Summary: Mrs X complained the Council failed to amend her son, Y’s Education, Health and Care (EHC) Plan in line with the statutory guidance, to provide a personal budget and to provide appropriate education for him between April 2022 and December 2023. The Council delayed issuing an amended EHC Plan and failed to provide the provision in Y’s plan from April 2022 to November 2023. The Council agreed to apologise to Mrs X, reimburse her for the provision she paid for and pay her £6,500 to recognise the injustice caused to her and the provision Y missed.

The complaint

1. Mrs X complained the Council failed to amend her son, Y’s Education, Health and Care Plan in line with the statutory guidance, to provide a personal budget and to provide appropriate education for him between April 2022 and December 2023. Mrs X said that Y missed out on education opportunities and she had to fund provision for him herself.

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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 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)
4. 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)
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. Mrs X complained about matters that began more than 12 months before she complained to us. This is a late complaint. However I have exercised discretion to investigate matters since April 2022 when there was an annual review of Y’s EHC Plan. That was a coherent place to begin the investigation and the injustice caused stemmed from that annual review.

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How I considered this complaint

8. I read the documents Mrs X provided and discussed the complaint with her on the phone.
9. I considered the documents the Council sent in response to my enquiries.
10. 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 legislation and guidance

Education, Health and Care Plan

11. 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. 

EHC plan review

12. 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.
13. 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) 
14. Where the council proposes to amend an EHC Plan, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 4 weeks of the annual review meeting. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting. (Section 22(2) and 22(3) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194 and 9.196). 

Appeal rights

15. 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.
16. There is a right of appeal to the Tribunal against a number of decisions, including:

• 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; and
• an amendment to these elements of an EHC Plan.

Provision

17. 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) 
18. 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. 

19. Section 61 of the Children and Families Act allows councils to arrange for special educational provision to be made otherwise than in a school (EOTAS). A council can only agree to EOTAS if it is satisfied it would be inappropriate for the provision to be made in a school.

Personal budget

20. 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.
21. 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.
22. 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.

What happened

23. Y is of primary school age. He has neuro-differences that means he has special educational needs. In April 2022 Y was on roll at school A, and had an EHC Plan that said he needed support with attention and concentration, social understanding and interaction skills and in regulating his emotions. The EHC Plan said Y should attend a ‘mainstream provision’.
24. School A held an annual review meeting of Y’s EHC Plan at the end of April 2022. The record shows Y had previously attended an alternative provision while remaining on roll at school A. Y had not attended any setting since February 2022. It said Mrs X was paying for a weekly tutor, play therapy sessions and animal therapy through provider F. The record said ‘[Y] is not currently attending [school A] or an alternative provision – in order for [Y]’s needs to be met, his provision needs to be addressed’.
25. The Council considered the annual review documents and decided Y needed a specialist provision and it should consult providers. It said it would ask school A to fund interim alternative provision for Y in the interim.
26. The Council consulted three providers in June and July but none could offer Y a place. The Council sent Mrs X a draft amended EHC Plan in July. Mrs X provided her comments on the draft on the same day.
27. The Council looked at Y’s case again at the end of September 2022. Y had not been offered a place, and Mrs X had requested an Education Other Than At School (EOTAS) provision for Y. The Council decided it should consider Y’s case at its complex cases panel (CCF) as EOTAS was not a long-term solution.
28. The Council said its CCF panel decided it should consult another placement for Y. It consulted provider E at the beginning of November. The Council then agreed to EOTAS and said it would backdate payments for provision to September 2022. It asked Mrs X to put together a suggested EOTAS package for Y.
29. Mrs X provided her suggestions for an EOTAS package at the end of November. She suggested:
• Two sessions a week at provider G (equine therapy)
• Online mentoring with provider H
• Two hours a week at provider F (animal therapy)
• Monthly baking box
• Two hours a week tutoring slowly increasing over time
• Art equipment/stationary
• A laptop
30. Mrs X said the play therapy for Y stopped in January 2023 as she could no longer afford to pay for it.
31. In January the Council arranged tuition and 10 hours a week for Y with provider G to start in February 2023. It told Mrs X that Y had been removed from the roll of school A and it was still considering her other suggestions for provision.
32. Mrs X complained to the Council. She said:
• the Council had not given her any information on the tutor and the 15 hours it suggested per week was not achievable for Y;
• it had not decided on the EOTAS package;
• she had been funding Y’s provision (except provider G) since EOTAS was agreed in November 2022; and
• the Council had still not finalised Y’s EHC Plan.
33. The Council responded to Mrs X. It said the tuition could increase over time and it was still considering the other elements of the EOTAS proposal.
34. Mrs X complained to the Council again. She said all her previous points of complaint remained.
35. The Council agreed to the full EOTAS package in March 2023. It told Mrs X it had arranged tuition, provider G and one hour a week with provider H which would start that month. It said it would agree a personal budget for provider F, the baking box, stationery and laptop and would be in contact to arrange it.
36. The Council sent Mrs X a copy of the draft amended Plan in March 2023 and asked her for her comments. On the same day Mrs X contacted the Council and said there was no progress and asked it to escalate her complaint to stage two. The Council reiterated its previous response and stated it did not have a second stage and Mrs X could complain to us.
37. The Council agreed to fund one hour a week of provider H of the easter holidays as Y had missed significant amounts of school. It provided Y a laptop in April 2023.
38. The Council held an annual review meeting for Y’s EHC Plan at the beginning of June 2023. The Council wrote to Mrs X on 6 June 2023 and told her it would amend Y’s EHC Plan. The Council sent Mrs X a draft amended Plan on 27 July 2023. It also told her provider H would continue for one hour a week over the summer break
39. Mrs X said Y stopped going to provider F in September 2023 because she could no longer afford to pay for the placement.
40. The Council wrote to Mrs X and sent her a further amended draft plan for her comments at the end of September.
41. The Council issued a final amended EHC Plan for Y on 14 November 2023. It stated Y would receive Education Other Than At School made up of 15 hours tuition in core subjects and up to 15 hours of alternative provision, some of which would be provided through a personal budget. The Council told Mrs X of her right of appeal to the SEND Tribunal if she disagreed with the content of the Plan.
42. In response to my enquiries the Council said School A should have taken responsibility to commission alternative provision for Y, and it did not know why it had not done so. It also said although Mrs X had provided the invoices for provider F, it had not yet reimbursed her payments.

My findings

Delays in the EHC Plan review process

43. School A held an annual review meeting for Y’s EHC Plan in April 2022. In line with the statutory guidance the Council should have told Mrs X if it intended to maintain, amend or discontinue the EHC Plan within four weeks (and by 27 May), and issued an amended Final EHC Plan within a further eight weeks (and by 22 July). The Council did not issue the draft amended EHC Plan until the end of the July 2022, and did not issue a final amended Plan at all. That was fault.
44. The Council held a further annual review meeting for Y’s EHC Plan in June 2023. It should have told Mrs X of its decision to maintain, amend or discontinue the Plan within four weeks and by 3 July 2023, and issued a final amended Plan within a further eight weeks and by 28 August 2023. The Council did not issue the final amended plan until 14 November 2023. That was a delay of 11 weeks and was fault.
45. The faults identified caused Mrs X frustration and distress and delayed her right of appeal to the SEND Tribunal if she disagreed with the content of the Plan.

Personal budget and provision

46. The Council could not finalise a personal budget until it had agreed the provision in the EHC Plan. The Council agreed to a personal budget when it issued the amended final EHC Plan. However, as the Council did not agree a personal budget until November 2023, it remained responsible for securing all the provision in Y’s plan prior to this.
47. The legislation and case law are clear that it is the Council’s responsibility to arrange the provision in a child or young person’s EHC Plan. The Council said it was unsure why school A had not arranged the provision, however the Council should have taken action to ensure Y received the provision in his plan.
48. The Council was aware in April 2022 that Y had not been attending a provision since February 2022. It said it would ask school A to arrange alternative provision in May 2022. I have seen no evidence the Council assured itself provision was secured for Y until January 2023 when it arranged some tuition and alternative provision. That was fault and caused Mrs X frustration and distress and meant she had to fund provision. Y did not receive all the provision outlined in his plan. I have considered the injustice further below.
49. The Council said it agreed an EOTAS package in March 2023, but it still needed to decide on some elements of the package. The Council did not issue an EHC Plan setting out the EOTAS package and personal budget arrangement until November 2023. The delay was fault and caused Mrs X frustration. When the Council issued the EHC Plan the provision was broadly the same as the previous EHC Plan. Therefore Y should have received that provision for the duration. Y did not receive the full provision in his EHC Plan until November 2023.

Injustice caused to Mrs X

50. I have investigated matters that have occurred since April 2022 so I have only considered injustice caused during this period.
51. Mrs X funded Y’s tutor from April 2022 until February 2023, play therapy from April 2022 until January 2023, and animal therapy from April 2022 until September 2023. The Council said it would reimburse Mrs X for the payments made for the animal therapy to September 2022 but has not yet done so. Mrs X has suffered a quantifiable financial loss. As the Council has gone on to commission the same, or similar provisions for Y I recommended the Council reimburse Mrs X for the payments she made for a tutor, play therapy and animal therapy from April 2022 until the Council took over the funding.

Injustice caused to Y

52. Because of Mrs X’s actions, Y received one hour a week of tutoring, play therapy and animal therapy from April 2022 until January 2023. However, Y did not receive most of the provision in his plan for three terms between April 2022 and February 2023.
53. From February 2023 the Council had secured tutoring and 11 hours of alternative provision, this increased to 12 hours in March 2023 and Y received a laptop to work on in April 2023. This provision continued until November when the Council arranged the full EOTAS package. This meant that Y received most of the provision in his plan, but not all of it for a further two terms.
54. The Council stated it agreed to provide one hour of mentoring a week over the easter and summer breaks in 2023 as Y had missed education. I took this into account when making my recommendations.
55. The Council provided Mrs X her appeal rights if she disagreed with the content of Y’s EHC Plan in November 2023. It would have been appropriate for Mrs X to have used that appeal right, and so I have not investigated this matter further.

Complaint handling

56. Mrs X raised her complaint with the Council more than once. The Council’s response did not set out how it had investigated her complaint, whether it upheld the complaint, what injustice Mrs X and Y had been caused and what action, if any, it intended to take. This caused Mrs X further frustration and distress and I recommended an appropriate remedy for this below. We recently made a service improvement recommendation on complaint handling in another case and so I did not repeat the recommendation here.

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Agreed action

57. Within one month of this decision the Council will:
• write to Mrs X and apologise for the frustration, distress and financial loss caused to her by the Council’s actions;
• pay Mrs X £500 to recognise the frustration and distress caused to her;
• reimburse Mrs X for the payments she made for Y’s tutor, play therapy and animal therapy from April 2022 until the Council took over the funding (on the production of appropriate invoices/receipts/evidence of payment from Mrs X).
• pay Mrs X £6,000 to recognise the three terms between April 2022 and January 2023 Y did not receive the majority of the provision in his plan (this is calculated at £1800 per term and is in line with our guidance on remedies), and the two terms between February 2023 and November 2023 Y received most, but not all, the provision in his plan (this is calculated at £300 per term and is in line with our guidance on remedies). Mrs X should use this for Y’s benefit as she sees fit.
58. Within one month of this decision the Council will:
• remind staff completing annual reviews that final amended EHC Plans must be issued within 12 weeks of the annual review meeting; and
• provide relevant staff with written guidance on the Council’s non-delegable responsibilities under Section 42 Children and Families Act, and what action staff should take when they become aware a child or young person is not receiving the provision in their EHC Plan.
59. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I recommended.
60. The Council will provide us with evidence it has complied with the above actions.

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Final decision

61. I completed my investigation. I found fault causing injustice and the council agreed to my recommendations to remedy that injustice and avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman