Summary: Mrs X complained the Council failed to reimburse costs associated with her daughter, Y’s, Education Other Than At School package. She complained the Council failed to provide any funding from September 2023 until December 2023. Mrs X also complained the Council did not follow the Education, Health and Care Plan (EHCP) annual review process. Mrs X said this distressed her and she has been left in financial difficulty. She said this impacted Y’s education. There was fault in the way the Council did not make the payments to Mrs X in a timely manner, did not pay her the full amount it should and delays in the annual review process. Mrs X was frustrated and distressed by the Council’s actions, and impacted financially. The Council has agreed to apologise, make a financial payment and remind staff of the Council’s responsibilities.

The complaint

1. Mrs X complained the Council failed to reimburse costs associated with her daughter, Y’s, Education Other Than At School (EOTAS) package. She complained the Council failed to provide any funding from September 2023 until December 2023. Mrs X also complained the Council did not follow the Education, Health and Care Plan (EHCP) annual review process. Mrs X said this distressed her and she has been left in financial difficulty. She said this impacted Y’s education.

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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 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)
3. If we are satisfied with a Council’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)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

5. I read Mrs X’s complaint and spoke to her about it on the phone.
6. I considered information provided by Mrs X and the Council.
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

Background information

8. A child or young person with special educational needs may have an Education, Health and Care Plan (EHCP). This document sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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. 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 EHCP. 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 EHCP themselves.
10. 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 EHCP. They may also request a Personal Budget during a statutory review of an existing EHCP.
11. 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)  
12. The council must arrange for the EHCP 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 EHCP 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.
13. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. 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) 
14. Where the council proposes to amend an EHCP, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
15. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
16. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the education provision named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.
17. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
19. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022

What happened

20. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
21. Y has complex special educational needs. She has an EOTAS education package.
22. The Council issued Y’s EHCP in December 2022. The plan specified a personal budget to meet Y’s outcomes named in her plan. The Council made regular payments to Mrs X
23. The Council held the annual review meeting in August 2023. The meeting minutes confirmed Y has an EOTAS package and recommended changes to the plan.
24. Mrs X contacted the Council about the personal budget in August 2023. She told them what she used the direct payment for and set out what money the Council had not paid.
25. Mrs X complained to the Council in September 2023. She said the Council had not paid her expenses or the termly payment. She also said the Council had not had any contact since the annual review meeting.
26. The Council offered to meet with Mrs X, rather than complete the formal complaint process. Mrs X agreed to meet with the Council but set out her concerns and said she did not receive responses to her contact.
27. Mrs X met with the Council in September 2023. The Council said it would process the expenses claim quickly and look into the termly payment issue.
28. Mrs X contacted the Council at the end of September 2023. She said she wanted the Council to consider her formal complaint as the Council had not paid and she had not received anything following the annual review meeting.
29. Mrs X continued to chase the Council for payments in October 2023.
30. The Council responded to Mrs X’s complaint in November 2023. The Council apologised for the delays with payments. The Council said it was not aware Mrs X put in other costs. The Council apologised it did not update Mrs X after the annual review meeting. The Council confirmed the EHCP mentioned a personal budget, but it did not agree this.
31. Mrs X responded to the Council’s complaint response a week later. She said the Council had made payments at the start of each term, but not in September 2023. Mrs X reminded the Council she was not electively home educating Y. She stated Y had an EOTAS package because there was no school able to meet her needs.
32. Mrs X requested the Council escalate her complaint to stage two in December 2023.
33. The Council sent Mrs X Y’s draft EHCP at the start of January 2024.
34. The Council responded to Mrs X’s stage two request in January 2024. The Council apologised for not reimbursing Mrs X with the expenses and not paying the termly personal budget. The Council accepted it did not follow the annual review process and confirmed its EOTAS system needed improvement. The Council said it had paid Mrs X the total resource budget so would not make any further payments for resources. The Council recognised Mrs X’s time and trouble in having her concerns addressed and offered her £200.
35. Mrs X challenged the Council’s response and said the amount it stated as a yearly budget, was a termly budget. The Council accepted its error and arranged to pay Mrs X the remaining outstanding money.
36. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to improve its EOTAS and personal budget systems.
37. In response to my enquiries the Council stated its EOTAS system needs improvement. The Council accepted delays in its EHCP annual review process.
38. The Council confirmed it had paid Miss X some of the money from the first term of 2023/2024 but accepted £950 was outstanding. The Council offered to pay this amount, and £200 for her distress due to the late payments.

My findings

Personal budget

39. The Council said, in its complaint response, it did not agree the personal budget amount. The Council issued the EHCP in December 2022, and the amount was included in the plan. I have seen evidence the Council made payments for the academic year 2022/2023. It is reasonable to say the Council agreed the amount in the plan.
40. When the Council issued Y’s EHCP in December 2022, it had a duty to secure the special educational provision in the plan (Section 42 Children and Families Act).
41. The Council has not evidenced it made the payment, set out in the plan for the first term for the academic year 2023/2024. The Council evidenced some smaller payments, but not the full amount. The personal budget, set out in Y’s EHCP, was to secure the special educational provision in her plan. When the Council did not make the payments, it was not securing the provision in the plan. This is fault and Y missed the provision.
42. The Council has accepted it did not pay Mrs X £950 of the budget it should have and offered to pay this to Mrs X. This is a suitable offer.
43. The Council evidenced a payment in February 2024 and said it made a payment in June 2024. These two payments were for the second and third academic terms. Both payments were late. This is fault and frustrated Mrs X. The later payment is outside the scope of this investigation, but the Council has offered a payment of £200 to recognise the frustration this delay caused Mrs X. This is a suitable offer.

Annual review process

44. The evidence shows, and the Council accepted, delays in the annual review process. The Council held the annual review meeting in August 2023. The regulations set out in paragraph 13 and 14, require the Council to inform Mrs X of the outcome of the review meeting and detail any changes it proposed to make within four weeks. The Council has not done this. This is fault.
45. The regulations mentioned in paragraph 15, requires the Council to issue the EHCP within eight weeks of the proposed amendments, 12 weeks after the review meeting. The Council issued a draft plan in January 2024 and had not issued a final plan when this investigation started in February 2024.
46. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. 
47. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
48. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
49. The Council did not issue the final EHCP within the 12 weeks allowed in the regulations. The Council did not issue the plan for 29 weeks until this investigation started. I have seen no evidence the Council issued a final plan but can only consider matters until this investigation started in February 2024. Not issuing the final EHCP within the timescales set out in the regulations is fault. This frustrated Mrs X. The delay issuing the final EHCP also delayed Mrs X ability to exercise her right of appeal to the SEND Tribunal.

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Agreed action

50. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for not making the payments to fund Y’s EHCP provision and not making other payments in a timely manner. It should also apologise for the distress and frustration this fault caused. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mrs X the £200 it offered as an acknowledgement of the time and trouble she has spent pursuing this complaint.
• Pay Mrs X the £200 it offered as an acknowledgement of the distress it caused by not making timely payments.
• Pay Mrs X the £950 it offered for not making the EHCP provision payment for the first term of 2023/2024.
• Pay Mrs X £300 to acknowledge the frustration caused by the Council’s faults identified in this case.
• Remind relevant staff of the importance of adhering to the statutory guidance on EHCP annual reviews.
• Remind relevant staff of the Council’s duties and responsibilities to children receiving EOTAS.
• Evidence the Council has implemented the proposed policy to ensure a consistent approach for the new academic year.
51. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

52. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman