Summary: Miss B complained about the Council’s handling of her daughter’s Education, Health and Care Plan. We have found the Council at fault for a delay in completing the annual review held in May 2023 and its failure to consider a request for a personal budget in this time. These faults have caused Miss B distress and uncertainty. The Council has agreed to apologise and make symbolic payments to Miss B and issue a reminder to its staff to ensure they are aware of the Council duty to respond to personal budget requests.

The complaint

1. Miss B complained the Council:
• Delayed in complying with a tribunal order in 2022.
• Failed to put suitable educational provision in place and failed to provide the provision detailed in section F of her daughter’s (X) Education, Health and Care Plan (EHCP).
• Delayed in completing annual reviews.
• Failed to consider three personal budget requests.
• Failed to respond to her complaints and correspondence.
2. Miss B told us the Council’s actions have impacted her own, and her daughter’s, health and wellbeing. Miss B also told us her daughter has been out of education. Miss B would like the Council to implement the Tribunal order, provide her daughter with access to education, apologise for the faults, provide a personal budget and pay compensation for the distress and anxiety she has experienced.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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)
6. 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)
7. 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

8. I have not investigated the part of Miss B’s complaint which relates to the 2022 Tribunal order as this complaint is late and I have seen no good reason Miss B could not have complained to us sooner.
9. I have not investigated the part of Miss B’s complaint which relates to the Council providing access to suitable educational provision and section F provision as this is closely linked to whether the school named in section I of the Education, Health and Care Plan was suitable. Miss B has appealed this decision to the SEND Tribunal.
10. My investigation will focus on the delay in completing the annual review process in May 2023, Miss B’s personal budget requests and whether the Council failed to respond to Miss B’s complaints and correspondence.

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How I considered this complaint

11. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
12. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

EHC Plans and annual reviews

13. 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. 
14. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. Where the council proposes to amend an EHC Plan, 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
16. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

Personal Budgets

17. 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.
18. 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.
19. 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.
20. 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.

What happened

21. At the beginning of May 2023, the Council held an annual review meeting to review X’s EHC Plan. In accordance with statutory timeframes the Council should have issued a final amended plan and completed the annual review process by the end of July 2023.
22. The Council did not issue a final amended EHC Plan until the end of January 2024. This is approximately a 6 month delay. Miss B submitted an appeal against sections B, F and I of this Plan.
23. In June and September 2023, while X’s EHC Plan was still under review, Miss B emailed the Council to request a personal budget to secure special educational provision for X. I have not seen any evidence the Council considered or provided a response to these requests.
24. Miss B requested a personal budget again in March 2024, after the final Plan had been issued and before another annual review was held. The Council responded to this request and explained to Miss B that, as it had received the request outside of the review process, it could not be further considered. The Council advised Miss B to raise this request again at the next annual review.

Complaint handling

25. Miss B submitted a complaint to the Council in January 2024. This complaint raised Miss B’s concerns the Council had delayed in issuing the final EHC Plan following the May 2023 annual review.
26. In June 2024 a Council officer met with Miss B to discuss and progress her complaint however no formal complaint response was issued.
27. 10 days later Miss B’s legal team issued a pre action judicial review letter to the Council. The Council responded to this letter in August 2024.
28. In response to our enquiries the Council explained that when it issued the letter in response to the pre action judicial review letter it believed it had addressed the issues raised in Miss B’s January 2024 complaint. The Council told us it has since reviewed this decision and accepts the complaints raised by Miss B in January were not the same as the issues raised in the pre action judicial review letter. The Council told us it intended to apologise and provide a complaint response to Miss B.

My findings

29. There was a 6 month delay in the Council completing the annual review process. This is fault which caused X and Miss B frustration, uncertainty and distress.
30. The Council failed to respond to Miss B’s June and September 2023 requests for a personal budget. Due to the delay in issuing X’s EHC Plan, it was under review at the time of these requests. The Council’s failure to consider Miss B’s requests and provide a response is fault which caused Miss B frustration, distress and uncertainty.
31. There is no fault in the Council’s response to Miss B’s March 2024 request for a personal budget. This request was submitted outside of the EHC Plan review period and the Council had no legal requirement to consider the request at this time. The Council provided a formal response to this request which explained why it would not consider the response.
32. There was a 6 month delay in the Council acknowledging Miss B’s complaint. The Council also failed to provide a full complaint response or explain to Miss B why it had not considered her complaint. This is fault which caused Miss B uncertainty, frustration and distress.

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Action

33. Within one month of the final decision the Council will:
• Apologise to Miss B for the distress, frustration and uncertainty caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
• Make a symbolic payment of £600 to Miss B in recognition of the injustice caused by the delay in issuing X’s final EHC Plan.
• Make a further symbolic payment of £300 in recognition of the injustice caused by the failure to respond to Miss B’s personal budget requests and complaint.
34. Within three months of the final decision the Council will issue a reminder to its SEND staff to ensure they are aware of the Council’s duty to respond to personal budget requests received during the annual review period.
35. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The Council has agreed to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman