Summary: Mrs X complains about the Council’s handling of her child’s, Child Y, education. The Council was at fault for not ensuring Child Y received all the provision in their Education, Health and Care (EHC) Plan and associated personal budget from February to October 2022. The Council also delayed or failed to complete EHC Plan annual reviews between 2021 and 2023. The Council has agreed to apologise and make payments to Mrs X and Child Y for the injustice caused by these faults.

The complaint

1. Mrs X complains about the Council’s handling of her child, Child Y’s education. She says the Council failed to ensure Child Y received all the provision specified in their Education, Health and Care (EHC) Plan and delayed completing the EHC Plan annual review which in turn meant there were gaps in receiving personal budget payments. Mrs X had to either fund Child Y’s provision herself or halt it while the Council did not make the personal budget payments. Mrs X is also concerned the Council did not notify her straight away when it lost Child Y’s records. She is worried these problems will continue and that Child Y will keep missing out on provision.

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The Ombudsman’s role and powers

2. 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.
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. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), 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)
6. 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 and have not investigated

7. I have investigated Mrs X’s complaint from the point when the Council issued Child Y’s final EHC Plan on 4 February 2022 following the SEND Tribunal hearing to the point when Mrs X brought her complaint to the Ombudsman. I have however included details in this statement of events that occurred before the Tribunal hearing for context.
8. I am unable to investigate the concerns Mrs X has about an alleged data breach by the Council. This is because such issues fall within the remit of the Information Commissioner’s Office to investigate.

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How I considered this complaint

9. I have spoken to Mrs X and considered the information she has provided in support of her concerns.
10. I have considered the information the Council has provided in response to my enquiries.
11. Mrs 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

Relevant guidance

12. A child or young person with special educational needs (SEN) 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 council can do this.
13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.   

15. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review. There may also be situations when an emergency review is required for example when a placement is at risk of or has broken down.
16. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20 (10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
17. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
18. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

What happened

19. This is a timeline of key events and does not include everything that has happened.
20. Child Y has a diagnosis of Autistic Spectrum Disorder (ASD) with some signs of Attention Deficit Hyperactivity Disorder (ADHD) and Pathological Demand Avoidance (PDA). Child Y has received support through an Education, Health and Care (EHC) Plan since at least 2020.
21. In late March 2021, the Council completed an annual review of Child Y’s EHC Plan. It issued a final amended EHC Plan to Mrs X in late July 2021, the content of which she appealed to the SEND Tribunal.
22. The Tribunal issued its order on 22 January 2022. The Council issued the final EHC Plan following this to Mrs X on 4 February 2022. No EHC Plan annual review appears to have taken place in 2022.
23. The EHC Plan issued sets out that Child Y should receive 12 hours of Education Other Than At School (EOTAS) per week from an alternative provider, in addition to a personal budget to enable Child Y’s parents to purchase a package of education flexible to Child Y’s needs. The EHC Plan states that personal budget payments will be made to Child Y’s parents every half term, covering the period from January to July 2022. Shortly prior to issuing the final EHC Plan, the Council advised Mrs X that two providers (Company B and Company C) had been approached to deliver the EOTAS package for Child Y.
24. The Council appears to have subsequently been advised Company B was unable to provide a placement to Child Y until September 2022. Company C also informed the Council it could no longer provide a placement to Child Y. The Council made four out of the six half termly personal budget payments to Mrs X between late February and July 2022.
25. Mrs X made a stage one complaint to the Council on 5 October 2022 because the personal budget payments had stopped and Child Y’s placement at Company B had only just started in September 2022. Mrs X complained the Council had failed in its legal duty to ensure the provision specified in Child Y’s EHC Plan was delivered from February to September 2022.
26. The Council responded to Mrs X’s complaint on 11 October 2022. It explained the personal budget had to be revisited and agreed to continue payments. The Council confirmed it had agreed to continue making personal budget payments to Mrs X. However, an error had led to the remaining two payments not being generated and issued as planned. The Council apologised to Mrs X for this and explained that it would make the remaining payments to her by 19 October 2022.
27. Child Y continues to receive EOTAS provision from Company B and Mrs X has reported that personal budget payments for 2023 have so far been paid. The Council started the annual review of Child Y’s EHC Plan in early February 2023, which it completed in early July 2023.
28. Mrs X made a further complaint to the Council on 5 March 2023. She continued to highlight concerns about the lack of SEN provision Child Y received from February 2022 to September 2022, the Council’s failure to respond to Company B’s proposal to increase Child Y’s personal budget to better meet their needs and a breach by the Council of the General Data Protection Regulations 2018 as Child Y’s personal data had been disclosed to an unknown third party who had used the information to contact Mrs X.
29. The Council responded to Mrs X’s complaint on 4 April 2023. The Council confirmed EOTAS provision at Company B and Company C had been agreed as part of the SEND Tribunal appeal in December 2021. The Council also advised Mrs X the increase in personal budget was being considered by the relevant panel and the allocated caseworker would update Mrs X on progress. The Council apologised for the delay in Child Y’s personal budget being agreed in September 2022. The Council explained it could not fully investigate the alleged data breach given the passage of time (nine months) since the incident occurred. It sought to reassure Mrs X that relevant staff received mandatory training on data protection. The Council apologised for the distress caused by this issue.
30. Mrs X brought her complaint to us after this as she remained dissatisfied with the Council’s handling and responses. When I spoke to Mrs X about her complaint, she told me the Council had still not sent her nor Company B a copy of Child Y’s final amended EHC Plan that had been completed in early July 2023.

Analysis

31. The Council has had two opportunities to consider and respond to Mrs X’s complaints about its handling of Child Y’s education provision. On both occasions, the Council has not addressed Mrs X’s specific concerns about its duties under section 42 of the Children and Families Act to ensure a child received the SEN provision set out in section F of an EHC Plan. The Council’s failure in this respect was fault which caused Mrs X considerable frustration and distress. The Council has not provided me with any explanation for this failure in response to my enquiries.
32. Child Y did not receive the EOTAS provision set out in their EHC Plan from Company B and Company C from 4 February 2022 to September 2022. Delays in the Council making personal budget payments to Mrs X in September 2022 also meant Child Y missed out on SEN provision within their EHC Plan. In total, Child Y appears to have missed out at least half of their SEN provision for approximately two terms from 4 February to 19 October 2022. This is fault which the Council has failed to appropriately remedy. I have used out Guidance on Remedies to determine the level of remedy payment I have recommended the Council makes for missed SEN provision in this case.
33. The lack of some provision and personal budget funding for provision has no doubt caused considerable disruption for Child Y and their family. Mrs X says that she has tried to cover the costs of provision when Council funding stopped, but ultimately had to halt provision due to the impact on the family’s finances.
34. Mrs X has also raised concerns about the delays in the EHC Plan Annual Review process for a number of years. The Council appears to have failed to meet statutory timescales in 2021 and 2023 by approximately two months on each occasion. There appears no evidence the Council undertook an Annual Review of Child Y’s EHC Plan in 2022, despite guidance being clear that EHC Plan reviews should be completed regardless of any ongoing SEND Tribunal appeal.
35. The Council also failed to provide Mrs X and Company B with a copy of the final amended EHC Plan last July 2023 until we prompted it to, which is fault. I can therefore understand Mrs X concerns about whether these problems will continue to occur. The process between EHC Plan reviews and personal budget requests does not appear seamless to ensure the Council does not create avoidable delay in issuing any funding agreed.
36. In response to my enquiries about the loss of Child Y’s file, the Council has explained the allocated caseworker made an error by updating details on an old version of Child Y’s EHC Plan. The Council believes this is the reason why some of the more recent professional reports about Child Y were missing from the draft amended EHC Plan Mrs X received, rather than a loss of Child Y’s file. It would have been helpful if the Council had explained this to Mrs X at the time.

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Agreed action

Remedy for personal injustice

37. Within one month of my final decision, the Council has agreed to:

• make a written apology to Mrs X and Child Y for the injustice caused by the faults identified in this decision statement. The apology to Child Y should only be provided if Mrs X feels this is appropriate and in a format that best suits Child Y’s needs. The apologies should also be in line with our Guidance on Remedies, which sets out our expectations of councils when it comes to delivering meaningful apologies;
• make a symbolic payment of £500 to Mrs X in recognition of the distress, uncertainty, time and trouble caused by the Council’s faults in its handling of Child Y’s SEN provision, annual review delays and poor complaint responses; and,
• make a payment of £3,000 to Mrs X for the benefit of Child Y for missed SEN provision from 4 February to 19 October 2022.

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

Service improvements

39. Over the last few years, we have issued multiple decisions highlighting failings by the Council’s SEN Service. Since April 2023, we issued decisions where the Council agreed the following recommendations to:

• ensure its reforms improve adherence to statutory timescales for producing new EHC Plans and annual reviews;
• prevent recurrence of delays in deciding personal budget requests;
• make sure it undertakes to review EHC Plans every 12 months, regardless of whether there is an ongoing appeal;
• seek records regarding the amount of education missed by a child or young person, once the Council becomes aware provision is not being delivered; and,
• issue the final EHC Plan and associated appeal rights to the SEND Tribunal with the child or young person’s family without delay.

40. Those recommendations are all relevant to this case and there seems little benefit in repeating them here. The Council also commissioned an independent review in 2021 to address issues with its SEND services and is monitoring progress against the actions identified within this. However, this case does represent a repetition of the fault with have found in several other cases and the Council must continue to implement the recommended actions to ensure it complies with its statutory duties going forward.

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Final decision

41. I have completed my investigation and uphold Mrs X’s complaint. The Council’s faults have caused Child Y and Mrs X injustice. The Council has agreed to take the action I have recommended to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman