Summary: Ms X complained about the Council’s failure to comply with an order of the SEND Tribunal and related matters. We have found the Council to be at fault. It took too long to issue an Education, Health and Care Plan that reflected an order by the SEND Tribunal and that included a personal budget. There was also fault with the way it handled Ms X’s complaint. To remedy the injustice to Ms X, the Council has agreed to apologise, make a payment and take action to improve its service.

The complaint

1. Ms X complains about the Council’s actions following a tribunal hearing. In particular, she complains the Council:
1. issued an Education, Health and Care Plan that did not comply with an order by the SEND Tribunal;
2. took too long to arrange a personal budget;
3. does not have a personal budget policy that covers children educated out of school; and
4. failed to properly respond to her complaint.
2. Ms X says the Council’s repeated failure to comply with its legal obligations caused significant distress and frustration.

Back to top

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. When considering complaints, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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)

Back to top

How I considered this complaint

8. I spoke to Ms X about her complaint and considered the written information she provided.
9. I considered the Council’s response to my enquiry letter, including its case records.
10. I considered the relevant law and guidance.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before I make a final decision.

Back to top

What I found

Special educational needs

Education, Health and Care Plans

12. A child or young person with special educational needs (SEN) 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.
13. We cannot direct changes to the sections about their needs (section B), education (Section F), or the name of the educational placement (section I). Only the SEND Tribunal or the council can do this.

SEND Tribunal

14. Parents/young people have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in the plan, or the fact that no school or other provider is named.

Amendments following a SEND Tribunal order

15. Where the SEND Tribunal orders a council to amend an EHC plan, the council shall amend the EHC plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 

Personal budgets

16. A personal budget (PB) 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 PB 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.
17. The council’s duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.
18. The council must ensure the direct payment is sufficient to secure the provision sent out in the EHC plan.
19. Details of the PB should be set out in Section J of the EHC plan. It should provide a detailed explanation of how the PB will be used to deliver agreed provision, the needs and outcomes it will meet and will explain how the money will be used, spent and managed. It does not need to include all the costs involved in supporting the child.

Education other than at home

20. Education other than at school (EOTAS) is a package of education which is council-funded, and should be in section F of the EHC plan.

The Council’s complaints procedure

21. Stage one - the Council aims to respond to complaints within 20 working days.
22. Stage two - the Council aims to respond to complaints within 20 working days.
23. The complainant will be kept informed if there is any delay. The Council’s investigation will be thorough and unbiased.

What happened

24. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
25. Ms X’s son, Y, has SEN and an EHC plan. Since 2021, Y was unable to attend school, in part, due to chronic anxiety. Ms X did not feel a school-based education was appropriate for Y. She wanted him to benefit from a more personalised approach of his education, including online learning, mentoring and community-based activities. She wanted this reflected in Y’s EHC plan and funded by the Council via a PB and direct payment. This was the subject of dispute between the Council and Ms X that led to an appeal to the SEND Tribunal. It is not necessary, for the purposes of this decision statement to detail the specific areas dispute.
26. During the appeal process the Council agreed it would support EOTAS, partly funded by a direct payment. The Council has funded most of Y’s provision by making paying to the various providers directly.
27. At the final hearing in February 2023, the SEND Tribunal specified wording that should be included within the EHC plan. This was confirmed in a SEND Tribunal order issued in March 2023. Ms X provided the Council with a detailed breakdown and costings of the provision that should have been included within the amended EHP plan. This included the cost of a laptop, community-based activities, subscriptions, travel costs and a specialist mentor.
28. The resulting final EHC plan was issued the following month.
29. Ms X told the Council it had not included specific wording agreed at the Tribunal and had failed to include details of the PB. She wrote several emails but did not receive a reply until mid-June 2023. The case worker said the Council had complied with the order and work was ongoing to finalise the PB. She also explained Ms X had specified a number of expenditures that the Council explained it did not have responsibility to pay for.
30. This prompted Mrs X to lodge formal a complaint on 11 July 2023. She said the Council was failing to meet its statutory duties towards Y because he was not receiving the support for his SEN he was entitled to.
31. The Council responded on 18 August 2023. It said it had issued a new final EHC plan that corrected “any inaccuracies from the working document issued by SEND Tribunal”. Ms X, whilst satisfied the new plan was worded correctly, it still did not specify how some support would be funded.
32. Ms X had already asked for her complaint to be escalated to the next stage due to the lateness of the stage one response. Again, the Council failed to meet its own complaint handling timescale at stage two and so Ms X brought her complaint to the Ombudsman in October 2023. We asked the Council to process her complaint.
33. Ms X remained concerned about the EHC plan issued in August 2023. It stated many of Y’s SEN needs would be met by the educational provider. This was not reflective of Y being EOTAS, and so it was unclear to Ms X who was responsible.
34. A further, amended final EHC plan was issued is December 2023. This included a PB agreed by both the Council and Ms X and corrected the reference to the educational provider.
35. A stage two response was issued in mid-January 2024. The Council apologised for the delay in finalising the PB. Ms X was dissatisfied with the brevity of the Council’s complaint responses that did not address her overriding concern that the Council failed to comply with the law and did not have policies and procedures in place to support children who are EOTAS and required a PB.
36. In response to the Ombudsman’s enquiries the Council has said:

• not including the wording specified by the SEND Tribunal was “a genuine oversight”;
• reference to EOTAS within the Council’s PB policy, “is an area of ongoing work”; and
• its complaint responses could have been more detailed to document the progress that was being made and that Y was not left without provision.

37. It also provided some context as to why the PB took so long to finalise. This included carrying out diligence checks and invoice arrangements with mentor chosen by Ms X.

Analysis

38. I will consider Ms X’s separate areas of complaint below.

SEND Tribunal Order

39. The Council accepted it did not include wording specified in the SEND Tribunal Order when it issued the post-tribunal EHC plan. This was fault. It is disappointing the Council did not acknowledge its mistake when the matter was first raised by Ms X after the first EHC plan was issued in April 2023. It is clear from the number unanswered emails from Ms X to the Councill about this issue that it caused her a great deal of frustration. This injustice requires a remedy.

Personal budget

40. The Council was also at fault for failing to include details of the PB in the first post-tribunal EHC plan. The Council says Ms X did not provide information about her chosen providers until May 2023 and this was the reason why it was not included in the first plan. Whilst I accept the development of a bespoke package may take some discussion and negotiation, we still expect the councils to comply with statutory timescales.
41. By law, the Council had five weeks to work with Ms X to determine the PB from the date of the SEND Tribunal order. It was aware arrangements had to be made promptly from date of the final hearing in February 2023. I have seen little evidence of the Council being proactive in finalising the PB. Instead, Ms X repeatedly tried to engage with the Council to discuss the matter over several months, with little or no response. Disappointingly, it took nearly nine months to issue an accurate EHC plan that included a PB. This delay was fault.

Personal budget policy and EOTAS

42. Ms X believes the delay and poor customer service was caused, in part, by a lack of policy and procedure when dealing with requests for a PB in the context of EOTAS. In response to my enquiry about this issue, the Council said, “it is an area of ongoing work”. It is not entirely clear to me what this means in practice, but suggests the Council accepts its policies and procedures should be improved. I agree. The Council’s lack of insight into a child who is EOTAS was highlighted by the content to the August 2023 EHC plan that referred to “the education provider” being responsible for meeting Y’s SEN. This was incorrect and not reflective of Y’s circumstances.
43. It is highly likely that where a child is EOTAS, a PB involving a direct payment will be involved. The Council should have procedures on place to ensure suitable arrangements are made in a timely manner to ensure statutory deadlines are not misses, as was the case here.

Complaint handling

44. I also find fault with the Council’s complaint handling. Not only were both the stage one and stage two responses late, but they failed to address Ms X’s concerns in a meaningful way. Many of her areas of complaint were simply ignored. I accept this will have caused further frustration to Ms because, understandably, she was left feeling the Council was not taking her concerns seriously.

Back to top

Recommended/ agreed action

45. Within four weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise in writing to Ms X.
2. Pay Ms X £500. This is a symbolic payment to acknowledge the distress, poor communication and frustration she experienced during the EHC plan process.
3. Pay Ms X a further £200 to acknowledge the distress and frustration she experienced as result of the Council’s poor complaint handling.
46. Within two months from the date of my final decision, the Council has agreed to;
1. review its systems and practices relating to how it deals with PBs, including where a child is EOTAS. The Council should refer to the Ombudsman’s focus report, “Parent power: learning from complaints about personal budgets”. It should provide the Ombudsman with a short report setting out what action it has taken to ensure a similar situation does not happen again;
2. remind staff in the SEND service of the statutory timescales set out in legislation;
3. remind staff that the details of the PB should be set out in Section J of the EHC plan;
4. provide staff training to ensure understanding of the legal framework and obligations around PBs (direct payments) particularly in relation to the Special Educational Needs (Personal Budgets) Regulations 2014 and Regulation 12 of the SEN and Disability Regulations 2014 (as amended); and
5. remind staff processing complaints of the timescales and requirements in case of delay, as set out in the Council’s Complaints Procedure.
47. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

48. I have found the Council to have acted with fault and the Council has agreed with my recommendations to remedy the injustice to Ms X and Y and improve its service. On this basis, I have completed my investigation.

49. Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman