Summary: Mrs X complained the Council failed to secure all the special educational provision in her child, Z’s, Education, Health and Care Plan. The Council was at fault for not securing some of Z’s provision, for delay in reviewing Z’s Plan, poor communication and inadequate complaints handling. This meant Z missed out on education they should have had, and Mrs X experienced frustration and upset and had to go to undue time and trouble. To remedy their injustice, the Council will apologise to Mrs X and pay her a total of £3,800.

The complaint

1. Mrs X complained the Council failed to secure all the special educational provision in her child, Z’s, Education, Health and Care Plan. Mrs X also complained about how the Council reviewed Z’s Plan in 2023, about poor communication and complaints handling.
2. Mrs X said this caused her frustration and had detrimental impact on Z’s wellbeing and development.

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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 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. 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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How I considered this complaint

6. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
7. Mrs 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

Relevant law and guidance

Education, Health and Care 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.
9. The EHC Plan is set out in sections which include section F; the special educational provision needed by the child or the young person. 

Special educational provision

10. 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)  

Personal Budgets and direct payments

11. 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.
12. The Special Educational Needs (Personal Budgets) Regulations 2014 state councils must make information available to parents and young people about:
• what they can have a personal budget for;
• what conditions they must meet before they can have direct payments; and
• organisations that can help with personal budgets.

EHC Plan reviews

13. 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 twelve months of the first EHC Plan and within twelve 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 to maintain, amend or review the child or young person’s EHC Plan. The council must issue the decision to the parent or young person within four weeks of the review meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
14. If a council decides to amend a child or young person’s EHC Plan, it must first issue a draft to the child’s parents or the young person and invite their comments. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan by 31 March in the calendar year of the transfer.  

Appeals to the SEND Tribunal

15. 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.
16. There is a right of appeal to the Tribunal against:
• the description of a child or young person’s SEN in their final EHC Plan;
• the special educational provision in section F of the Plan;
• the school or placement named in the Plan or that no school or other placement is specified; and
• any amendment to these elements of an EHC Plan.
17. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

Complaints

18. The Council operates a two stage complaints procedure. Stage one is the local resolution and is responded to by the service complained about. The service should send the complaint response within 20 working days. The stage two response comes from the Corporate Director of the service involved and should also be sent within 20 working days.

What happened

19. Mrs X’s child, Z, is a young person who has complex needs which cause challenges with communication, social experiences, cognition and learning, executive functioning, sensory processing and maintaining healthy posture. Z has an EHC Plan.
20. In late July 2022, Mrs X asked the Council to agree a personal budget for Z’s EHC Plan provision. The Council sent Mrs X a copy of its personal budget policy.
21. The Council issued Z’s amended final EHC Plan in early August 2022. It included the following special educational provision as part of an Education Otherwise Than At School (EOTAS) package. This is education delivered outside of a school setting, usually made up several types of provision.

• weekly speech and Language Therapy (SALT);
• weekly Occupational Therapy (OT);
• seventeen hours per week to catch up on Z’s missed education;
• five hours per week of individual and small group interventions to develop Z’s Social, Emotional, and Mental Health (SEMH) skills;
• small group social opportunities to develop Z’s social skills; and
• independent travel training for one hour per week.

22. Mrs X began paying privately for the SALT and OT provision in Z’s EHC Plan in early September 2022, after the Council told her it would reimburse the costs.
23. A few weeks later, the Council told Mrs X it had agreed a personal budget for seventeen hours per week of tuition, the SALT, OT and the small group social opportunities. It did not explain what funds it had assigned for each provision. The Council said its travel training team would deliver Z’s travel training.
24. Mrs X asked the Council to confirm what sums had actually been agreed as part of the personal budget and for confirmation it would reimburse her for the private SALT and OT.
25. The Council did not respond so Mrs X chased it several times in late September and early October 2022. She asked whether the SEMH provision was part of the personal budget. The Council replied in mid-October to explain the SEMH provision was being delivered as part of the tuition and social opportunities so it would not make a separate payment for it. The Council later reimbursed Mrs X for the cost of the private SALT and OT.
26. In late October, the Council gave Mrs X direct payments for her to commission Z’s SALT, OT and the small group social opportunities. Two weeks later, the Council gave Mrs X direct payments for seventeen hours of tuition.
27. In early November 2022, the Council’s travel training team said it could not help Z. Mrs X asked if the Council would give her a personal budget for the travel training instead. The Council did not respond so Mrs X chased it for an update every few weeks until February 2023.
28. The Council held Z’s 2023 annual review meeting in May 2023, in preparation for Z to move to post-16 education in the 2023/2024 school year. It decided to amend Z’s EHC Plan and issued a draft amended version in late May 2023.
29. Mrs X complained to the Council in early June 2023. She said:
• the Council had given her very little information about personal budgets;
• the Council had delayed arranging direct payments for Z to receive their tuition, SALT, OT and small group social opportunities.
• she was unhappy the Council had not given her direct payments for the five hours of SEMH provision in Z’s Plan and that it had not responded to her request for direct payments to deliver the travel training.
• the Council had delayed carrying out Z’s 2023 annual review;
• the Council’s communication with her had been very poor.
30. In early July 2023, the Council issued Z’s amended EHC Plan. The SEMH provision and travel training remained the same as in the August 2022 Plan. Mrs X appealed the special educational provision in the Plan.
31. The Council responded to Mrs X’s complaint at stage one in late September 2023. The response came from a manager in the SEN department, the same individual Mrs X had been speaking to about Z’s case since July 2022. It said:
• it was sorry for the delay responding to her;
• it “noted” Mrs X’s concerns about its communication with her, lack of clarity about Z’s 2023 phase transfer annual review, and delays in arranging Z’s personal budget; and
• Z’s personal budget was “in hand”.
32. Mrs X asked for a stage two response a few days later. She repeated the concerns she had listed at stage one and added that:
• the Council had finalised Z’s EHC Plan too late in a phase transfer year; and
• the person who had responded to her stage one complaint was the person responsible for the matters she had complained about.
33. The Council did not respond to Mrs X’s stage two complaint, so she complained to the Ombudsman in late January 2024.
34. Mrs X made a new complaint to the Council the following day. She said it had still not arranged the five hours of SEMH provision, so she was using the tuition funding for that purpose. She also said the Council was not working with Z’s tuition provider to arrange Z’s exams.
35. In February 2024, the SEND Tribunal upheld most of Mrs X’s appeal.
36. The Council responded to Mrs X’s January 2024 complaint in mid-March to say it would not investigate because she had a right of appeal about the issues she raised.

Previous Ombudsman investigations

37. Since 1 January 2024, the Ombudsman has upheld and made recommendations of Kent County Council on multiple complaints with the same subject matter as this one. Those recommendations included for the Council to:
• produce an action plan to demonstrate how it will meet the statutory timescales for annual reviews;
• review its staff guidance and processes to ensure it monitors and reviews the level of education provided to children on EOTAS and to ensure all provision and therapies are in place; and
• identify areas for improvement, particularly around communication, complaints handling and delays in the EHC Plan process.
38. The Council also received an improvement notice from Ofsted and the Care Quality Commission (CQC) in March 2023, and has agreed a detailed plan to improve its services. It is still acting on that plan.

Findings

Special educational provision and personal budgets

39. The Council owed Z the duty to secure the special educational provision in their August 2022 and July 2023 EHC Plans. The provision in the August 2022 plan should have been in place for the start of the new school year in September 2022.
40. Mrs X asked for a personal budget so she could request direct payments to commission Z’s special educational provision directly. She feels the information the Council gave her about personal budgets was inadequate. The Council’s website contains information about personal budgets, including its policy. This information was available from at least early 2022. The Council also sent Mrs X a copy of its policy directly in late July, after she asked for a personal budget. This was in line with the Regulations so was not fault.
41. However, the Council then delayed giving Mrs X direct payments so she could commission Z’s special educational provision. This was fault. Mrs X was able to pay privately for the SALT and OT in September and October which meant Z did not miss out on that provision. The Council has since reimbursed Mrs X for the cost of the SALT and OT. The Council did not give Mrs X direct payments for the small group social opportunities until late October 2022 and did not give direct payments for the tuition until mid-November 2022. This meant Z missed out on around two months of that provision.
42. The SEMH provision and travel training is in both the August 2022 and July 2023 EHC Plans. Despite this, the Council did not agree direct payments for them and did not arrange the provision itself. This was fault. The Council considers Z did not need separate funding for the SEMH provision because it was delivered during the tuition hours and the small group social opportunities. However, the wording in Z’s Plans indicates the SEMH hours should be delivered in addition to the other provision. Mrs X used the funds for Z’s tuition to commission the SEMH provision, but this meant Z had less tuition that they should have. Ultimately, Z did not receive the full provision in their EHC Plan at any point between August 2022 and the end of the period I am investigating; February 2024. This also caused Mrs X avoidable frustration and upset.

Phase transfer annual review

43. The Council must complete annual reviews and make any Plan amendments by 31 March in the year a young person will move to post-16 education. The Council therefore had to issue Z’s amended EHC Plan by 31 March in 2023. It issued the Plan in July 2023, around three months late. The delay was fault. It caused Mrs X frustration and delayed her appeal rights but did not cause Z a significant personal injustice because the purpose of the timescale is to ensure new post-16 placements are arranged in time for September 2023. That does not apply to Z, who continued on EOTAS.

Communication

44. The records indicate the Council’s communication with Mrs X was poor. It took several chases for Mrs X to get a response from the Council between September and October 2022. The Council also did not respond to Mrs X’s repeated contact about funds for Z’s travel training. This was fault and caused Mrs X undue frustration.

Complaints handling

45. The Council’s stage one response was three months late and it did not issue a stage two response despite Mrs X waiting sixteen weeks before complaining to the Ombudsman. We are aware the Council has a significant backlog of complaints about its SEN service and that it is taking decisive action to resolve the backlog. The Ombudsman has seen the Council’s action plan and is satisfied it is taking appropriate steps, so I have not made a further recommendation.
46. Under the Council’s complaints procedure, stage one responses are dealt with by the service responsible for the matters complained about. In this case the response came from the manager who had been dealing with Z’s case since July 2022. This was in line with the Council’s procedure so was not fault. However, the complaint response was inadequate. It only acknowledged several of Mrs X’s concerns, without coming to a finding on them, and did not respond to rest of Mrs X’s concerns.
47. The Council was also at fault for refusing to consider Mrs X’s January 2024 complaint about the missing SEMH provision and the Council’s involvement in Z’s GSCE arrangements. It said it would not investigate because Mrs X had a right of appeal to the SEND Tribunal. However, the Tribunal had made its decision two weeks earlier. Mrs X no longer had any right of appeal. Even if the appeal was still ongoing, the Tribunal does not deal with exam arrangements or missing special educational provision.
48. The Ombudsman was already considering a complaint from Mrs X about the missing SEMH provision so the Council could have reasonably argued it would not consider a new complaint about the same issue. However, Mrs X’s concerns about the GSCE arrangements were a new issue, which the Council should have investigated. I have made a recommendation to ensure the Council carries out a complaint investigation, if it has not already done so while this investigation has been ongoing.
49. The faults set out in this section caused Mrs X avoidable frustration and meant she went to undue time and trouble.

Previous Ombudsman investigations

50. Although I have found fault with the Council, I have not made recommendations to improve its services and practice because, as noted in paragraph 37, we have already done so recently. The Council is currently acting on those recommendations, and on the Ofsted and CQC improvement plan, so I am satisfied further recommendations are not needed at this time.

What I have not investigated

51. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

52. Mrs X is unhappy Z’s August 2022 EHC Plan did not state explicitly that the seventeen hours of support would be in the form of tuition. However, the Council agreed direct payments for seventeen hours of tuition so any fault did not cause Z a significant injustice. Since then, the Council has issued a new amended EHC Plan so the August 2022 Plan is no longer in force.
53. I will not investigate Mrs X’s concern that the Council’s website does not have an alternative provision policy. There is no requirement for the Council to have a published policy. There is legislation and statutory guidance on alternative provision which sets out when the Council should arrange it. There is insufficient evidence of fault to justify investigation.
54. Mrs X complained about how the Council administered the May 2023 annual review meeting. This included how the Council sought Z’s views before the meeting, how it sent information to Mrs X after the meeting, that the officers who attended the meeting were not familiar with Z’s case and that they did not give enough time at the meeting to come to decisions about Z’s education. I cannot investigate these issues because they are too closely linked to Mrs X’s appeal on the special educational provision in the July 2023 Plan. As noted in paragraph seventeen, we cannot investigate matters which are connected to those considered at appeal. The consequence of any fault in annual review process would be that the July 2023 Plan was inadequate. Mrs X appealed to challenge the adequacy of the Plan.
55. Similarly, Mrs X is unhappy the Council decided to amend Z’s EHC Plan after the May 2023 annual review meeting. I cannot investigate this matter because the decision to amend Z’s EHC Plan is too closely linked to Mrs X’s appeal of the provision in the amended Plan.
56. I will not investigate Mrs X’s complaint about the content of the draft amended EHC Plan the Council issued in late May 2023. The Council was entitled to amend Z’s EHC Plan as part of the annual review and Mrs X had, and exercised, her right to challenge the Council’s changes through an appeal to the SEND Tribunal once it issued the final Plan in July 2023.
57. Mrs X said a member of staff at the May 2023 annual review meeting said Z was lucky to have more than ten hours of tuition per week because ten hours is the maximum. Mrs X noted a 2022 Tribunal decision against the Council criticised it for placing an arbitrary ten-hour limit on a child’s weekly tuition. I have not investigated this matter because Z has more than ten hours, so any fault did not cause them a significant personal injustice. The Ombudsman has begun a separate investigation into whether the Council imposes a ten-hour tuition limit and whether that approach is causing any children or young people in its area an injustice.

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Agreed action

58. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the upset and frustration she felt and the time and trouble she went to because of the failings set out in this decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology.
2. Pay Mrs X £200 in recognition of her injustice.
3. Pay Mrs X £3600 in recognition of the impact of the lost provision on Z.
59. The Council will provide us with evidence it has complied with the above actions.

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Final decision

60. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman