Summary: The complainant, Ms X, complains about how the Council has managed the Education, Health and Care plan process for her son. She said the Council has failed to meet deadlines; her son has been out of education with limited alternative provision in place and said the Council’s communication has been poor. We found the Council was at fault. This caused significant distress to Ms X and her son was out of education. To address this injustice the Council has agreed to several recommendations.

The complaint

1. Ms X complains on behalf of her son, Mr Y, that since 2019 the Council has failed to:
• secure the provision set out in section F of Mr Y’s Education, Health and Care (EHC) plan;
• listen to her and Mr Y about what support he needed;
• consult with them about any changes to Mr Y’s EHC plan; and
• agree a personal budget for Mr Y so Ms X and he could have control over the services that meet his needs.
2. She said the Council’s actions have caused avoidable distress to her and to Mr Y.
3. She would like the Council to listen to their request and agree a personal budget for Mr Y.

Back to top

The Ombudsman’s role and powers

4. 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)
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. 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.
7. 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)

Back to top

What I have and have not investigated

8. We have decided to investigate the Council’s actions from January 2021 to May 2023. This is because we are satisfied that Ms X was aware of the Council’s duties towards Mr Y since 2019 and decided not to complain. Because of this, we consider the events that happened before May 2022 to be late.
9. However, we have decided to look at the Council’s actions from January 2021 because:
• the claimed fault and injustice are ongoing;
• Ms X explained some of the delay and we considered there were good reasons for exercising our discretion back to January 2021; and
• Ms X began complaining to the Council in January 2021 and since then pursued her complaint with the Council and us without a significant pause.

Back to top

How I considered this complaint

10. Before issuing this draft decision, I took account of:
• information gathered from the Council in response to written enquiries;
• relevant law and guidance as referred to in the text below; and
• information and comments from Ms X about her complaint.
11. Ms X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Reassessment of EHC needs

12. The Council must re-assess the young person’s needs if they or their parents have requested this. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.187)
13. The Council 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)

Duty to secure provision

14. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Personal budgets

15. The SEND Code of Practice 2015 says a parent or young person has the right to request a personal budget from a local authority when an EHC plan is being prepared.
16. Local authorities must consider each request for a personal budget on its individual merits and prepare a personal budget in each case, unless:
• the amount would have an adverse impact on services provided or arranged by the authority for other EHC plan holders; or
• where it would not be an efficient use of the local authority’s resources.
17. Where a disagreement relates to the special educational needs provision to be secured through a personal budget, the young person or their parent can appeal to the SEND Tribunal. This is also the case for any other disagreement about provision to be specified in an EHC plan.

What happened

18. Mr Y has Autism Spectrum Disorder (ASD) and anxiety.
19. In July 2021 Ms X wrote to the Council and requested a personal budget for Mr Y. She said that she could share the responsibility for educating Mr Y at home with him attending a school for part of the week.
20. The Council sent Ms X Mr Y’s draft EHC plan for her comments a couple of weeks later.
21. The Council emailed Ms X at the end of the month and advised her that her personal budget request was refused. This was because if she wanted to teach Mr Y at home she would be responsible for providing Mr Y with not only education, but also the special educational needs (SEN) provision from his EHC plan.
22. The Council told her that if Mr Y would stay on roll with his current school, the school could agree and fund alternative provision to meet his needs set out in section F of his EHC plan. Once Ms X found out that she would have no support from the Council she withdrew her request to electively home educate Mr Y.
23. In early August 2021 the Council emailed Ms X and said it requested Mr Y’s school to make the necessary arrangements and refer him for his preferred 14-16 college course. The Council emailed Ms X two weeks later to ensure that Mr Y’s school had contacted her to discuss the courses with her and Mr Y. From the information we have seen, once this offer was made Mr Y found it difficult to attend the provision Ms X originally wanted him to get, and the Council did not pursue this further. Instead, it kept in contact with Ms X to discuss and agree other services that Mr Y could access.
24. In mid-January 2022 the Council told Ms X that if she wanted to submit a new personal budget request it could consider it at the upcoming annual review.
25. The Council held Mr Y’s annual review in early March 2022. Ms X made a referral to Child and Adolescent Mental Health Services (CAMHS). It offered Mr Y Cognitive Behaviour Therapy, but she said Mr Y did not engage with it. Ms X told the Council that she thought Mr Y needed 1:1 counselling and/or clinical psychotherapy.
26. A few days after the annual review the Council said that it would consider her new personal budget request.
27. The Council accepted that this did not happen until six months later, August 2022. When it did, the Council concluded it needed more information to be able to decide if it would agree the personal budget.
28. In mid-August 2022 the Council asked Ms X to submit what outcomes the provision related to in Mr Y’s EHC plan and copies of quotes for the proposed provision. She replied two days later and provided all the information the Council requested. She also told the Council which educational provider Mr Y would like to attend. Ms X further explained that the therapies she outlined in her personal budget request were part of the Educational Psychologists’s report. These therapies however were not included in section F of Mr Y’s EHC plan.
29. The Council said that it referred young people to CAMHS for any therapies they needed, and it would do the same for Mr Y. If it could not meet his needs, the Council expected the service to suggest alternative provisions. Ms X said that she had contacted CAMHS, and it offered the CBT again, but Mr Y did not engage with this in the past. She also told the Council that CAMHS said it had no other suggestions on how to meet Mr Y’s needs.
30. In September 2022 Mr Y began attending his preferred educational setting.
31. Ms X chased the Council for an update in November 2022. In mid-December 2022 the Council told her that it declined her personal budget request because it did not secure provision from Mr Y’s EHC plan that targeted specific outcomes.
32. In response Ms X told the Council that Mr Y had unmet Speech and Language Therapy (SALT) needs. The Council told her to contact advice clinics and gave her information on how to do it. It said that it would refer Mr Y for an assessment if this was the recommendation of the free consultation with the clinic.
33. In mid-December 2022 Ms X complained to the Council about its decision not to agree a personal budget for Mr Y. Around the same time the Council emailed Ms X and told her that the Council did not agree to a personal budget because she had requested money for provision which was not named in section F of Mr Y’s EHC plan and the Council considered this would not be an efficient use of its resources.
34. The Council also responded to her complaint at the end of the month and said:
• she had originally asked for £43,000 to home educate Mr Y. The Council considered this in July 2021 and explained that a personal budget could not be used for elective home education;
• she could have voiced her concerns and suggested changes to Mr Y’s EHC plan during the annual review process if she believed the plan did not meet his needs; and
• it should have sent her its personal budget decision sooner, and it apologised for the delay in doing this.
35. Ms X was unhappy about the Council’s response and in January 2023, she asked it to review her complaint.
36. The Council issued its final response to Ms X’s complaint in late March 2023. It partially upheld her complaint and said that:
• she could have raised her concerns about the contents of Mr Y’s EHC plan during the annual review;
• it correctly considered her last personal budget request but was late to send her its decision. The Council apologised for the delay; and
• its first complaint response did not address all the personal budget requests she made since 2019 because they were over 12 months old, and the Council considered her complaint to be late.
37. The following month Ms X told the Council she believed Mr Y had needs that his EHC plan was not meeting, and that the Council should reassess him. In response the Council told Ms X about two other educational providers that could be available to Mr Y. The Council said that it believed Mr Y did not want to attend college at this time.
38. Ms X was unhappy about the Council’s response, and she complained to us.

Analysis

Section F of Mr Y’s EHC plan

39. Ms X told us that Mr Y did not receive all the provision named in section F of his EHC plan. She said this was the case since 2019.
40. The Council told us that since 2019 Mr Y was being supported in the school that he was enrolled with. Having looked at the final amended plan the Council issued to Mr Y in 2019 and that remained his current plan until March 2022, we cannot see that Mr Y missed provisions from section F of his plan. Because of this we cannot say that the Council was at fault.
41. The Council advised Ms X that she should bring this up during the annual reviews, and this is correct. Additionally, should there continue to be a disagreement about what should be included in Mr Y’s EHC plan Ms X has the option of appealing the contents of the plan to the SEND Tribunal.
42. Between November and December 2022 Ms X told the Council Mr Y had SALT needs that she considered were not included in his EHC plan. The Council acknowledged this and referred her to a free online assessment. We have not found fault with the Council’s approach. However, we consider the Council missed an opportunity to consider if Mr Y’s EHC plan reflected all his needs.
43. In April 2023 Ms X asked the Council to reassess Mr Y’s needs. The Council did not respond to this request and this is fault. This is the second time Ms X said that Mr Y had unmet needs, and the Council missed an opportunity to ensure Mr Y’s EHC plan was suitable for him and reflected all his needs.
44. This caused Ms X avoidable frustration and distress as she felt that Mr Y’s EHC plan did not meet all of his needs.
45. In September 2023 whilst investigating a different complaint we made a recommendation for the Council to identify reasons for any delays in EHC needs reassessments and prepare a plan of action to ensure improvement. For this reason we did not make another service improvement recommendation in this decision.

Changes to Mr Y’s EHC plan

46. Ms X said that the Council did not share any changes to Mr Y’s EHC plan with them.
47. Between 2021 and 2023 the Council held three annual reviews of Mr Y’s EHC plan:
• in the summer of 2021;
• in March 2022; and
• in March 2023.
48. Following the annual review in the summer of 2021 the Council sent Ms X the draft EHC plan for her comments. However, this did not happen in March 2022 or in March 2023. On those two occasions the Council told Ms X it would amend Mr Y’s plan but did not give her an opportunity to comment before it issued his final amended EHC plan. This is fault.
49. This caused Ms X and Mr Y injustice. Ms X complained about the Council not listening to her and Mr Y about what support they needed, and this may be because they were not asked to comment on the changes to the last two of Mr Y’s EHC plans.
50. We have also found that various letters to Ms X about Mr Y’s EHC plan used a wrong name and/or gender when referring to him. This is fault.
51. This has contributed to Ms X and Mr Y feeling not being listened to and falls below the good administrative practice we would expect from the Council.

Personal budget requests

52. The Council considered Ms X’s personal budget request from July 2021 in the same month. It communicated its decision in writing, and it told Ms X why the decision was refused. We have found no fault with how the Council dealt with this request. However, the email that told Ms X that her request was refused contained no information about her right to appeal the decision. This is fault.
53. We cannot say if Ms X would have asked for a review of the Council’s decision, however it is likely that she would have challenged the decision. Because of the Council’s actions Ms X lost that opportunity.
54. The Council accepted that following the request for a personal budget Ms X made in March 2022, it did not consider it until August 2022. This was a significant delay and fault.
55. This caused Ms X avoidable distress and uncertainty about what was going to happen. She also spent avoidable time chasing the Council for its decision.
56. The Council wrote to Ms X in December 2022, and it told her that her latest personal budget request was not successful. It gave her a clear reason and it told her about her right to review this decision. We have found no other fault in the Council’s considerations except for the one detailed in paragraph 48.

Back to top

Agreed action

57. Within one month of my final decision the Council will:

• pay Ms X £400 in recognition of the avoidable distress caused by the Council’s delay to consider her personal budget request in 2022 and failing to ask her for comments on Mr Y’s draft EHC plans in 2022 and 2023;
• pay Mr Y £100 in recognition of the avoidable distress he experienced as a result of the Council referring to him by a wrong name and gender; and
• respond to Ms X’s request for a re-assessment of needs if she would still want one. The Council should tell Ms X if it will re-assess Mr Y’s needs to ensure that his EHC plan and the provision within it is an accurate reflection of his needs.

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

Back to top

Final decision

59. The Council was at fault, and it caused Ms X and Mr Y injustice. It agreed to remedy the injustice its actions have caused, and our investigation is now complete.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman