Summary: Mrs B complained that the Council failed to deliver provisions in her child’s Education, Health and Care Plan. We found fault in the actions of the Council which caused Mrs B distress and her child to miss out on educational provision. The Council has agreed to pay Mrs B £300 for her own injustice and £1300 for the benefit of C’s education.

The complaint

1. Mrs B complained that Lancashire County Council (the Council) failed to deliver provisions in her child’s Education, Health and Care (EHC) Plan. She says her child has missed out on education and therapeutic provisions as a result. She wants the Council to agree to put in place their preferred providers and reimburse them costs for provision they have put in place.

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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 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)
3. 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)

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What I have and have not investigated

4. I have investigated the period from the Annual Review in February 2024 to July 2024 when Mrs B complained to us.

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How I considered this complaint

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

Special educational needs

7. 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. 

Personal Budgets

8. 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.
9. 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.
10. 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.
11. 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

12. 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)  

Reviewing EHC Plans

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 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) 
14. 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.
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.

What happened

16. Mrs B’s child, C, has an EHC Plan dated June 2023 which detailed an Education Other than At School (EOTAS) package in section F building up to 20 hours per week based around activities C was interested in and engaging in. From September 2024 this consisted of sessions at three different placements, including equine therapy and tutor sessions
17. Mrs B said she requested a personal budget around this time and chased the Council twice in September 2023. She then instructed a solicitor and issued a letter before action.
18. In November 2023 the Council met with Mrs B who said she considered the provision would be best met through a personal budget allocation rather than directly commissioned provision.
19. In December 2023 the Council agreed to pay for a laptop and for money towards additional activities as a personal budget. Mrs B said she received no written notification of this decision.
20. In January 2024 C was struggling to attend the equine therapy and tutor sessions. At the Annual Review in February 2024 Mrs B and the two providers raised concerns about C’s lack of attendance at these sessions and her increasing anxiety. The review discussed possible strategies for overcoming the anxiety and increasing C’s engagement. The report asked the Council to consider increasing the termly reviews to half-termly, extra training and liaison time for the tutor with the speech and language therapist and the occupational therapist, access to the successful placement during the school holidays and a personal budget for educational visits to make up for the recent lack of engagement.
21. At the end of February the caseworker who had worked on C’s case in the autumn said that the Council had agreed in October 2023 to a personal budget of £1040 for twice weekly activities such as swimming , trampolining and horse-riding. They said individual payments had been made to providers but the sensory budget had not yet been allocated. I have not seen any written notifications sent to Mrs B.
22. Due to staff absence the Council did not deal with C’s annual review paperwork.
23. On 19 April 2024 Mrs B made a formal complaint to the Council about the delays in making the provision detailed in the EHC Plan and the failure to provide an adequate personal budget.
24. At the end of April 2024 Mrs B requested a change in provider for the equine therapy and wanted to discuss the tuition, as C was not attending either placement and had not done so since Christmas 2023.
25. On 2 May 2024 the Council allocated the case to a new manager. They said there was nothing on C’s file since November 2023 when the personal budget submission was made to the EOTAS panel. The case manager supported the request for a change of provider for the equine therapy and the tuition, subject to a multi-disciplinary team (MDT) meeting on 22 May 2024 where providers would supply details of attendance and progress. They also committed to fortnightly MDT meetings and a half-termly MDT meeting with all professionals.
26. The EOTAS panel refused the request on 14 May 2024. It said that efforts should be made to support C to attend the sessions and if not successful a full review should be carried out. The MDT meeting agreed that a change of provider was appropriate.
27. The Panel met again on 23 May 2024 to discuss the change in provider. It refused the change to a new equine therapy provider Mrs B had found. It said the current provider needed to work through the issues with C and if not resolved then it would approve a new provider in September 2024. It also said the tuition provider should try to reengage with C initially online and then face-to face in the second half of the term. The Panel did not agree to a personal budget as it said this would be double-funding of the section F provision and it would not fund the third placement through the holidays but could consider funding through social care if there was a need. The case manager relayed these decisions to Mrs B by email on 28 May 2024.
28. Mrs B complained again to the Council on 28 May 2024. She said the difficulties with C’s provision remained unresolved and the suggested interventions were too late. She said the refusal of a change of equine therapy provider did not make sense as the new provider was nearer and a similar cost and C would not attend the previous placement. The only education C was accessing was two hours a week of online mentoring. She also complained about the personal budget saying she had not received a full response to her request and the budget agreed in June 2023 was inadequate.
29. The Council responded on 24 June 2024. It apologised for the delay in responding. It said the new equine therapy provider had been agreed from September 2024 but as it was not an approved provider it could not be agreed earlier. It said C had a tutor in place so requests for additional literacy support were declined, but it acknowledged that C was not currently accessing the tutor. It did not consider a personal budget was necessary as the Council was putting in place section F provision.
30. Mrs B complained to us in July 2024. She was paying herself for the new equine therapy sessions. The Council said it was looking for a new tutor. It ended its contract with the previous provider on 9 July 2024,accepting that C was not accessing it.
31. In response to my enquiries the Council accepted it had not responded to the annual review request until May 2024, and it had not issued a formal notification of its intention to maintain C’s EHC Plan. It said this had now been sent and a review was scheduled for February 2025.
32. It outlined a programme of recovery in the department including increased staffing to improve communication and capacity. It was also working to establish a training programme to provide induction and continual professional development for all staff.

Analysis

Section F provision

33. The Council was aware in February 2024 that C was not attending two of the three provisions in her EOTAS package (set out in section F of her EHC Plan) and that the annual review had requested the Council consider taking actions to rectify this lack of engagement. The Council did not take any action on this request until May 2024 and failed to complete the annual review process. This was fault which meant C was not receiving the provision she should have done for approximately one term.
34. Once the Council considered the requests it took two months to agree that changes were necessary, and new providers were approved for the start of the autumn term of 2024. If the Council had acted more quickly and issued notification of its intentions within four weeks of the meeting, it is likely that new provisions could have been secured for the summer term.

Personal budget

35. The Council said that there was a personal budget in place for educational visits and expenses following the June 2023 EHC Plan and it had not been increased. I have not seen evidence that this was confirmed in writing to Mrs B or written into the EHC Plan. This was fault.
36. There is no evidence the Council decided the personal budget request made in the autumn of 2023 and confusing information was relayed by the previous case manager in February 2024. This was fault which caused Mrs B uncertainty and frustration.
37. The Council considered Mrs B’s request for an increase in the Personal Budget at the EOTAS Panel meetings in May but refused it. The Case Manager notified Mrs B of this decision by email. I have not found fault with this approach, but I consider the Council should have sent a formal notification of the decision with a right of review.

Complaint handling

38. Mrs B complained to the Council on 19 April 2024. I have not seen any evidence of a response to this complaint until Mrs B complained again on 28 May 2024 and the Council responded on 24 June 2024. The Council’s corporate complaints policy says the Council will respond to stage one complaints within 20 working days. The Council did not respond for over two months and only after Mrs B had complained again. This was fault which caused Mrs B frustration and time and trouble in chasing up the matter.

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Action

39. In recognition of the injustice caused to Mrs B and C I recommended that the Council, within one month of the date of my final decision:
• apologises to Mrs B;
• pays her £300 for her own injustice and £1300 for the benefit of C’s education; and,
• ensures a formal decision is sent, with a right of review, when a decision on a personal budget is made and that any personal budget in payment to Mrs B is written into the EHC Plan.
40. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.
41. I have not made any recommendations in terms of improving the personal budget process as we made a number of recommendations in a different complaint in July 2024 including staff training, which the Council has implemented.

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Decision

42. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman