Summary: Ms X complains the Council has not dealt properly with her son Y’s Special Educational Needs (SEN). The Council did not hold an annual review properly and delayed paying invoices. Ms X had to spend time and trouble chasing payments. The Council should apologise and pay Ms X £100 for time and trouble and review its invoicing systems/processes.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council has not dealt properly with her son Y’s Special Educational Needs (SEN) because it has:
• failed to provide the paperwork and reports for an annual review;
• failed to carry out an annual review at the right time;
• delayed providing funding for SEN provision; and
• handled her complaint poorly.
2. Ms X says Y has missed SEN provision and the family has suffered avoidable distress and financial problems as a result.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)

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How I considered this complaint

6. I spoke to Ms X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
7. 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

Law, guidance and policies

8. 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.
9. The EHC Plan is set out in sections which include: 
• Section B: Special educational needs.  

• Section F: The special educational provision needed by the child or the young person. 
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

10. 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.
11. 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.
12. The school (or, for children and young people attending another institution, the local authority) must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting. (SEN Code paragraph 9.176) 
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 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.
15. The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC plan. (SEN Code paragraph 9.195) 
16. 9.196 Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice. (SEN Code paragraph 9.196) 

The Council’s complaints process

17. At stage 1, the Council will acknowledge the complaint within 2 working days and respond within 15 working days.
18. At stage 2, if a complainant is unhappy with our decision at Stage 1 they can ask the Council to review it. The complaint will then be looked at by an independent council officer and it will respond within 20 working days.

What happened?

19. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
20. Y had an EHC Plan. It was due to be reviewed in August 2023. Ms X was in receipt of a personal budget for Y. Ms X chased payments for Y’s personal budget.
21. There were problems sending the review documents to Ms X. The annual review had to be rescheduled.

Analysis

Annual review

22. Ms X raised problems with receiving documents by email and asked for them to be sent by recorded delivery in early August 2023.
23. The Council sent document by normal post and again by email. It finally sent the annual review documents by recorded delivery in December 2023, four months after Ms X’s first request.
24. This is fault by the Council. The delay in providing annual review documents delayed the annual review itself.
25. The Council accepts that it did not review Y’s EHC Plan within 12 months of his previous review and that this is fault.
26. The Council held the re-arranged EHC Plan annual review in January 2024.
• It sent the annual review report to Ms X within 2 weeks. This is not fault by the Council.
• It accepts that the annual review report was not sent to all professionals. I have seen email evidence that shows this. This is fault by the Council. This did not cause Ms X any injustice because she was able to make comments on the provision outlined in the draft EHC Plan and will accrue Tribunal appeal rights with the Final EHC Plan.
• It notified Ms X of the intention to amend Y’s EHC Plan within 4 weeks of the annual review date. This is not fault by the Council.

Delayed funding

27. I have seen emails between Ms X and the Council which show Ms X chased invoice payments on multiple occasions in 2023 and 2024. This confirms on at least one occasion that invoice payment dates were not accurately recorded by the Council’s systems.
28. The Council says there have been no delays to payments and has provided accounts records showing invoices have been paid. It provided the Ombudsman with dates that it says payments were made.
29. Email evidence from the Council in early May 2023 shows a payment was released on a specific date. However, the information provided by the Council contradicts this and says the payment was made several days earlier in April.
30. The Council provided information that another invoice had been paid one day after it had been submitted. Email evidence shows this was being chased for payment by Ms X nearly a month later.
31. It appears that the information provided by the Council is not reliable. Where it is accurate, it relates to the date an invoice was approved, not the date an actual payment was made. This means actual payments are likely to have been made outside the 28 day period even if the invoice date and approval date were recorded accurately.
32. On the balance of probabilities, the Council did not always pay invoices on time. This is fault by the Council. Ms X spent time and trouble chasing invoice payments.

Complaints handling

33. The Council responded to Ms X’s complaint at stage 1 within 15 working days. It responded to her complaint at stage 2 within 22 working days.
34. The stage 2 complaint response was slightly outside the timescales set out in the Council’s complaints process. This is fault by the Council. This did not cause Ms X any injustice.

Action by the Council

35. The Council says it has considered the LGSCO’s Remedies Guidance and is of the opinion that a formal written apology to Ms X would provide an appropriate remedy to the faults identified.
36. The Council says, “The Council’s SEN departments are currently on an improvement journey, overseen by the DfE Commissioner. As part of this improvement journey, the Council’s has established working groups to review, improve and embed policies, procedures, and good practice across the service in line with the Council’s legal obligations. Through these groups, the Council has produced Standard Operating Procedures, and we enclose the Annual Review procedure which was implemented from October 2023. The Council is confident that the faults identified in this complaint will be prevented from happening again due to the improved procedures and practices across the SEND teams.”
37. I have seen copies of the procedures and annual review documentation. I consider they are an appropriate remedy in relation to fault relating to the EHC Plan annual review process.

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Agreed action

38. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Ms X for the fault identified in this decision;
• Pay Ms X £100 in respect of her time and trouble; and
• Review its invoicing systems and processes to ensure that submitted invoices are recorded on an accurate date and approved in sufficient time to enable them to actually be paid in the required timeframe.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have found fault by the Council, which caused injustice to Ms X. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman