• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to amend her son, Y’s, Education Health and Care Plan within statutory timescales, to provide a personal budget and appropriate education for him between December 2022 and September 2023. We find there was a delay in issuing an amended Plan following an annual review and failure to provide the provision in Y’s Education Health and Care Plan. The Council has agreed to apologise and make financial payments to remedy the injustice caused to Y and Mrs X.

The complaint

1. Mrs X complains about the Council’s failure to:

1. produce an Education Health and Care Plan within statutory timescales following an emergency annual review in December 2022; and
2. provide her son, Y, with alternative education and SEN provision from December 2022, as he was unable to attend school during this period.

2. Mrs X says that Y has missed out on receiving an education and this has impacted his development and wellbeing. Mrs X also says this has caused the family significant distress and uncertainty.

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The Ombudsman’s role and powers

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. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
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. 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. 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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How I considered this complaint

8. I considered the information provided by Mrs X and discussed the complaint with her. I made enquiries of the Council and considered its response.
9. Mrs X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Legal and administrative background

10. 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 First-tier Tribunal (Special Educational Needs and Disability) or council can do this.

Reviewing EHC Plans

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. 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) 
13. 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

14. The First-tier Tribunal (Special Educational Needs and Disability) (the Tribunal) considers appeals against council decisions regarding special educational needs.
15. There is a right of appeal to the Tribunal against:

• 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;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Provision

16. 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) 
17. 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

18. 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.
19. 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.
20. 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

21. Below is a brief chronology of key events. It is not meant to show everything that happened.
22. Y is of secondary school age and has special educational needs. He had an EHC Plan that was finalised in April 2022. The Plan set out support for Y with communication and interaction, cognition and learning, regulating his emotions including developing his physical and sensory needs.
23. Y was on roll at a specialist setting (School A). School A requested an emergency annual review of Y’s EHC Plan in early December. School A said it could not meet Y’s needs and terminated the placement.
24. Mrs X requested a personal budget for Y in early February 2023. She suggested:

• riding lessons;
• trampolining;
• online mentoring;
• learning mentor;
• 2 courses;
• physical education;
• occupational therapy assessment
• clinical psychology support;
• laptop;
• Speech and Language Therapy (SALT) for annual review; and
• monies for riding equipment and learning materials.

25. The Council told Mrs X that her request for a personal budget would be discussed at a district panel meeting on 27 February.
26. In March, Mrs X sent an email to the Council stating that Y had been out of education for almost two and a half years. Mrs X said following the recent annual review Y had received no interim provision and communication from the Council had been poor.
27. The Council told Mrs X that it had considered the personal budget request but required additional information before it could be agreed. The Council explained the budget had to match Y’s needs and provision already outlined in his existing EHC Plan before it could be agreed. The Council explained that a personal budget would not be provided for trampolining, a laptop, riding lessons and equipment.
28. Mrs X expressed her disappointment and asked whether an interim budget could be provided. Mrs X said she would provide the additional information when she had time.
29. In May, the Council sought further advice about Mrs X’s request for a learning mentor for Y. Mrs X requested that Y be supported by a relative that would provide mentoring and support with activities. Mrs X wanted the Council to pay the mentor directly and not out of Y’s personal budget.
30. Mrs X complained to the Council on 5 June. Mrs X said the Council had not amended Y’s EHC Plan following the annual review and had failed to agree a personal budget for Y. She said the Council had denied her a right to appeal and Y remained out of education.
31. The Council sent Mrs X a proposed amended EHC Plan in mid-June and invited her comments. The EHC Plan stated a personal budget was awaiting to be agreed by the Council. The Council apologised for the delay in sending the amended EHC Plan.
32. The Council responded to Mrs X’s complaint at stage one of its complaint’s procedure. The Council said that it had been working with Mrs X to agree what the personal budget could be used for. The Council acknowledged that Y had not attended school since December 2022. The complaint was partially upheld. Mrs X remained unsatisfied and made a stage two complaint in July.
33. The Council sent Mrs X a further proposed amended EHC Plan in mid-August. The Council confirmed that it had agreed to fund occupational therapy and a SALT assessment, psychology sessions and 15 hours of support including activities. The Council said if Mrs X agreed with the Plan, it would send out an agreement letter and finalise the agreed budget. The Council said if Mrs X did not agree, she would have the right to appeal.
34. The Council responded to Mrs X’s stage two complaint. The Council said the delay with the annual review not being actioned was due to Mrs X not providing the information that was needed for the personal budget. The Council said it had not agreed to Mrs X employing a relative to take on the role of a mentor to Y and as his personal assistant. The Council also said that many of the items Mrs X was asking for were not considered essential to meet the identified needs in Y’s EHC Plan and could therefore not be agreed. The Council said a personal budget had been agreed “some time ago” but Mrs X had not provided quotes for the tuition and assessment she had asked the Council to commission.
35. The Council issued an amended final EHC Plan in September with a personal budget for Y.

Analysis

Delays in the EHC Plan review process

36. An emergency annual review was held in December 2022. In line with statutory guidance the Council should have told Mrs X if it intended to maintain, amend or discontinue that EHC Plan within four weeks and issued an amended final EHC Plan within a further eight weeks. The Council did not issue the draft amended EHC Plan until mid-June 2023 and did not issue a final amended EHC Plan until mid-September. That was fault.
37. The faults identified caused Mrs X frustration and distress and delayed her right of appeal to the Tribunal if she disagreed with the content of the EHC Plan.

Personal budget and provision

38. The Council is under a duty to secure provision in an EHC Plan. The EHC Plan of April 2022 set out provision based in a school. The Council was aware in December 2022 that School A had terminated the placement. Therefore, the Council was aware that Y was not receiving the provision outlined in his EHC Plan. Yet, the Council made no alternative arrangements.
39. The Council said it agreed a personal budget in June 2023, but it still needed to decide some elements of the package and had requested additional information from Mrs X. However, as the Council did not issue a final EHC Plan with the agreed personal budget until September, under Section 42 of the Children and Families Act 2014, it remained responsible for securing all the provision in Y’s Plan prior to this. Failure to provide this provision was fault.
40. Y was left without suitable provision for just over two academic terms. In deciding a suitable remedy, I have considered that it would have been difficult for the Council to arrange alternative provision in December, as School A terminated Y’s placement without notice. Therefore, I recommend the Council make a payment for the period January 2023 to September 2023.
41. The faults also caused Mrs X significant distress and uncertainty and she faced the additional pressure of having Y at home for a lengthy period.

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Agreed action

42. Within one month of my final decision the Council will:
    • 1. apologise for the fault and injustice described in this statement;
      2. make Y a payment of £4,800. This is at the highest end of our published Guidance on Remedies. It reflects the severity and complexity of Y’s special educational needs and the absence of provision during the period he was out of education; and
      3. make Mrs X a payment of £500 to reflect the injustice caused to her.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have found fault by the Council causing a significant injustice to Y and Mrs X. I have competed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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