Summary: Mrs X complained the Council did not issue a final Education, Health and Care Plan (EHCP) after the annual review meeting in December 2022. She complained the Council failed to provide equipment her son, Y, needed to meet his needs. Mrs X said the Council failed to provide the provisions named in his EHCP. Mrs X also said the Council did not respond to her original complaint. She said this has affected her mental health, affected her family financially and impacted Y’s health. The Council was at fault. It did not issue the EHCP within timescales. The Council has agreed to apologise, make a financial payment and remind its staff of the Council’s responsibilities.

The complaint

1. Mrs X complained the Council did not issue a final Education, Health and Care Plan (EHCP) after the annual review meeting in December 2022. She complained the Council failed to provide equipment her son, Y, needed to meet his needs. Mrs X said the Council failed to provide the provisions named in his EHCP. Mrs X also said the Council did not respond to her original complaint. She said this has affected her mental health, affected her family financially and impacted Y’s health.

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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. 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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How I considered this complaint

4. I read Mrs X’s complaint and spoke to her about it on the phone.
5. I considered information provided by Mrs X and the Council.
6. 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

Background information

7. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
8. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
9. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.
10. The council has a duty to secure the specified special educational provision in an EHCP 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)
11. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance.
12. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. Where a council proposes to amend an EHCP, 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
14. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
15. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.
16. The Council uses an online hub for all matters relating to the EHCP.

What happened

17. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
18. Y has complex additional needs. The Council provided education by and Education Other than at School (EOTAS) programme.
19. The Council issued Y’s final EHCP in September 2022. The plan detailed Y had an EOTAS package.
20. The EOTAS tutor started sessions with Y in October 2022.
21. The Council held an early annual review in November 2022 as the provision in the EHCP changed. Mrs X asked the Council to look at a budget for Y’s provision. The Council agreed to fund the provision in the plan and asked Mrs X for costs.
22. In December 2022, the Council advised Mrs X it decided to amend Y’s EHCP following his annual review.
23. Mrs X provided the Council with invoices for equipment she bought to support Y’s education in December 2022. The Council agreed to pay the invoices but advised Mrs X to tell it before purchasing any other resources. Mrs X asked the Council about an interactive smart screen for Y. Mrs X asked what the budget for Y’s provision was and asked about managing it. The Council sent Mrs X the personal budget agreement and asked her to sign it. Mrs X refused to sign the agreement, amended the wording and sent it back to the Council.
24. The Council rejected Mrs X’s amendments to the personal budget agreement in January 2023. The Council spoke to Mrs X about the interactive smart screen. It spoke to its supplier about price and specification. The Council told Mrs X, it agreed the funding and asked if she was happy for the Council to order the screen. Mrs X did not agree to proceed and told the Council the smart board was not suitable.
25. In February 2023, the Council advised Mrs X it would provide £1,000 per term for resources. Mrs X told the Council she had identified an interactive smart screen from another company. The Council asked Mrs X to send the details and the quote. Mrs X said she needed to decide what product was suitable first.
26. The Council issued Y’s amended draft EHCP in February 2023.
27. The Council issued Y’s final plan at the start of March 2023. The day after, it decided to continue amending the plan with Mrs X.
28. Mrs X chased the Council for a decision on the interactive smart screen at the end of March 2023. The Council wrote to Mrs X and advised it would reimburse her for the smart screen. It then spoke to Mrs X, who advised she had not bought the smart screen. The Council then issued an updated letter. The letter said the Council would buy the smart screen, but it would remain the property of the Council. It confirmed Y could use the smart screen until he did not need it to meet his needs in the EHCP. Mrs X stated the smart screen was for Y. Mrs X said she would buy it and submit an invoice to the Council. The Council advised the smart screen would remain available to Y while it met his needs but would remain the property of the Council.
29. In April 2023, the Council agreed to make an amendment to its personal budget agreement. Mrs X agreed to sign the document.
30. Mrs X submitted an invoice to the Council at the end of April 2023 for the interactive smart screen. The Council told Mrs X it had not approved for her to buy the smart screen. It said it would not pay the invoice. The Council stated it told Mrs X it had to agree any items she wished to buy for Y before she bought them.
31. The Council set up a personal budget payment for £1,000 per term. This money was for Mrs X to buy learning resources and equipment to meet Y’s needs, set out in his EHCP.
32. Mrs X requested the Council escalate her complaint in May 2023. She said the Council had not responded to her first complaint, it had not issued the EHCP and the Council refused to pay for the smart screen.
33. The Council responded to Mrs X’s complaint in June 2023. The Council advised Mrs X the EHCP was still in draft form. It confirmed the personal budget was in place. The Council told Mrs X it agreed to buy the interactive smart screen but explained it would remain the property of the Council.
34. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to reimburse her for the interactive smart screen, compensate her and provide training for staff.
35. In response to my enquiries the Council stated this was a complex case. It evidenced it had reimbursed Mrs X for resources for Y. It said Mrs X had a personal budget so she could make purchases without having to consult the Council first. The Council confirmed it had an ongoing statutory complaint from Mrs X about social care matters.

My findings

EHCP

36. The Council held the annual review in November 2023. Legislation sets out the Council tell Mrs X what it would do within four weeks. The Council issued the letter, telling her it would amend the plan, within four weeks.
37. Legislation states the Council must start amending the plan without delay. The Council made amendments and issued the draft plan in February 2023.
38. Legislation states the Council must issue the amended final plan as soon as possible, and within eight weeks of the amendment notice. The Council issued the final EHCP in March 2023. This was 13 weeks after the amendment notice, a delay of 5 weeks. This delay is fault and delayed Mrs X’s appeal rights to the SEND Tribunal.
39. Mrs X said she was not aware the Council issued the plan. The Council has evidenced it uploaded the letter to Mrs X to its hub in March 2023. This gave Mrs X appeal rights to the SEND Tribunal. The Courts have established the Ombudsman cannot investigate matters which are closely linked to matters appealable to the Tribunal.
40. The Council then decided it would continue to work with Mrs X to update the plan outside the annual review process. It continued to amend Mrs X’s plan.
41. While Mrs X says she did not see the Council issued the final plan, I have seen evidence the Council uploaded the letter to its EHCP hub. The letter confirmed the Council issued a final EHCP. This gave Mrs X appeal rights to the SEND Tribunal. The Council was not at fault.

Failed to provide equipment

42. Mrs X stated the Council agreed to buy Y and interactive smart screen. I have seen two letters about this matter. The first stated the Council would reimburse Mrs X for the screen. Mrs X told the Council she hadn’t bought the screen. The second letter, sent after speaking to Mrs X, confirmed the Council would buy the screen, but it would remain the property of the Council. The Council sent this letter before Mrs X bought the screen.
43. The Council was clear with Mrs X, she should not buy equipment without authorisation from the Council. Mrs X then bought the screen and invoiced the Council. The Council refused to pay the invoice as Mrs X did not agree to the screen remaining the property of the Council.
44. The Council offered to pay for the interactive smart screen on the understanding it remained the property of the Council. The Council reassured Mrs X, Y would have access to it while it supported him to meet the outcomes named in his EHCP. Mrs X rejected this offer. The offer from the Council is suitable. The offer remains available to Mrs X, should she decide to accept it. The Council was not at fault.

Failed to provide provision in the EHCP

45. The Council has evidenced it has funded a broad range of funding requests and invoices. The Council provided the funding to meet Y’s needs as set out in his EHCP. The Council was not at fault.

Not responding to the complaint

46. The Council confirmed it was dealing with another complaint about children’s social care from Mrs X.
47. Mrs X stated she complained about matters in this case to the Council, and it did not respond. I have only seen one complaint relating to Y’s education in the time this investigation has covered. This was when Mrs X requested the Council escalate her complaint in May 2023. The Council responded in June 2023. The Council was not at fault.

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Agreed action

48. To remedy the outstanding injustice caused to Mrs X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for not issuing the EHCP within timescales set out in legislation. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mrs X £200 for delaying her appeal rights to the SEND Tribunal.
• Remind relevant staff of the Council’s duty to issue EHCPs within timescales set out in legislation.
49. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

50. I have completed my investigation. I have found fault by the Council which caused an injustice to Mrs X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman