updated and amended plan, variously from mid-January and early February 2023.
31. The Council issued a final EHC Plan in late February 2023 and it noted it would agree a personal budget.
32. In mid-March, Mrs X made a complaint to the Council about its inaction and Y’s delayed education. That same day, the Chief Executive at the Council replied and apologised for delays in providing Mrs X a budget and payment. The Council agreed Mrs X’s budget in late March 2023.
33. The Council replied to Mrs X’s complaint in July 2023. In that response it upheld her complaints about delays in finalising Y’s EHC Plan after the tribunal ruling. It also upheld her complaint it had delayed the EOTAS package. Mrs X escalated her complaint, but the Council never replied to this.

My findings

34. For the Council to have complied with the statutory requirements in issuing Y’s final EHC Plan after the SEND Tribunal hearing, it should have issued it by late December 2022. It did not do so until late February and that is fault. In isolation, I do not find this specific fault caused any injustice, because the evidence shows the Council were actively seeking to resolve the wording that would appear in the final EHC Plan, and this included some communication with Mrs X.
35. Notwithstanding, the Council should have recognised the likely delay in it being able to issue the final EHC Plan in line with the requirements and taken steps to carry on and resolve the EOTAS provision and funding in line with the statutory deadline. The Council did not do this until late March. This was fault and I note the Council upheld this aspect of Mrs X’s complaint and have apologised.
36. This fault caused Y an injustice. Because of the fault, the Council did not agree the EOTAS package until late March. This meant all the provision agreed in line with the EOTAS package could not begin until April, when this provision ought to have started in January. I find on balance this meant it was likely there was a delay in Y’s provision starting. The Council sent me information that shows it paid for some education provision during the period January onwards and I have taken this into account in evaluating what the injustice to Y was.
37. The Council also delayed giving Mrs X a response to her stage one complaint. In addition, it made an offer to consider her escalated complaint, but then did not complete the stage two process. That is a fault in communication, and it caused Mrs X an injustice because of the time and trouble she unnecessarily experienced.

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Agreed action

38. Within one month of the date of my decision, the Council have agreed it will:

• Pay Mrs X £100 to recognise the time and trouble she experienced while the Council handled her complaint.
• Pay Mrs X £900, for the benefit of Y, as a symbolic payment to recognise missed education provision.

39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have ended my investigation with a finding of fault, causing an injustice, and the Council have agreed to my recommendations on how it can remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman