Summary: Mrs X complains about the Council’s failure to carry out an annual review within statutory timescales, and the delivery of Section H provision to her daughter, Y. Mrs X also complains about the Council’s decision to stop making personal budget payments directly to her. We intend to conclude our investigation having made a finding of fault. We found the Council failed to carry out an annual review when it should have, and failed to inform Mrs X it did not agree with the Tribunals’ recommendations. We did not find fault for the Council’s decision to stop making personal budget payments direct to Mrs X, and have not seen evidence that the Council’s decision impacted the delivery of provision to Y. The Council has agreed to our recommendations.

The complaint

1. Mrs X brings a complaint regarding the Council’s actions which have impacted her daughter Y. Mrs X complains:

1. The Council failed to carry out annual reviews within statutory timescales.
2. Delayed a right of appeal due to delays in carrying out an annual review.
3. Failed to hold discussions regarding the use of a personal budget, and inappropriately suspended the personal budget; and
4. 8 hours of social care provision specified within Section H of Y’s EHCP has not been delivered.

2. Mrs X would like the Council to provide a suitable remedy to acknowledge the impact on Y and the family.

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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. 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)
5. 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 not investigated

6. I have not investigated complaint points c and d prior to October 2022. This is because Mrs X appealed sections B, F and H of Y’s EHCP. As per paragraph 24 and 25 below, the restriction applies from the date the appeal right arose, which is when Y’s EHC Plan was issued in February 2021. Therefore, this limits the scope of my investigation into these two complaint points to begin in October 2022.

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How I considered this complaint

7. I liaised with Mrs X and considered the information she provided. I also made enquiries with the Council and considered the information it provided in response. Mrs X and the Council were offered an opportunity to comment on my draft decision and I considered any comments submitted before making a final decision.

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What I found

Relevant guidance and legislation

EHC plans

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. 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.
9. 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)
10. 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:
11. 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.
12. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. This includes the content of EHC plans. We refer to it as the SEND Tribunal in this decision statement.
13. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This restriction applies from the date the appeal right arose to the date of the appeal hearing.

Tribunal orders and recommendations

14. The SEND (First Tier Tribunal Recommendations Power) Regulations 2017 set out how councils and Integrated Care Boards (ICB) must respond to the Tribunal’s recommendations. The council would be responsible for responding to social care recommendations and the ICB to health recommendations.
15. As per the guidance, for extended appeals, the Tribunal is also able to make non-binding recommendations concerning
• the health and social care needs to be specified in EHC plans
• the health and social care provision which is related to the learning difficulties or disabilities that result in the child or young person having SEN
• the social care provision that is made under Section 2 of the Chronically Sick and Disabled Persons Act 1970
16. Although any recommendations made by the Tribunal on health and social care elements of an EHC plan are non-binding and there is no requirement to follow them, they should not be ignored or rejected without careful consideration. Any reasons for not following them must be explained and set out in writing to the parent or young person.

Reviewing EHC Plans

17. 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.
18. 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)
19. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

Personal budgets and direct payments

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.

Discretion to investigate

24. As described in paragraph 13, the Ombudsman cannot investigate any complaint which is ‘inextricably linked to the matters under appeal’. I note that events in this complaint coincide with an appeal lodged by Mrs X to the Tribunal. This appeal was lodged in April 2021, and the Tribunal’s decision issued in October 2022. Mrs X appealed sections B, F and H of Y’s EHCP.
25. I therefore find complaint point d to be inextricably linked to matters Mrs X has appealed; this is because Mrs X appealed section H of Y’s EHC Plan. It is also noted that provision in Y’s EHCP was delivered via an agreed personal budget with the Council, and so I find complaint point c to be inextricably linked to matters which were appealed. As per paragraph 13, the restriction applies from the date the appeal right rose, which is when Y’s EHC Plan was issued in February 2021. Therefore, this limits the scope of my investigation into these two complaint points to begin in October 2022.

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What happened

26. I have included a summary of some of the key events in this complaint, this is not intended to be a comprehensive account of everything that took place. This does not mean I have not considered all the information available to me.

EHCP & Annual Reviews

27. In June 2020, Y’s EHCP was issued.
28. In February 2021, a Final Amended EHCP was issued.
29. In February 2022, a Final Amended EHCP was issued.
30. In September 2022, the Council wrote to Mrs X acknowledging delay in arranging an Annual Review. Later in September 2022, the Council confirmed the Annual Review to take place a week later. The following day, Mrs X confirmed the scheduled appoint was not possible, and requested a new date.
31. In November 2022, Y’s Final EHCP is issued following the Tribunal’s decision.
32. In November 2022, an Annual Review is held.
33. In January 2023, following the Annual Review, the Council sends a Notice of Amendment.
34. In February 2023, Y’s Final EHCP is issued.
35. In July 2023, an Annual Review is held.
36. In August 2023, following the Annual Review, the Council sends a Notice of Amendment. Later in August 2023, Miss X provided comments.
37. In September 2023, Y’s Final EHCP is issued.
38. In February 2024, the Council sends a Notice of Amendment.
39. In March 2024, Y’s Final EHCP is issued.

Personal Budgets

40. In February 2021, the Council wrote to Miss X regarding personal budget options and enclosing terms and conditions.
41. In April 2021, Miss X returned the signed terms and conditions for the personal budget.
42. In November 2021, Mrs X’s representatives contacted the Council regarding the personal budget being placed on hold. The Council responded shortly after confirming the personal budget is in place.
43. In February 2023, the Council contacts Mrs X to raise queries regarding receipts which have been submitted for payment. Mrs X responded shortly after. Later in February 2023, Mrs X provided further invoices and confirmation of what the personal budget had been used for. The Council advised Mrs X it was investigating the payments made.
44. In March 2023, Mrs X representatives contacted the Council regarding its decision to put the personal budget on hold. The Council responded shortly after. Further queries were raised in mid-March 2023, and the Council responded toward the end of March 2023. Later in March 2023, the Council contacted Mrs X outlining the outcome of its investigation and requested further information.
45. At the end of March 2023, the Council provided Mrs X with a breakdown of agreed personal budget and payments made. Mrs X contacted the Council with concerns. The Council requested further information and how the funding was being used.
46. In September 2023, the Council contacted Mrs X to confirm it would not make direct payments to her directly and outlined the options for personal budget payments.
47. In October 2023, the Council contacted Mrs X outlined the agreed personal budget. Mrs X followed up with queries, which the Council responded to shortly after.
48. Later in October 2023, Mrs X contacted the Council with further queries.
49. In January 2024, Mrs X contacted the Council to request an activity for Y be delivered via the personal budget.

Social Care Provision

50. In April 2021, the Council receives a SEND Tribunal appeal against sections B & F and H.
51. In October 2022, the SEND Tribunal’s final decision is issued.
52. In November 2022, Y’s Final EHCP is issued following the Tribunal’s decision.

Complaints

53. In September 2023, Mrs X made a Stage 1 complaint to the Council.
54. In October 2023, the Council issued its Stage 1 complaint response.
55. In November 2023, Mrs X made a Stage 2 complaint to the Council.
56. In December 2023, the Council issued its Stage 2 complaint response.

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Analysis

The Council failed to carry out annual reviews within statutory timescales.

57. Y’s EHCP was issued in June 2020. An annual review should have been held no later than June 2021. Y’s first annual review was not held until November 2022. This is fault by the Council.
58. Not holding an annual review would have meant a lack of updated support and Mrs X losing confidence in the process and feeling unsupported.
59. The Council acknowledges fault on this matter, and has proposed to make a remedy payment of £250 for the impact on Mrs X and Y. This remedy proposal is in line with our published Guidance on Remedies, and I consider it to be proportionate in the circumstances.

Delayed a right of appeal due to delays in carrying out an annual review.

60. Whilst I acknowledge the Council did not hold an annual review, I do not acknowledge that Y’s right of appeal was impacted. The Council issued a Final Amended EHCP in February 2021, which Mrs X appealed against.
61. I have not seen evidence that Y has been significantly impacted as a result. It is noted that the Council continued to secure provision detailed in Y’s EHCP via the personal budget which was in place at the time.

Failed to hold discussions regarding the use of a personal budget, and inappropriately suspended the personal budget

62. As per paragraph 25, I have not investigated any complaint into this matter prior to October 2022, this is due to an appeal lodged and heard by the Tribunal which concluded in October 2022, details which I have provided.
63. Mrs X complains the Council failed to hold discussions regarding the use of a personal budget. The evidence demonstrates that between February 2023 and December 2023, the Council engaged in ongoing discussions with Mrs X regarding the use of personal budgets. I observe there to be instances of delayed response by the Council, and Mrs X says this caused uncertainty to herself and Y. However, I do not consider this has met the threshold for fault.
64. Mrs X also complains the Council inappropriately suspended the personal budget. In February 2023, the Council wrote to Mrs X to query payments made which it did not considered to fall under the contracted agreement; the Council informed Mrs X that the personal budget was agreed to implement the education provision set out in Y’s EHCP.
65. The Council explained to Mrs X that it would stop making payments directly to her until a full breakdown of the package was provided, however that it would continue to fund the items in the personal budget, paying providers directly on receipt of an appropriate invoice.
66. Discussion followed thereafter between Mrs X, her representative and the Council, and the Council contends that Mrs X did not provide sufficient evidence that the personal budget had been used to secure provision set out in Y’s EHCP. The Council reiterated that it would continue to secure the provision for Y but that providers would need to invoice the Council directly to obtain payment. During further discussion with Mrs X, the Council recommended that the personal budget be managed by an independent party.
67. In June 2023, Mrs X contacted the Council with invoices for provision secured in May 2023, and the evidence demonstrates that these invoices were paid. Mrs X asserts that these invoices were not always paid immediately, thus impacting her and Y through uncertainty. Whilst I acknowledge this, I do not consider the Council’s actions to amount to fault, but rather they are symptomatic of a change in process following its decision to no longer pay Mrs X directly from the personal budget. The evidence does not demonstrate that Y was without provision, and so there has not been a significant injustice.
68. In October 2023, the Council contacted Mrs X to detail the exact personal budget that had been agreed. A discrepancy was queried by Mrs X’s representative and the Council responded with confirmation of its reasons.
69. The Council, as per guidance on the matter has the authority to stop making direct payments if it appears to it that the recipient is not using the payment to secure the agreed provision. I understand that Mrs X may contend that payments made using the personal budget did not fall outside the remit of the contract, but this is a view the Council was entitled to reach and query. It is also noted that provision for Y had not been impacted, at least due to any direct action by the Council, this is because it said it would pay providers directly on receipt of appropriate invoices, and the evidence demonstrates it did. On this point, I have not made a finding of fault.

Social care provision specified within Section H of Y’s EHCP has not been delivered.

70. As per paragraph 25, I have not investigated any complaint into this matter prior to October 2022, this is due to an appeal lodged and heard by the Tribunal which concluded in October 2022, details which I have provided.
71. In October 2022, the Tribunal issued its decision, recommending 8 hours of social care provision for Y. The Council contends that it did not agree with the Tribunals’ recommendation as it did not accord with its assessment of Y’s needs.
72. The Council does however acknowledge that there is no record of any action being taken by its service with respect of the Tribunal Decision Notice. The Council has five weeks of the decision to inform Mrs X of its decision if it did not agree with the recommendations which it did not do. This is fault by the Council.
73. The Council acknowledges that the failure to respond to the Tribunal Decision Notice will have created an expectation that it accepted the recommendation and would implement the provision. The Council accepts that this would have caused Mrs X distress on the basis of raised expectation.
74. It is understood that an up-to-date assessment of Y’s support needs has been agreed to take place with Mrs X’s consent. Where the Council contends that it does not agree with the Tribunal’s recommendation, and an assessment is scheduled to assess Y, it would not be possible to quantify the full extent of any injustice to Y in the absence of the assessment outcome. The Council has proposed that should the assessment identify any unmet needs which require a service, it would backdate a remedy to the date the Tribunal Decision Notice was issued to remedy any injustice caused to Y. In the circumstances, this is proportionate. Should Mrs X not be happy with the Council’s actions following the assessment, she can bring a new complaint to our service to be considered.

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Agreed action

75. To remedy fault and injustice identified in this complaint. The Council will:
1. Pay Mrs X an amount of £250 as proposed by the Council. This is to acknowledge fault and injustice identified in failing to carry out an annual review as it should have.
2. Pay Mrs X a further amount of £400. This is to acknowledge fault and injustice identified in failing to respond to the Tribunal Decision Notice when the Council took a view that it did not agree with the Tribunals’ recommendation.
3. Complete the assessment of Y and provide Mrs X with its decision. Should any needs be identified following the assessment, the Council should backdate its remedy to the date of the Tribunal Decision Notice.
4. Complete a review of the process around Tribunal outcomes, with a view to ensuring any decision reached by the Council is communicated by the deadline. The Council will provide the Ombudsman with the outcome of its review.
76. The Council will complete action point a and b within one month of the Ombudsman’s final decision and action points c and d within two of the Ombudsman’s final decision. The Council will provide the Ombudsman with evidence it has completed the above actions.

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Final decision

77. I have concluded my investigation having made a finding of fault. I found the Council failed to carry out an annual review when it should have, and failed to inform Mrs X it did not agree with the Tribunals’ recommendations. I did not find fault for the Council’s decision to stop making personal budget payments direct to Mrs X, and have not seen evidence that the Council’s decision impacted the delivery of provision to Y. The Council has agreed to our recommendations.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman