Summary: Ms X complains about the way the Council dealt with her request for a reassessment of her child’s special educational needs, a request for a personal budget and her complaints about these matters causing distress and loss of educational provision. We found fault because the Council delayed dealing with the reassessment of needs request and personal budget request. And we found fault by the Council in responding to Ms X’s complaints about both issues. We have recommended a suitable remedy in this case, so we have completed our investigation.

The complaint

1. I have called the complainant Ms X. She complains about the way the Council handled her request for a personal budget for her child, Y and carried out a reassessment of Y’s educational needs. In summary Ms X says the Council:
• Failed to respond to her request for a personal budget in August 2022. Ms X says the Council admitted it delayed dealing with the request. But then refused it without providing valid reasons and failed to advise of her right to request a formal review of the decision.
• Failed to ensure Y has received the social interaction provision in the Education Health and Care Plan (EHC Plan) since August 2022. Y’s school advised the Council it could not deliver the provision and Ms X has funded a social interaction provision herself.
• Poorly handled her complaint about the personal budget request and took too long to reply. Ms X says the Council advises it will usually take 65 days to respond but took 85 days in her case. Ms X says the Council failed to contact her during the 85 days and to fully respond to the issues she raised.
• Failed to make an apology or offer a remedy for the poor communication she received. Ms X says the Council did not offer a remedy for the failure to ensure it provided Y’s social interaction provision delivered in school for the full academic year (2022 to 2023).
• Poorly managed the reassessment of needs process. Ms X says the Council delayed responding to her request for the reassessment of needs. And there was irrational behaviour by the Council such as ignoring expert advice.
• Wrongly ‘censored’ the parental view in section A of EHC Plan which is the parent and child’s view of educational needs. Ms X wants the Council to include all the information she provided in the section.
• The actions taken by the Council regarding the appeal about the EHC Plan issued in December 2021 meant she had to seek legal representation. Ms X wants the Council to refund her costs of doing so.

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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 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)
3. If we consider there was fault we must 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 provide a free service but must use public money carefully. We do not start or continue an investigation if we decide we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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).
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended). 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.
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)
8. 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

9. This complaint is one of a series from Ms X we have investigated. My investigation refers to issues raised between March 2022 and August 2023.
10. I have investigated Ms X’s concerns about the request for a personal budget, the reassessment of needs request and process followed. And the Council’s responses to Ms X’s complaints about the matter. I have also considered Ms X’s concerns about social interaction provision and the content of section A of Y’s EHC Plan.
11. I have not investigated any concerns Ms X may have about the content of the EHC Plan issued after the reassessment of needs in March and April 2023. This is because Ms X had the right of appeal to the SEND Tribunal about the content of the EHC Plan if she disagreed with it. We would expect Ms X to use that right. This is because only the SEND Tribunal can direct the Council to make changes to an EHC Plan where there is disagreement. So, where Ms X disputes the removal of provision in an EHC Plan, or the expert advice taken then she can appeal to the SEND Tribunal on these issues.
12. I have not investigated Ms X’s concerns about incurring costs during the appeal hearing for the December 2021 EHC Plan. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10.

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How I considered this complaint

13. I considered information provided by Ms X and discussed the complaint with her on the telephone. I read documents the Council provided in response to my enquiries.
14. 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

Legal and administrative information

EHC Plan

15. 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.

Reassessment of EHC Plans

16. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
17. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
18. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.
19. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

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.
23. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

Maintaining the EHC Plan

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 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).
25. 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.

Background to the complaint

26. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
27. Y has diagnosed learning difficulties and been subject to an EHC Plan for several years. Y attended a mainstream secondary school. The Council held an annual review of Y’s EHC Plan in July 2021 and issued a final amended EHC Plan in December 2021. Ms X appealed the to SEND Tribunal in June 2022 about the contents of the EHC Plan issued in December 2021. The SEND Tribunal heard the appeal in January 2023. The Council issued a final EHC Plan in March 2023 and April 2023. Y’s placement was listed as the mainstream secondary school until September 2023 when Y would move to a college of further education.

Reassessment of needs

28. Ms X requested a reassessment of Y’s educational needs in March 2022. Ms X says the Council should have told her within 15 days if it agreed to carry out a reassessment of needs. But the Council did not confirm until May 2022 it would carry out the reassessment. The reassessment took place while the Council and Ms X waited for the SEND Tribunal to consider the appeal for the December 2021 EHC Plan. The Council requested advice and information from professionals about Y for the reassessment with the statutory advice deadline for responses due on 4 July 2022.
29. The Council received the Educational Psychologist advice on 18 July 2022 and agreed Y needed a new draft EHC Plan. The Council issued a draft EHC Plan to Y’s school and Ms X in July 2022. The Council updated the EHC Plan and reissued it on 11 August 2022 following a planning meeting held on 5 August 2022. The Council finalised the EHC Plan on 30 August 2022. Ms X has not appealed to the SEND Tribunal about the EHC Plan issued in August 2022.

The Council’s response to my enquiries

30. In response to my enquiries the Council acknowledged a delay of 14 days between the statutory advice deadline receipt for information in July 2022 and receiving the Educational Psychologist’s report. So, the Council could not complete the EHC needs reassessment until week 16 of the process causing a knock-on delay to the rest of the process. There was a further delay caused by the parent and professionals meeting after which the Council issued a further amended draft EHC Plan. The Council issued the final EHC Plan on 30 August 2022. This was three weeks and 1 day after the 20-week date of 08 August 2022.
31. The Council considers it relevant that while dealing with the reassessment of needs Ms X had already registered an appeal to SEND Tribunal about the previous final EHC Plan issued in December 2021. Once the Council completed the reassessment of needs it used the draft EHC Plan to inform the working documents used in the appeal. It produced the final EHC Plan on 30 August 2022, but it could not be made substantive unless and until the SEND Tribunal concluded the appeal. The SEND Tribunal appeal was held in January 2023 after which the Council produced a further final EHC Plan in March and April 2023.
32. The Council comments that although the reassessment process was delayed it did not have a detrimental impact on the provision made for Y. Nor did it delay or significantly impinge on Ms X’s SEND Tribunal appeal.

My assessment – reassessment of needs

33. The Council refers to the timescales for the reassessment of needs being 20 weeks. But the statutory timescales are the Council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. In this case the Council took from 21 March 2022 being the date of Ms X’s request until agreeing to the request 24 May 2022. This was 40 days so was 25 days over the statutory timescale.
34. If the Council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess. The Council agreed to the EHC needs assessment on 24 May 2022 and issued a final EHC Plan on 30 August 2022. This was within the 14 weeks. So, there was a delay at the start when considering the reassessment request as the Council took 40 days. This delay was fault by the Council and the final EHC Plan would have been issued sooner if not for the delay in making the decision to reassess. As a result, the fault would have delayed Ms X being able to exercise her appeal rights if she disagreed with the final EHC Plan issued in August 2022. But as Ms X has not appealed the EHC Plan from August 2022 I do not consider the delay has caused her such a significant injustice to pursue the matter further.
35. Ms X may have some concerns about the content of the reassessment of needs, but this was being actively used and considered as part of the ongoing appeal. So, it is not matter we can consider as paragraph six explains as Ms X appealed to the SEND tribunal about the EHC Plan issued in December 2021.

Request for a personal budget August 2022

36. Y’s final EHC Plan from August 2022 says amongst other provision, the child will have access to a social activity with peers who have similar needs and interest. This will take place weekly in a naturally occurring situation to help with social interaction. In October 2022 Y’s school told the Council it could not implement the provision for social interaction due to Y’s school year age and it could not take pupils out of lessons. Ms X asked for a personal budget to seek provision outside of school. Y’s school supported Ms X’s request. Ms X privately funded Y at a social activity taking place outside of school hours.
37. Ms X made a stage 1 complaint to the Council in April 2023. In summary Ms X requested a backdated personal budget to August 2022 when she made the request and noted it was to cover provision in EHC Plan not being delivered by the school. Ms X asked the Council to provide a remedy for the loss of provision, her expenses in securing the out of school social activity, and an apology.
38. The Council responded at Stage 1 in April 2023. It accepted there was no evidence it had considered the personal budget request. The Council apologised and upheld this part of Ms X’s complaint. The Council explained it had reviewed how it dealt with requests for a personal budget. This was to ensure it followed a robust decision process. The Council asked Ms X to provide information on the social activity and costs so far. Once received it would submit request for the personal budget to the Provision Panel (Panel) to consider.
39. Ms X made a stage 2 complaint in April 2023. Ms X said the Council had overlooked her concerns and considered the issue was with process. But it had not acknowledged or offered a remedy for lack of the social interaction provision outlined in the EHC Plan. Ms X said the Council had not included costs for another social activity she felt Y should attend.
40. Ms X sent information about the social activity she was funding on 21 April 2023. The Panel considered the matter on 25 April 2023, but it did not agree to the request.
41. In August 2023 the Council responded to Ms X’s stage 2 complaint and advised of the Panel’s decision. It explained the Panel did not agree to the personal budget as Y’s access to social interaction could come from after school or lunchtime clubs included in the school day. The Panel said Y was on roll at a school and had access to activities within that setting. The Panel also considered the choice of activity Ms X was paying for did not give enough access to social interaction or communication with peers. The Council’s response did not advise of a right of review of the decision on the personal budget request.
42. The Council did not uphold Ms X’s complaint as it considered the matter was addressed within stage 1 response and apology made. The Council confirmed it did not consider the second social activity costs as it was not included in Ms X’s original request for a personal budget.

The Council’s response to my enquiries

43. The Council accepts it did not send Ms X a decision letter after the Panel’s decision. But says it explained the reasons for refusing the personal budget request to Ms X in the stage 2 response of 03 August 2023.
44. The Council confirmed it reviewed the personal budget request process. But the review did not result in a change of the internal procedures. The current process remains that:
• The EHC Coordinator (EHCCO) reviews a request for a personal budget to ensure it complies with the Special Educational Needs (Personal Budget) Regulations 2014. And requests further information if needed.
• If all information is available, the EHCCO produces a Provision Panel checklist detailing all the information required to enable Panel to reach a decision.
• The Provision Panel considers the information supplied with the request and reaches a minuted decision.
• The EHCCO delivers the decision in written format to parents, the letter also outlines the parents right to have the decision reviewed.
• If agreed the EHCCO produces all of the paperwork required to deliver the personal budget.
• The personal budget is reviewed annually, as part of the annual review of the EHC Plan.

My assessment -personal budget

45. The Council’s documents show it failed to deal with Ms X’s personal budget request from August 2022 until April 2023 which was a delay of eight months. The delay was fault by the Council. It has caused an injustice to Ms X through her time and trouble in pursuing the matter. It has also caused an injustice to Ms X and Y through uncertainty over the decision to be made about the personal budget. I recommend the Council apologises to Ms X for the delay and pays her £250 for the delay and her time and trouble in pursuing the matter.
46. Ms X has borne the costs of the social activity. However, she chose to sign Y up for the social activity before and without receiving the Council’s decision on the personal budget request.
47. The decision not to approve the request was disappointing for Ms X and Y but it is a decision the Council is entitled to make. We do not criticise the merits of a council’s decision unless we have evidence of fault in the way it was reached. I do not consider that to be the case here so there are no grounds for us to question the merits of the Council’s decision to refuse. This is because the documents show the Panel was aware of Ms X’s request, the social activity and reasons for Y participating. The Panel decided not to approve the request due to social interaction being available to Y during the school day and the activity not providing interaction and communication.
48. However, the evidence provided shows the Council failed to tell Ms X of the outcome of the Panel’s decision made in April 2023 until August 2023 when it responded to her complaints. This is a delay of four months. I consider this is fault by the Council as the personal budget procedure says the Council will inform the parent of the decision. The delay and failure to tell Mrs X the outcome for four months will have caused an injustice to Ms X and Y through uncertainty about the decision. The Council should apologise to Ms X for the delay and failure to advise her of the Panel’s decision and pay her £250 for the uncertainty caused.
49. The procedure for a request for a personal budget also says the Council will advise a parent of the right to have the decision reviewed. The evidence shows the Council did not tell Ms X of that right. This is fault by the Council as it has failed to follow its procedure for dealing with a personal budget request. It has caused an injustice to Ms X as she has lost the right to ask for a review when the decision was made in April 2023 and has the uncertainty over whether the decision may have been different if there had been a review.
50. To remedy the injustice caused the Council should apologise to Ms X for failing to tell her of her right to request a review of the decision. It should also pay her £250 for the injustice caused by the loss of her right to request a review. The Council should now advise Ms X of her right to request a review and carry out a review if Ms X wishes to do so. If the Council carries out a review and agrees to Ms X’s personal budget request from August 2022, it should consider reimbursing Ms X’s reasonable costs of funding the social activity in line with the provision of the EHC Plan from August 2022.

Social Interaction Provision

The Council’s response to my enquiries

51. The Council says it has dealt with the lack of social interaction provision when responding to a previous Ombudsman complaint by Ms X (22 009 530). Our investigation into this complaint looked at concerns Ms X raised between December 2021 and September 2022. This included her concerns about some lost provision including social interaction provision named in Z’s EHC Plan issued in December 2021. We found fault and that some provision in relation to peer interaction had not been delivered to Z in line with the EHC Plan. We recommended the Council pay Ms X £900 to acknowledged some of the lost provision to Z including the social interaction and for the frustration and uncertainty caused to Mrs X.
52. However, the timescales for the previous complaint are December 2021 to September 2022 whereas this complaint covers March 2022 to August 2023. There is an overlap between March 2022 to September 2022.
53. The Council says section 1.1 of section F of EHC Plan refers to the Specialist Advisory teacher in Autism visiting at least on a half termly basis to ensure oversight of provision. Y also has a named EHC Coordinator with responsibility for oversight of day-to-day implementation of provision assigned to work with Ms X and Y.

My assessment

54. The Council has not provided any evidence to show it responded to Y’s school advising it could not provide the social interaction. Or that it responded to Ms X’s complaints about the lack of social interaction provision from the August 2022 EHC Plan. As paragraph 25 says we would expect a council to quickly investigate and act on complaints or concerns raised the provision is not in place at any time. There is no evidence the Council has done so in Y’s case. This fault means we cannot say, even on the balance of probabilities, whether Y has been receiving the social interaction provision specified in the EHC Plan. Further investigation is unlikely to resolve this matter.
55. However, the Council says when deciding the request for a personal budget that as Y is attending school there will be social interaction opportunities. And these have been available to Y. So, while we cannot say, on the balance of probabilities whether the social interaction provision as specified in the EHC Plan was provided, it has been possible for Y to participate in some social interaction while at school.
56. On that basis I recommend the Council apologises to Ms X for uncertainty caused by its failure to check Y was getting the specified social activity. And makes a payment of £300 to her for distress caused by this uncertainty. I consider this an appropriate amount for a remedy. I recognise the remedy from previous complaint covers March 2022 to September 2022 and was for loss of provision for other parts of the EHC Plan dated December 2021 including social interaction provision. So, the remedy of £300 recommended in this case for uncertainty is proportionate for October 2022 to July 2023 (being the end of the academic year). Should the Council decide to backdate the personal budget this will remedy any injustice caused by the lack of social interaction as specified in the EHC Plan. Ms X can complain directly to us if she is dissatisfied with its decision on this matter.

The Council’s response to Ms X’s complaints

57. The Council confirms Ms X made her stage 1 complaint on 15 March 2023. Under Council policy, it is required to respond within four weeks. The Council replied to Ms X on 18 April 2023. This was six days after the four-week response date (so five weeks). The Council did apologise to Ms X for the delay in responding and the service had fallen short of standard it would expect.
58. Ms X made her stage 2 complaint on 21 April 2023. The Council confirms the expectation is it will send a response within 3 - 15 weeks. It says it sent the stage 2 response on 03 August 2023 which was after 15 weeks and 4 days (so nearly 16 weeks). But the Council’s website about complaints says will aim to respond to stage 2 complaint within five weeks. But if likely to take longer will contact the complainant to explain why and provide a response within a maximum of 13 weeks.

My assessment- response to complaints

59. The documents show the Council did apologise for the delay in stage 1 response. I consider this sufficient action for it to take as the delay was minimal. However, there is no evidence to show the Council told Ms X the stage 2 response would take longer the Council’s stated timescales. The Council’s response to Ms X shows a lack of clarity on when a stage 2 response should be sent as the stated timescales are different. Because of this I recommend the Council should clarify and make sure officers are aware of the stated timescales. So, there was fault by the Council as it delayed responding to Mrs X by three weeks and did not inform her of the delay. The delay will have caused Mrs X an injustice through frustration in waiting for a response.
60. The evidence shows the Council did not fully respond to Mrs X’s concerns in the Stage 1 and 2 letters. This was because it did not acknowledge Mrs X’s concerns about the failure to ensure Y received the social interaction provision in the EHC Plan or to confirm if anything else been provided. I recommend the Council apologises to Mrs X for the delay in responding to the stage 2 complaint and failure to deal with all concerns especially the lack of social interaction provision. The Council should also pay Ms X £150 for the frustration caused by the failures when responding to her complaints.

Section A

61. Ms X complained the Council edited section A of the proposed draft EHC Plan which was finalised in August 2023. Mrs X says the ‘All about me’ section belongs to Y, and they have the right to express their view without the Council altering the parental input. Ms X wants the Council to reinstate the missing data which is largely historical information.

My assessment – section A

62. Section 9.61 of the Code of Practice says section A should be a clear concise understandable to parents and young people. It should contain the views and aspirations of the young person. Y’s EHC Plan says section A is ‘Information that gives the view, interest and aspirations of the child and their parents or the young person’. It confirms this was the ‘views gathered through the EHC needs reassessment written by Mr and Mrs (X) and gathered through professionals’ discussions with (Y)’.
63. While Ms X feels section A should be more detailed and contain all of Y’s history, it appears on reading to refer to Y’s views and aspirations which are included. And so is in line with the Code of Practice. The Code of Practice reinforces it should be the young person’s views. There is no requirement to add the level of historical detail Ms X wishes the Council to include. Therefore, it would not be proportionate for us to investigate Ms X’s concerns about section A any further.

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Agreed action

64. The Council agreed to the recommendations made and provided us with evidence it has complied with the actions. This is because it has now:
• Apologised to Ms X for the delay in dealing with her request for a personal budget and made her a payment of £250 in recognition of the delay and her time and trouble in pursuing the matter.
• Apologised to Ms X for the delay and failure to advise her of the Provision Panel’s decision in April 2023 and made her a payment of £250 in recognition of the uncertainty caused.
• Apologised to Ms X for failing to tell her of her right to request a review of the Panel’s decision. It has also made her a payment of £250 in recognition of the injustice caused by the loss of her right to request a review. The Council advised Ms X of her right to request a review and carried out a review as Ms X wished to do so. Following the review, the Council has not agreed to Ms X’s request for a personal budget from August 2022.
• Apologised to Ms X for uncertainty caused by its failure to respond to concerns about provision of the specified social interaction and made a payment of £300 to her in recognition for the distress caused by the lack of social interaction provision as specified.
• Apologised to Mrs X for the delay in responding to the stage 2 complaint and failure to deal with all the concerns raised especially the lack of social interaction provision. The Council also made a payment of £150 to Ms X in recognition of the frustration caused by the lack of provision.

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Final decision

I am completing my investigation. There was fault by the Council when dealing with Ms X’s request for a reassessment of Y’s needs, a request for a personal budget and responding to Ms X’s complaints about the matter. I have recommended a suitable remedy for injustice caused in this case.

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Investigator's decision on behalf of the Ombudsman