Summary: There was excessive delay in completing an annual review and responding to complaints. There was also fault in the way the Council handled a request for education direct payments. This caused a loss of special educational provision and unnecessary distress, time and trouble. The Council will apologise, make symbolic payments and consider how to improve the timeliness of its service. The complaint is upheld.

The complaint

1. Ms X complains:
• The Council failed to complete an annual review and amend an Education Health and Care (EHC) Plan after November 2022.
• The Council failed to issue a decision within the statutory timeframe following an annual review meeting in October 2023.
• The Council has failed to secure speech and language therapy (S&LT) in an existing EHC Plan from 2020 and, failed to take over provision when the National Health Service (NHS) discharged her child in late 2022.
• The Council has failed to respond to a request for a personal budget via direct payments so parents can commission S&LT themselves.
• There has been unreasonable delay in the complaints process, a failure to adhere to outcomes agreed via local resolution, and a repeat of the same fault in this year’s annual review.
2. As a result of the alleged delay:
• Ms X’s child who has selective mutism has not had their special educational needs met, which is affecting their overall education, friendships, social activities and wellbeing.
• Ms X has been put to unnecessary time and trouble chasing the Council.
• The situation has caused unnecessary worry and upset.
• Ms X says she had to pay for private S&LT advice in October 2022.
• Ms X has been denied a right of appeal to Tribunal since Autumn 2021 because the Council has not provided a final amended plan.

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The Ombudsman’s role and powers

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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
9. 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

10. I have not investigated whether provision in an EHC Plan was secured from 2020 until an annual review in Autumn 2022. I am not satisfied this was raised in Ms X’s complaint to the Council or that the Council had an opportunity to consider and respond to it. I have also seen no good reason why Ms X did not raise this with the Council at the time.
11. I have investigated the Council’s handling of annual reviews in 2022 and 2023, the request for a personal budget (via direct payments), the complaint handling and alleged failure to secure provision since late 2022 when the NHS withdrew.

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How I considered this complaint

12. I have considered information provided by Ms X and the Council including annual review, EHC Plan and complaint documents.
13. I have also spoken to Ms X by telephone.
14. I have considered relevant law and guidance including:

•      The Children and Families Act 2014

•      The Special Education and Disability Regulations 2014

•      The Special Educational Needs and disability code of practice: 0 to 25 years

• The Special Educational Needs (Personal Budget) Regulations 2014.
1. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
2. Ms 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

17. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This 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 education or name a different school. Only the Tribunal can do this.
18. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
19. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
20. Where a 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
21. 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 EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
22. The maximum period to amend an EHC Plan following a review meeting is therefore twelve weeks.
23. Parents have a right of appeal to the Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. The right of appeal is only engaged when the final amended plan is issued.
24. The Council has a duty to make sure the child or young person receives the special educational provision set out in section F of their EHC Plan of (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)  
25. Councils must provide information on personal budgets for special educational provision and must have a policy setting out eligibility criteria, the decision-making process and the parent’s right to request a review if they disagree with a decision to refuse direct payments. Direct payments are where individuals receive the cash to contract, purchase and manage services.

What happened

26. Ms X says her child’s selective mutism became entrenched because they did not receive effective S&LT provision in their EHC Plan when this was first issued in 2020, or subsequently.
27. Ms X paid privately for S&LT advice in October 2022, prior to an annual review meeting in November. This recommended additional S&LT provision be added to Section F of the EHC Plan to address the selective mutism.
28. Ms X requested a personal budget (via direct payments) from the Council to source the new provision herself because the NHS advised it would be unable to provide it. The NHS wrote to the Council supporting the recommendations of the private therapist but advising it intended to discharge Ms X’s child at the end of 2022. It said the recommendations were above the resources of local NHS S&LT provision and the Council would need to commission this via education funding.
29. Ms X told the Council her child had only four meetings with NHS S&LT over the previous three years. Ms X also raised these issues at the annual review meeting held in mid-November 2022.
30. Ms X said she contacted the Council multiple times between December 2022 and March 2023 following the review, but her calls were never answered, and her emails not responded to. Ms X made a formal complaint in early 2023.
31. In May 2023 the Council issued a decision following the November 2022 review meeting that it would amend the Plan. It issued a draft Plan that included the new S&LT provision but refused a personal budget via direct payments. Ms X says the draft Plan did not state who would provide the new provision. Ms X asked the Council to clarify this. She also asked for some other changes to the draft Plan.
32. In June 2023 the Council said it would start the process of commissioning the new provision and once this was arranged a second draft Plan would be issued.
33. In October 2023, after further chasing by Ms X, the Council responded to Ms X’s complaint simply reiterating her case had been considered for a personal budget (direct payments) but a decision made to commission directly and a draft Plan had been issued in May. It said her suggested amendments were under consideration. The Council said this was the stage one response to the complaint. It cited staffing issues and high levels of communications as reasons for the delay. Ms X responded that this added nothing to what she already knew.
34. In November 2023, Ms X complained to the Council again about continued delay. Ms X was still waiting for the second draft Plan and no provision had been commissioned. Ms X said she had offered a low-cost option of direct payments to commission the provision herself in November 2022 and her child had now unnecessarily missed an additional year of provision. Ms X requested a telephone call and for the Council to action the next annual review paperwork provided by her child’s school in October 2023.
35. Since issuing my draft decision, the Council has finalised the November 2022 review by issuing a final EHC plan and giving Ms X a right of appeal.
36. The Council told me it has also reached a decision following the October 2023 review meeting to further amend the EHC Plan.
37. The Council has now provided Ms X with a further decision on her personal budget request. It has declined the request on the basis the Council is able to meet the provision via an existing contract. The Ombudsman has no jurisdiction to question the judgment the Council reached. (Local Government Act 1974, section 34(3), as amended) If Ms X is dissatisfied, she has a right to request an internal review of this decision (The Special Educational Needs (Personal Budget) Regulations 2014, Regulation 7(a)).

Analysis

38. The Council should have issued a decision to amend after the November 2022 annual review within four weeks and a final amended plan by early February 2023. Failure to do so was fault. A process that the law states should take a maximum of twelve weeks has taken fourteen months. This is excessive delay. The Council has acknowledged fault in its response to my draft decision and now issued a final Plan to give Ms X a right of appeal.
39. There has also been fault in the complaint process. The Council exceeded a reasonable timeframe for a complaint response and then failed to carry out actions it said it would do.
40. But for the fault the Council would have secured the new S&LT provision recommended, and which it and the NHS agree is appropriate, by early February 2023.
41. Ms X’s child remained entitled to S&LT provision in their existing EHC Plan when the NHS withdrew provision in late 2022. The Council failed to step in and provide this. This was fault.
42. The annual review process is required to ensure Plans stay up to date but also that parents have a right to challenge provision to an independent tribunal at least annually. Ms X was denied this right between Autumn 2021 and January 2024. The loss of appeal rights is an injustice.
43. A further annual review meeting was held in October 2023, before the Autumn 2022 review was completed. The Council took three months to issue a decision after this review, rather than the four weeks allowed. This was a repeat of previous fault and delay. The Council’s decision is to amend, but it has not yet provided an amendment notice or proposed amended plan. The delay in completing this review therefore continues.
44. In 2022-23, the Council failed to comply with the Regulations for Personal Budgets to inform a parent in writing when refusing direct payments of:
• its decision;
• the reasons for its decision; and
• the right to request a review of the decision.

This was fault.

45. The Council has now reached a decision on the personal budget request, written to Ms X with reasons, but failed to advise Ms X of her right to request a review. I am satisfied Ms X is aware of this right via this decision.
46. I find the Council’s complaint handling and communication with Ms X has been poor. Many opportunities to put things right have been missed. As a result, Ms X has been put to unnecessary time and trouble. While the Council has very recently made progress with Ms X’s case, it now needs to complete the October 2023 review and secure the S&LT without further delay.
47. I have not recommended reimbursement of the private S&LT advice in October 2022, this pre-dated the fault which is the subject of the complaint.

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Agreed action

48. Within four weeks of my final decision:
• The Council will apologise to Ms X for the fault identified in this decision statement.
• The Council will pay Ms X, on behalf of her child, £1000 to acknowledge the impact of missed S&LT provision in 2023.
• The Council will pay Ms X £300 for her time and trouble, distress and the loss of appeal rights.
49. If the Council further delays in completing the October 2023 review or fails to secure the provision in the January 2024 final EHC plan, Ms X would need to raise this as a new complaint with the Council in the first instance. If she remains dissatisfied, she can ask the Ombudsman to consider investigating.
50. The Ombudsman has made similar findings of fault about the Council’s handling of personal education budgets in a recent complaint from another family, and so I do not need to make further service improvements about this issue.
51. The Council will review why there has been such excessive delay in its handling of Ms X's complaint and her child’s EHC Plan, whether this is part of a wider problem at the Council and explain to the Ombudsman what actions it intends to take to improve its timeliness in completing annual reviews and responding to complaints. This information should be provided within two months of my final decision.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. There was excessive delay in completing an annual review and responding to complaints. This fault has been repeated in a subsequent review. There was also fault in the way a request for education direct payments was handled. This caused a loss of special educational provision and unnecessary distress, time and trouble. I am satisfied the agreed actions set out above are an appropriate remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman