Summary: Ms X complained the Council did not respond to her request for a Personal Budget, meaning her child did not receive tutoring and support he should have. There was some fault by the Council in the way it communicated with Ms X about her request to use additional funding as a Personal Budget, however this did not cause her significant injustice. We have not investigated Ms X’s other complaints about delays in issuing a final Education, Health and Care plan as we previously agreed a remedy for any injustice this caused. We cannot investigate Ms X’s complaint about the content of the latest Education, Health and Care plan the Council issued as Ms X has appeal rights to the First-tier Tribunal (Special Educational Needs and Disability) which she has exercised.

The complaint

1. Ms X complains the Council:
1. Did not respond to her request for a Personal Budget in February 2023 for her son’s extra tuition support.
2. Delayed in issuing an Education, Health and Care plan following her son’s annual review in 2023.
3. Issued an Education, Health and Care plan which was not fit for her son’s needs and left him without adequate support.

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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 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)
3. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), 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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What I have and have not investigated

6. The scope of this investigation considered events from February 2023, until August 2023.
7. I have investigated complaint a), but not complaints b) and c). I have set out in the Analysis section of this statement the reasons for not investigating.

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How I considered this complaint

8. As part of this investigation, I considered the complaint made by Ms X and the Council’s response. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council and considered comments received in response.

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What I found

Education, Health and Care plans

9. 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 arrangements should be made to meet them. The EHC Plan is set out 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.

Personal Budgets

10. 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.
11. 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.
12. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
13. 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.

Appeal rights

14. 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.
15. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

What happened

16. There has been extensive correspondence between Ms X, the Council and her son’s school. In the section below I have just summarised the key points relating to the complaint.
17. Ms X’s son, Y, has special educational needs and has an EHC plan.
18. In July 2022, the Council agreed to allocate additional funding to Y so he could receive tutoring to help him with exam preparation. The Council said it did this as a gesture of goodwill in light of Ms X’s concerns. The Council said Y’s school could invoice it for the additional tutoring once this had been arranged by the school.
19. In the months which followed there was a large amount of correspondence between Ms X and Y’s school discussing the extra tuition. Ms X did not agree with how the school wanted to allocate the funding and arrange the tuition. As a result, the school did not put in place the extra exam preparation tutoring.
20. In February 2023, the Council carried out an annual review of Y’s EHC plan. The Council had not issued a final EHC plan from Y’s previous annual review in April 2022. Ms X had complained to the Ombudsman about this ongoing delay. The Ombudsman decision from this complaint found the Council at fault for delaying in issuing a final EHC plan and the Council agreed make an ongoing financial payment to Ms X for each month until it provided a final EHC plan to Y.
21. Ms X emailed the Council in February 2023 and asked it to allocate the funding for the additional tutoring agreed in July 2022 to her as a Personal Budget. Ms X said she had paid for tutors herself for Y as the school had not put in place the exam preparation tuition.
22. In March 2023, Ms X emailed the Council as she had received no response to her request to have the funding allocated for Y’s exam preparation tutoring, which was not used, as a Personal Budget.
23. In late March 2023, Ms X made a formal complaint to the Council. Ms X raised concerns about the delay in providing Y with a final EHC plan following his annual review. She also raised concerns about the annual review process and concerns about Y not receiving the exam preparation tutoring.
24. The Council responded to Ms X’s complaint shortly after. The Council said Ms X did not attend Y’s annual review meeting or provide reasons for not attending, The Council apologised that Y’s EHC plan had not been finalised. The Council said it provided Y’s school with additional funding and the purpose of this was to help him with exam preparation.
25. In mid-April 2023, Ms X asked the Council to consider her complaint at the next stage of its complaints process. Ms X said she was not included in the annual review and her views were not sought, Ms X said the Council had missed the statutory timeframe for issuing Y with a final EHC plan.
26. The Council provided its final response to Ms X’s complaint in early June 2023. The Council said it recognised the deadline to finalise Y’s EHC plan was at the end of March 2023 and this had passed. The Council said it was amending the EHC plan.
27. The Council issued Y’s final EHC plan in June 2023. Ms X did not agree with the content of the EHC plan and the section F provision listed in the plan. Ms X appealed this to the SEND Tribunal in August 2023.

Analysis

Complaint a) The Council did not respond to Ms X’s request for a Personal Budget in February 2023 for her son’s extra tuition support.

28. In February 2023, Ms X asked the Council to allocate her the funding it had agreed to provide to support Y with exam preparation as Y’s school did not use this properly. Ms X wanted to use this to fund tutoring for Y herself.
29. From the information provided, it does not seem like the Council ever responded to Ms X on this point or issued her with any decision. This was fault.
30. The funding Ms X requested as a Personal Budget was not part of Y’s Section F provision in his EHC plan, it was additional tutoring provided by the Council on top of Y’s EHC plan. It could therefore not be provided to Ms X as a direct payment in the form of a Personal Budget. As a result, I do not consider Ms X has suffered injustice as she did not have the right to request a Personal Budget for this funding. It would have been helpful if the Council had clarified this to Ms X.

Complaint b) The Council delayed in issuing an Education, Health and Care plan following her son’s annual review in 2023.

31. I have not investigated this part of Ms X’s complaint as Ms X has already received a remedy for the Council’s delay and injustice caused.
32. The previous Ombudsman complaint recommended the Council make an ongoing payment to Ms X until a final EHC plan was issued to Y. Therefore Ms X should have continued to receive an ongoing payment from the Council until June 2023, when Y’s final EHC plan was issued. As the recommendations from Ms X’s previous complaint covered this period, there is nothing further I can add.

Complaint c) The Council issued an Education, Health and Care plan which was not fit for her son’s needs and left him without adequate support.

33. The courts have established that if someone has appealed to the SEND 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)
34. Ms X disagrees with the content of Y’s EHC plan and the level of support offered to him. We cannot decide what provision or level of provision should be in a child’s EHC plan, only the SEND Tribunal can do this. Ms X has submitted an appeal to the SEND Tribunal therefore we cannot consider this part of her complaint.

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Final decision

35. I have completed my investigation and found there was some fault by the Council in the way it communicated with Ms X but this did not cause significant injustice, so no remedy is recommended.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman