Summary: The complainant (Ms X) complained about the way the Council reassessed her daughter’s (Y) educational, health and care (EHC) needs and carried out a Personal Budget (PB) process for her. Ms X also complained about the Council’s failings when communicating with her and handling her complaint. We found fault with the Council. This fault caused Y and Ms X injustice. The Council agreed to apologise, make distress payments to Y and Ms X, complete the reassessment and carry out some service improvements in addition to the remedy already offered by the Council in December 2022.

The complaint

1. Ms X complains about the Council’s delays within the EHC plan process for Y including:
• Reviewing Y’s EHC plan;
• Getting advice from an Educational Psychology (EP) advice;
• Preparing PB agreements;
• Arranging travel to the agreed provider;
2. Ms X also complains about:
• Poor communication from the Council;
• The Council’s failing to complete the actions it agreed when responding to her complaints.
3. Ms X says the Council’s failings meant Y missed education and lost the chance to take her General Certificate of Secondary Education (GCSE) exams. They negatively affected Y’s health, increased her anxiety and caused distress. They caused Ms X distress and had an impact on her work and financial situation.

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What I have and have not investigated

4. I have not investigated anything that happened before October 2021. Normally, as explained under paragraph six, we would not look at the events which happened more than twelve months before the complainant came to us. Although Ms X brought her complaint to us in February 2023, I decided to look at what happened before February 2022 as there are good reasons to extend my investigation back to October 2021. This is when the Council for the first time considered Ms X’s request for a Personal Budget for Y. Without looking at these events my investigation would not be complete. Besides, after the Council’s stage two response in April 2022 and the involvement of the Interim Deputy Director for Education, Achievement and Inclusion (the Deputy Director) Ms X was assured the Council would resolve all the contentious issues. Ms X’s justified expectation delayed bringing her complaint to us.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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.
8. 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)
9. 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)
10. 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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How I considered this complaint

11. I spoke with Ms X and considered the information she provided.
12. I made enquiries with the Council and considered the information it provided.
13. I reviewed the information on the Council’s website information about Personal Budgets in EHC plans and about corporate complaints.
14. I referred to our “Principles of good administrative practice” issued in December 2018.
15. Ms 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

Legal and administrative framework

Personal Budget

16. A personal budget is money identified by a council to deliver provision set out in an EHC plan where the parent or young person is involved in securing the provision.
17. Where a council refuses to make direct payment it must:
• Inform the child’s parents in writing of its decision, providing the reasons and informing of the right to request a review;
• Carry out a review of its decision, if requested to do so, considering any representations made by the child’s parent;
• Inform the child’s parent in writing of the outcome of the review, giving reasons.

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 7)

Reviews

18. The Council’s duties on EHCP Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014. Councils must review an EHCP at least every 12 months. (SEND Regulations 2014 regulations 18-22)

EHC needs reassessment

19. Councils must secure reassessment of the child’s educational, health care and social care needs if requested by their parent unless:
• it has carried out an assessment or re-assessment within the period of six months prior to that request, or
• it is not necessary for the authority to make a further assessment. (Children and Families Act 2014 section 44(2), Special Educational Needs and Disability Regulations 2014 regulation 24)
20. Once a decision to carry out a reassessment has been taken the process is the same as for the first EHC needs assessment and drawing up of the EHC plan with the same timescales and rights of appeal. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.191)
21. The local authority must aim to complete the re-assessment process as soon as practicable. The maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC plan. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.192)

Communication and complaints

Local authorities should support and encourage the involvement of children, young people and parents or carers by:

• Providing them with access to the relevant information in accessible formats
• Giving them time to prepare for discussions and meetings, and
• Dedicating time in discussions and meetings to hear their views.

(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24)

22. When exercising their functions councils should follow the principles of good administration, as explained in our ‘Principles of good administrative practice’ issued in December 2018. This means councils should:
• Provide effective services, using appropriately trained and competent staff;
• Take reasonable, timely decisions, based on all relevant considerations;
• Inform service users what they can expect and what the organisation expects of them;
• Keep to commitments;
• Being open and clear about policies and procedures and ensuring information, and any advice provided, is clear, accurate and complete;
• Stating criteria for decision making and giving reasons for decisions;

What happened

Background

23. Y is now 18 and has Autistic Spectrum Disorder (ASD), dyslexia and high levels of anxiety.
24. Y has had an EHC plan since 2018. The Council amended her EHC plan in December 2019.
25. In September 2020 Y’s Annual Review took place. At the time she attended an independent special school (the School).

October to December 2021

26. At the end of October 2021 the Council considered Ms X’s request for a PB for Y to attend a specialist distance learning centre (Learning Centre 1) which would allow her to get qualifications in the field she chose. It recorded Y did not want to engage in formal education. Although the School supported Y to access specialist activities centres in line with her interests, Ms X and Y did not think they were suitable. The Council did not make a decision on Y’s PB as it considered it needed more information on Learning Centre 1 and how it would meet Y’s learning outcomes. The Council also wanted to get updated professional advice on Y’s needs and the ways to prepare her for adulthood.
27. In early December the Council reviewed Ms X’s PB request again. It did not agree a PB for Y and noted its concerns about Y’s social development. The Council’s panel recommended:
• Tuition for core subjects to ensure Y can continue and complete her GCSE exams;
• Holding Y’s Annual Review in January 2022 to plan Y’s post-16 options;
• Updating Y’s EHC plan to include her recent diagnosis of ASD.

January to August 2022

28. Ms X complained to the Council in mid-January 2022. Not satisfied with the Council’s stage one response received in the beginning of February, Ms X asked the Council to consider her complaint at stage two. She said the Council failed to send proposed changes to Y’s EHC plan after the panel meetings held in October and December 2021. Ms X also mentioned Y’s positive engagement with individual online tutoring.
29. In the second week of April the Council upheld Ms X’s complaint. It accepted it failed to:
• Tell Ms X the result of the panel meeting from December 2021;
• Respond to Ms X’s messages and communicate with her adequately;
30. The Council increased its offer of a payment for Ms X from £500 to £1000 and confirmed its agreement to continue Y’s tuition over the Easter break. Y’s case officer undertook to liaise with the neighbouring council about educational provision for Y.
31. Following the meeting with Ms X, the Deputy Director wrote to her saying the Council was putting in place a bespoke package of support for Y, including:
• Amending and finalising Y’s EHC plan after completing her Occupational Therapy (OT) assessment;
• 15 hours a week of home tuition;
• Specialist training for two days a week;
• Extra funding for resources;
• One-off payment to cover the cost of the OT assessment;
• PB to cover travel expenses to and from the specialist training;
32. The Deputy Director stated his intent to introduce a plan which would improve the performance of the special educational needs (SEN) team’s communication with parents.
33. In the fourth week of August the Council sent a proposed PB agreement. Ms X was not happy with this document as it contained outdated information and errors. Some provision she had asked for was not included in the agreement.

September to December 2022

34. At the beginning of September Ms X reverted to her stage two complaint. She was disappointed by the lack of improvement of SEN services for Y despite the assurances she received from the Deputy Director.
35. Within the next few weeks Ms X contacted the Council twice. In its response sent in the third week of October the Council:
• Explained why it refused to accept certain equipment recommended by an OT as part of Y’s PB;
• Accepted some errors were made in the PB agreement sent to Ms X in August and some provision was missed as an oversight;
36. In response to Ms X’s reminder about an overdue final EHC plan for Y following reassessing her needs which started in February, the Deputy Director said an EP should have been in contact with Ms X to book a meeting. He also explained why the Council could not agree certain equipment asked for as part of Y’s PB and offered a payment of £5000 for missed provision.
37. At the end of November Ms X again raised he outstanding issues of Y’s PB, equipment Y needed for her education, delays with issuing a final EHC plan, lack of instructions for an EP to assess Y, no clarity on a specialist learning centre (Learning Centre 2) and holiday provision and unsatisfactory communication. Ms X considered the offer of £5000 unacceptable given the impact of the Council’s failings on her and Y.
38. At the beginning of December the Deputy Director said the Council would:
• Issue an amended EHC plan and an amended PB agreement by mid-December;
• Arrange the PB payment without any delays;
• Reissue Y’s EHC plan following a new EP advice by the end of January 2023;
• Assign a new case officer for Y and arrange an introductory meeting in early January 2023.
39. Ms X still had concerns about the advice from the EP as the EP involved with Y did not have instructions to carry out an assessment of Y’s SEN but to support, guide and advise Y’s new tutor. Ms X asked for an urgent review of the functional skills pathway with Y’s tutor as she considered Y should follow the GCSE pathway instead.
40. The Council issued Y’s final EHC plan in the fourth week of December. Achieving GCSEs or equivalent level qualifications in at least the core subjects was one of the outcomes identified for Y. The Council decided Y would receive Education Otherwise than at School (EOTAS) consisting of a package of home tuition and specialist studies, funded through her PB.

From January 2023

41. During further correspondence in January 2023 Ms X communicated to the Council she was not happy with:
• Some parts of Y’s EHC plan;
• The lack of a PB agreement in Y’s EHC plan.
42. Ms X also mentioned the need for the Council to agree with Y’s tutors the right pathway of education for her and enquired after an EP report.
43. In February and March Ms X contacted the Council several times. She told the Council it missed the deadline for making GCSE arrangements for Y. In the beginning of April there were still unresolved issues about Y’s PB and travel arrangements. Despite Y’s request made in the beginning of January, her new case officer failed to set up an introductory meeting.
44. The PB agreement Ms X received in the first week of April contained errors and outdated information.
45. During my telephone conversation with Ms X at the end of April she said she was still waiting for an EP assessment. She confirmed the Council provided the correct PB agreement, made suitable travel arrangements for tutoring and Learning Centre 2 and paid the equivalent of Y’s PB for the previous two terms. Ms X said that due to the Council’s failings Y lost the opportunity to take GCSE exams this year and lost motivation.

Analysis

Reassessment of Y’s EHC needs

46. The Council agreed to reassess Y’s EHC needs in February 2022. The reassessment was mainly for Y’s sensory needs This was confirmed by the Deputy Director in his email to Ms X in May. In the autumn of 2022 the Council also agreed to carry out an EP assessment of Y’s SEN. The Council should have issued Y’s final EHC plan at the beginning of June, whereas in fact it happened at the end of December. The delay of over six months is fault.
47. This fault caused Y injustice as there was uncertainty about her PB. As Y’s special educational provision was to be funded by her PB, the content of an amended EHC plan would have determined the Council’s position on this issue and provided clarity for Y and Ms X. They would also have a chance to challenge the Council’s position through an appeal.
48. Although the Council accepted Y needed an updated EP advice in the autumn of 2022, it failed to direct the EP to provide this advice until the spring term of 2023. If Ms X was not happy with the content of Y’s EHC plan issued in December 2022, she could have appealed to the SEND Tribunal. I consider, however, that it would be unreasonable to expect Ms X to appeal when there was no dispute about the need for an updated EP advice and this advice was to be delivered by one of the EPs working for the Council.
49. As explained under paragraph 21 councils have 14 weeks to complete reassessing a child’s or young person’s needs from the date of their decision. The Council decided Y needed an EP assessment in the autumn 2022, so getting an EP advice, amending and finalising Y’s EHC plan should have been finished by the end of February 2023.
50. The Council’s delay with getting advice from an EP and amending Y’s EHC plan is fault. It caused Y injustice as she was frustrated by having to explain the details of any changes in her needs to all new professionals. The Council’s fault also caused injustice to Ms X as she spent much time contacting the Council and complaining.
51. The effect of the Council’s delays on Y was particularly damaging because of the stage of her education. Y’s plan to prepare for GCSEs was mentioned in the panel notes from December 2021 and in the communication between Ms X and the Council in 2022. It was also included in Section E of Y’s amended EHC plan of December 2022. The Council’s delays and inadequate communication with Y’s tutors meant she missed GCSE preparation and registration for the exams. Ms X told me Y has now lost motivation and abandoned the option of taking these exams. This is a significant injustice to Y and Ms X.

Reviews

52. In response to my enquiries the Council said it could not find Y’s Annual Review documents from 2021 and 2022. I investigated the events Ms X complained about from October 2021 so only looked at the review which should have happened in 2022. On the balance of probabilities I decided that this review did not take place, which is fault.
53. I do not think the Council’s failing to review Y’s EHC plan in 2022 caused her and Ms X injustice as in February 2022 the Council started reassessing Y’s EHC needs, which was also an opportunity to review her special educational provision and outcomes.

Personal Budget

54. When considering Ms X’s PB request the Council failed:
• To consistently provide in writing reasons for its refusal of certain elements of the PB and advise Ms X of her right to ask for a review of the Council’s decision;
• To prepare the PB agreement within acceptable timescales and ensure it was free from errors.
55. When refusing Ms X’s request for a PB in October and December 2021 the Council failed to send her written reasons for its decision and to advise her on the right to ask for a review. This is fault, however it did not cause Y and Ms X injustice as she challenged the Council’s decision in a different way. Ms X complained about this issue in mid-January 2022 and the Council considered her complaint at both stages of the complaint process. In May it agreed that a package of education for Y would be delivered through her PB.
56. There are no statutory timescales for preparing a PB agreement following the Council’s decision. We would normally consider six to eight weeks as a reasonable timeframe to complete an agreement even if some of the provision is disputed. The Council agreed a PB for Y in May 2022 and issued an agreement without errors and outdated information in April 2023. This is a delay of over eight months.
57. The Council’s delays in preparing a PB agreement without errors and outdated information is fault. It caused injustice to Y through uncertainty about the extent of the provision the Council would fund and delays in putting some provision in place. The Council’s fault also caused injustice to Ms X as she found the process distressing and time-consuming. It also affected her finances as she had to pay for Y’s educational provision with no certainty on what the Council would eventually fund through the PB.
58. During our telephone call Ms X told me the Council had refunded her payments for two terms of EOTAS delivered to Y.

Communication and complaint handling

59. The records of communication between Ms X and the Council showed the Council was not consistent in providing responses and sending documents. It also failed to act on its undertakings even when they were made by a senior leader. This is fault which caused Y and Ms X injustice by leaving them frustrated, delaying resolution of the PB issues and creating uncertainty.

Remedies

60. Recognising the effect of its failings on Y, in the beginning of December 2022 the Council offered a payment of £5000. It has also paid back the cost of Y’s educational package for the autumn and spring terms of 2022/2023. I consider these remedies enough for most of the Councils failings within the PB process and communications until December 2022.
61. I have, therefore, looked to remedy the injustice caused by the remaining failings, mainly further delays with issuing a final EHC plan for Y following reassessing her needs by an EP and failings to act upon the Council’s undertakings.

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Agreed action

62. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• Apologise to Ms X and Y for the injustice caused to them by the faults identified;
• Issue Y’s final EHC plan amended in accordance with the updated EP assessment;
• Complete the payment offered to Ms X by the Deputy Director on 1 December 2022;
• Pay Y £500 to recognise the distress caused to her by the ongoing delays within the reassessment process;
• Pay Ms X £500 to recognise the distress caused to her by the Council’s ongoing delays and failings to adhere to its undertakings.

The Council will provide the evidence that this has happened.

63. We also recommend the Council within six months of the final decision:
• Introduce a policy on Personal Budgets in the EHC plans which would include information specified in the SEND Code of Practice 2014 paragraph 9.96;
• Consider introducing a template letter for negative PB decisions which informs people of their right to ask for a review of the decision;
• Prepare a plan of improvements in monitoring timeliness of the EHC needs reassessments.

The Council will provide the evidence that this has happened.

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Final decision

64. I uphold this complaint. I found fault in the way the Council carried out the reassessment of Y’s EHC needs, within the Council’s Personal Budget process for Y as well as within the Council’s communication and complaint handling. The Council’s faults caused injustice to Y and Ms X. The Council has accepted my recommendations so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman