Summary: Mrs D complained about the way the Council dealt with her son’s education, health and care plan and personal budget. We found fault which caused Mrs D distress and time and trouble and caused her son to miss out on education. The Council should make payments to Mrs D and her son to remedy this. There are some elements of Mrs D’s complaint that are out of our jurisdiction as she appealed to the SEND Tribunal.

The complaint

1. Mrs D complained on behalf of her son, Mr J, that the Council:
1. Delayed reviewing his education, health and care (EHC) plan in 2022. As a result, the new EHC plan was not issued until 29 April 2022 causing a delay in finalising the personal budget.
2. Failed to pay his personal budget on time, meaning he missed out on it in the summer term 2022.
3. Delayed providing contact details for supported internships, so places were full.
4. Refused to meet to discuss a new EHC plan or draw up a working document and failed to put provision set out in the April 2022 EHC plan in place. This meant her son had no option but to go to a university to continue his education, even though he was not ready for this. As a result, his EHC plan was ceased automatically and he is struggling at university.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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 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 plan. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
6. 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)
7. 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 have and have not investigated

8. I explain in paragraph 44 why I cannot investigate or remedy matters linked to the appeal of Mr J’s EHC plan after 29 April 2022.

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How I considered this complaint

9. I spoke to Mrs D about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice, January 2015 ("the Code")
• The Special Educational Needs and Disabilities Regulations 2014
10. Mrs D and the Council had an opportunity to comment on two draft decision statements. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

11. A young person with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the young person's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
12. EHC plans cover young people up to the age of 25. There is no automatic entitlement to continued educational support at age 19, or an expectation that those with an EHC plan should all remain in education until age 25.
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
14. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Reviewing an EHC plan

15. The Code says councils must review an EHC plan every 12 months. The first review must be held within 12 months of the date when the EHC plan was issued. They must then be held within 12 months of any previous review.
16. Within four weeks of the review, councils must decide whether they propose to amend the plan and notify the young person of this decision. If they are amending, they must do so without delay and issue an amendment notice. Although the Code does not give any deadline for the issuing of an amendment notice, a high court decision in 2022 says any draft amended plan must be issued within four weeks of the annual review. The amended EHC plan must be issued within eight weeks of the proposed amendments (i.e. within 12 weeks of the annual review). (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin); Section 22(3) SEND Regulations 2014; and SEND CoP paragraph 9.196)

Ceasing an EHC plan

17. When a young person’s EHC plan is due to come to an end, councils should use the annual review prior to ceasing the EHC plan to agree the support the young person will have once they have left education. During this planning process, the council must continue to maintain the young person’s EHC plan as long as the young person needs it and remains in education or training. Any care and support plan will remain in place when the other elements of the EHC plan cease.
18. A council may cease a plan for a 19- to 25-year-old if it decides that it is no longer necessary for the EHC plan to be maintained (because the educational outcomes have been achieved), or if it is no longer responsible for the young person. A council is no longer responsible for a young person if they enter higher education (university).
19. If the council decides to cease to maintain the EHC plan, it must notify the child's parent, or the young person, and the school. It must also give the child's parent details of their right to appeal to the SEND Tribunal about the decision.

Personal budgets and direct payments

20. A personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC plan, where the parent or young person is involved in securing that provision. The personal budget regulations say parents and young people can request a personal budget when the draft EHC plan is being prepared, reviewed or re-assessed. A personal budget may be provided in the form of direct payments to the young person or their parent, for them to purchase the support themselves.
21. Details of a proposed personal budget should be included in section J of the draft EHC plan. The content of section J cannot be appealed to the SEND Tribunal, but the provision that it is funding can be.
22. Councils may only make direct payments in respect of the SEN provision specified in an EHC plan and if the authority is satisfied that:
• the recipient will use them to secure the agreed provision in an appropriate way; and
• the recipient will act in the best interests of the child when securing the proposed agreed provision.
23. The Council’s personal budget policy says the parent must make invoices and receipts available for review to ensure further payments can be made.

What happened

24. Mr J has autism, ADHD, anxiety and depression. Following an annual review of his EHC plan on 12 January 2021, the Council agreed to pay Mrs D a personal budget to fund Mr J’s education and therapies such as psychotherapy and occupational therapy (OT). Mr J was therefore receiving education other than at a school (EOTAS) funded by a personal budget.
25. The personal budget agreement was signed in March 2021 covering the period up to 28 February 2022. It said “Recipient will submit evidence of how the funding was used at the end of each term. The LA will review the invoices. Once approved, funding for the following term will be paid”.
26. A draft EHC plan was issued on 24 March 2021 but this was not finalised.
27. In September 2021, Mr J started at an independent college to study his final year of A levels. He was attending for 12 hours of tuition per week. He turned 19 years old that term.
28. Mrs D contacted the Council about Mr J’s annual review of his EHC plan, which was due by 12 January 2022. On 20 January the Council emailed Mrs D agreeing to arrange the review. It was held on 9 March 2022.
29. The annual review agreed that, although Mr J had planned to go to university in September 2022, he was not ready for this transition. He had not yet achieved his English GCSE and needed more time to prepare for adulthood and complete his Further Maths A Level. Changes to the plan were recommended, including that provision for Mr J was needed for a further year to meet the outcomes.
30. The Council issued an amendment notice and proposed amended EHC plan on 4 April 2022. This said Mr J would achieve his outcomes by July 2022 and wanted to move to university in September 2022. Mrs D replied that they were seeking to defer Mr J’s start at university for a year and she asked for the EHC plan to continue for the 2022/23 academic year.
31. The Council emailed Mrs D on 27 April saying it would not cease Mr J’s EHC plan and suggesting a meeting in August 2022 (after Mr J had received his results) to consider his provision from September.
32. The Council then issued a final EHC plan on 29 April 2022 which said Mr J would have EOTAS, would have achieved his outcomes by July 2022 and wished to go to university. It also contained details of the personal budget for the period March 2022 to the end of July 2022, which was £35,918. This was to fund weekly educational tuition (12hrs/week), OT, speech and language therapy (SALT), psychotherapy, and mentoring (2hrs/week). In addition, Mr J would have psychiatrist support (40hrs/year) and art therapy (38hrs/year).
33. Mrs D contacted the Council in May 2022 chasing the personal budget payment. She noted it was overdue as she had to pay the providers a term in advance. She sent invoices and a statement to the Council on 12 June 2022. She said there was £10,606.25 in the personal budget account following underspends due to COVID-19 lockdowns. There was some internal correspondence about how much was owed to Mrs D and the need to check previous expenditure.
34. Mrs D appealed to the SEND Tribunal about the EHC plan as she did not want provision to end in July 2022. The Council did not meet with her in August 2022 to discuss Mr J’s provision as it was following the Tribunal process.
35. Mrs D complained on 5 August 2022 that the Council had not yet paid the personal budget for the summer term 2022. She sent another breakdown of what the Council owed. The Council replied to the complaint on 16 August 2022 and made a payment of £15,498. It apologised for the delay and said it had reviewed its processes and the payment for the autumn term would be made in September 2022.
36. Mrs D asked for her complaint to be escalated to the next stage. She noted there was no personal budget in place for September 2022 onwards. Mrs D said the Council’s failure to make the payments earlier meant the summer term provision had effectively ceased.
37. The Council spoke to Mrs D about her complaint. On 4 September 2022 she emailed saying the plan for Mr J’s provision from September was uncertain as there had been no discussion about it. Mrs D also noted she had not received any information about contact details for supported internships until late June 2022.
38. On 5 September 2022 the Council emailed Mrs D to say it would maintain the EHC plan provision, enabling Mr J to do English GCSE, as the plan had not been ceased. Mrs D replied concerned this decision was too late, she asked “how are we meant to get a person with ASD to pivot on plans in a week?”. She said Mr J should re-take his A levels as, if he had been given more time, he could have achieved top grades.
39. The Council sent its final response to Mrs D’s complaint on 14 September 2022. It apologised for poor communication and the delay in paying the personal budget but did not consider this had caused Mr J to miss out on provision. It noted it had been incorrect to say there was a personal budget agreement from September 2022. The Council said it would refer Mr J to supported internship providers.
40. Mr J started at university. At this point his EHC plan automatically ceased.
41. In February 2023 the Tribunal struck out Mrs D’s appeal as it had no jurisdiction as Mr J was at university. Mrs D came to the Ombudsman.

My findings

42. The annual review of Mr J’s EHC plan should have been held by 12 January 2022. It was not held until 9 March 2022. This is fault. This caused injustice to Mrs D in the form of delay to her appeal rights, and also contributed to the delay in paying the personal budget for the summer term 2022. This is because, although the amended EHC plan was issued within four weeks of the review and the final EHC plan within 12 weeks, if the annual review had been held on time, these would have been issued two months earlier.
43. Following the annual review, the Council issued a final EHC plan on 29 April 2022. Mrs D started the appeal process.
44. 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 I cannot seek a remedy for any lack of education Mr J may have suffered after the date the appeal was engaged (29 April) that is linked to the disagreement about the provision in the EHC Plan. This is the case even though the Tribunal has no power to provide a remedy for lost education.
45. Mrs D complains the Council refused to meet her in August 2022 as it had initially offered and as a result there was no plan for Mr J’s education from September 2022. I do not find fault here as the Council decided to follow the Tribunal process to consider the EHC plan once Mrs D had appealed.
46. The Council has accepted that it did not pay the summer term personal budget until 16 August 2022. Whilst I can see there was some internal discussion about checking the previous expenditure, which is in line with the Council’s policy and the agreement, I find there was fault as there was delay from 12 June 2022 – when Mrs D submitted a statement and invoices – to 16 August 2022. This delay was exacerbated by the earlier delay in the annual review and the fact that the summer term personal budget was not agreed until 29 April 2022. The delay caused frustration to Mrs D and uncertainty.
47. In response to my first draft decision statement, Mrs D sent information that, although there was £10,000 in the account in June 2022, nonetheless Mr J had missed out on some of the provision set out in his EHC plan between March and July 2022. This was because tutors and therapists had to be paid in advance but the £15,498 was not paid until 16 August. Mrs D says in the summer term of 2021/22, Mr J had weekly psychotherapy, OT and art therapy, but he did not have tuition to study for English GCSE and A level in Further Maths (12 hours per week). Nor did he have all of the SALT, mentoring or psychiatrist support he should have had. This means not all of the £15,498 paid on 16 August 2022 was used and the remainder should be repaid to the Council.
48. I can make no finding about whether there should have been provision after July 2022 as this is linked to the appeal of the EHC plan, which is out of my remit.
49. Mrs D says she did not receive information about internships until late June 2022. The Council has sent evidence it had emailed Mrs D in January 2021 with information about apprenticeships and internships. But I have not seen the evidence of Mrs D’s later request, so I can make no finding about whether there was delay by the Council.
50. Mrs D says as a result of the lack of EHC provision after July 2022, the lack of a discussion about Mr J’s provision, and the lack of information about internships or apprenticeships etc, Mr J had no option other than to start at university before he was ready and causing his EHC plan to cease.
51. There was fault in the delay in holding the annual review and paying the personal budget, but I cannot say that this fault alone caused Mr J to have to start at university. And as I have explained in paragraph 44, I cannot in any case remedy any injustice caused that is linked to the appeal.
52. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance on remedies suggests a moderate payment is suitable to remedy distress and time and trouble. 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. Having taken into account that Mr J received some provision in the summer term, I consider £1,000 to be an appropriate amount.

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Agreed action

53. The Council has agreed to deduct from any repayment Mrs D is to make of the personal budget paid on 16 August 2023:
• £250 to remedy the distress and time and trouble caused to Mrs D by fault.
• £1,000 to remedy the injustice caused to Mr J by missed educational provision from April to July 2022.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman