Summary: Mrs X complained the Council delayed completing an Education, Health and Care (EHC) needs assessment and failed to issue an EHC Plan for her child, Y, within statutory timescales. Mrs X also complained the Council delayed processing Y’s personal budget and did not pay the full amount. Mrs X said these faults caused avoidable distress and uncertainty. She said it also led to Y missing special educational provision. We have found the Council at fault for its delay in processing and paying Y‘s personal budget. The Council has agreed to provide a written apology and pay a symbolic financial remedy to recognise Y’s missed special educational provision. We will not investigate Ms X’s complaint about delays in the EHC needs assessment. We explain why in this statement.

The complaint

1. Mrs X complained the Council:
1. Delayed completing her child’s Education, Health and Care (EHC) needs assessment and failed to issue a final EHC plan within statutory timescales.
2. Delayed processing direct payments for her child’s personal budget and did not pay the full amount.
2. Mrs X said these faults led to avoidable frustration, distress, and a loss of educational opportunities.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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

8. The first part of Mrs X’s complaint concerns the Council’s delay in issuing Y’s final EHC Plan. The Council agreed to assess Y for an EHC Plan in May 2022. The Council should have issued a final EHC Plan on or around 12 October 2022. It did not issue an EHC Plan until 25 January 2023.
9. These events took place more than 12 months before Mrs X’s approach to the Ombudsman in July 2024. I have not identified a good reason Mrs X could not have complained about these matters sooner. The restriction set out in paragraph 5 therefore applies and I have not investigated this complaint.
10. Mrs X also told the Ombudsman the first EHC Plan the Council issued in January 2023 was insufficient, because it did not provide Y with a personal budget, or address other amendments Mrs X sought during Y’s needs assessment.
11. Mrs X had the right to appeal the content of the EHC Plan to the SEND Tribunal. The Ombudsman would not therefore consider a complaint about any omissions in the content of an EHC Plan. The restrictions set out in paragraphs 6 and 22-25 apply.
12. While I have not investigated these matters, I have included reference to them in this statement for context.
13. I have considered the Council’s actions from when it issued Y’s amended final EHC Plan in July 2023.

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How I considered this complaint

14. I discussed the complaint with Mrs X and considered information she provided.
15. I considered information the Council provided about the complaint.
16. Both Mrs X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.
17. 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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Relevant legislation, guidance and policy

Education, Health and Care (EHC) Plans

18. 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.
19. The EHC Plan is set out in sections which include: 
• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

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.

Maintaining the EHC Plan

21. 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)

Appeal rights and the Ombudsman’s jurisdiction

22. There is a right of appeal to the Tribunal against a council’s:
• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.
23. 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)
24. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
25. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

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What I found

Key events

26. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
27. In mid-2022, Mrs X sought an EHC needs assessment for her child, Y. Y was educated at home.
28. In May 2022, the Council confirmed to Mrs X it would carry out a needs assessment.
29. The Council sent Mrs X a draft EHC Plan in November 2022. Mrs X said the Council had not consulted her on the draft plan. She sought some amendments, as well as the provision of a personal budget for Y.
30. The Council issued a final EHC Plan on 23 January 2023. The EHC Plan did not specify a personal budget.
31. Mrs X said in February 2023, the Council told her it could make the amendments she had asked for, including the requested personal budget. Mrs X said this did not happen. She said the Council did not reply to further correspondence about this.
32. Mrs X said in April 2023, she asked the Council about making a complaint. Mrs X said the Council contacted her in May 2023 to follow up on her concerns.
33. On 19 July 2023, the Council issued an amended final EHC Plan for Y. This EHC Plan confirmed a personal budget allocated for:
• A laptop for Y.
• Alternative provision.
• Specialist assessments in literacy and numeracy.
• Specialist tuition in English and maths.
34. Around the same time, the Council said its brokerage service received the referral for Y’s personal budget.
35. Mrs X said she identified a suitable alternative provision setting, referred to in this statement as Placement A. I understand Y’s personal budget was calculated based on Y attending this setting. However, Mrs X said she could not reserve a place for Y at Placement A in time for the beginning of the academic year, as the Council did not process Y’s personal budget in time.
36. Mrs X said in November 2023, she sought the Council’s approval for a change in the setting, to Placement B. This was because Placement A no longer had any capacity. She said the Council approved this change. However, delays in providing the personal budget continued, leading Mrs X to pay the costs for Placement B herself.
37. On 16 February 2024, the Council provided Mrs X with a direct payment agreement. This confirmed how Y’s personal budget would be paid. The agreement specified payments for the specialist tuition and assessments. It did not specify any payments for Y’s alternative provision or laptop.
38. Mrs X said around the same time, she found another alternative provision setting, Placement C. The Council agreed to commission this provision and pay the costs to Placement C directly. Mrs X said Y was able to start at Placement C on 26 February 2024.
39. The Council said it paid Mrs X the direct payment for Y’s personal budget on 1 April 2024. Mrs X said she received this on 19 April 2024. The Council said this payment covered the cost of Y’s laptop, the specialist assessments, and specialist tuition. The Council said it also reimbursed Mrs X the cost of provision at Placement B.
40. On 19 April 2024, Mrs X complained to the Council about the delays in completing Y’s EHC needs assessment and administering the personal budget:
1. Mrs X said Y had been unable to start alternative provision until almost a year after the Council agreed it could provide a budget.
2. Mrs X had now received Y’s direct payment, but the cost of provision and equipment had increased during the period of delay.
3. Mrs X said the delays had caused frustration and anxiety, while also delaying Y’s educational provision.
41. On 8 May 2024, the Council held a meeting to review Y’s EHC Plan. The notes of the meeting show the Council decided to maintain Y’s EHC Plan without changes. It noted the increase in the cost of Y’s laptop.
42. On 16 May 2024, the Council responded to Mrs X’s complaint:
1. The Council said it agreed to a personal budget for Y in January 2023. However, it said it had delayed progressing this. It said it started the process in July 2023, but significant demand on the Council’s services caused further delays. It upheld this part of Mrs X’s complaint.
2. The Council accepted it had not finalised Y’s EHC Plan within statutory timescales. It said this was due to an unprecedented number of requests for needs assessment. It apologised for this and upheld this part of Mrs X’s complaint.
3. The Council said it was responsible for the delay in completing a personal budget. It said it was not responsible for Placement A not having capacity for Y.
43. Mrs X escalated her complaint:
1. Mrs X said Y missed out on a place at Placement A due to the Council’s delays.
2. Mrs X said the Council’s delays affected Y’s educational opportunities, as well as delaying access to approved assessments and tuition.
44. On 14 June 2024, the Council responded to Mrs X’s escalated complaint:
1. The Council explained what measures it had taken to improve its services.
2. The Council accepted it had acted with fault. It apologised for the delays and the distress caused. It upheld Mrs X’s complaint.
45. The Council said in November 2024, it paid Mrs X the additional costs of Y’s laptop.

Analysis

Did the Council act with fault?

46. From the point the Council issued the final amended EHC Plan, its duty to secure the provision in that plan, set out in paragraph 21, was engaged. This included providing the agreed personal budget, through direct payments, on which the special educational provision depended.
47. The Council did not provide the agreed personal budget until April 2024. The Council told Mrs X the time taken was due to issues with staff capacity and training, as well as an exceptional demand for the Council’s services. The Council also told the Ombudsman it initially only processed part of the agreed budget in error, resulting in a direct payment agreement in February 2024 that reflected less than the agreed amount.
48. I note the Council upheld Mrs X’s complaint and I agree with its conclusions. I have found the Council at fault for the approximate nine-month delay in providing the personal budget set out in Y’s EHC Plan.

Did the Council’s faults cause an injustice?

49. The Council’s delay in providing Y’s personal budget meant Y did not fully benefit from the special education provision in the plan until April 2024.
50. Y’s access to alternative provision throughout the period of delay was as follows:
1. Y had no access to alternative provision in September and October 2023.
2. In November 2023, Mrs X obtained the Council’s agreement to use the alternative provision budget at Placement B. However, due to the ongoing delay, Mrs X had to pay for Y’s space directly, incurring expenses.
3. In February 2024, Mrs X obtained a place for Y at another setting, Placement C. The Council agreed to commission this service and paid Placement C directly from February 2024 to mitigate the ongoing delays with the direct payments.
51. Y also could not benefit from the literacy and numeracy assessments, specialist tuition in English and maths, or the provision of a laptop, until April 2024. All of these were intended for the benefit of Y’s educational attainment.
52. I therefore find the Council’s faults caused Y an injustice. Between September 2023, the beginning of the academic year, and April 2024, the provision in Y’s plan should have been fully in place. However, Y’s access to special educational provision and resources was inconsistent and fluctuating. Y therefore experienced missed and inconsistent provision between September 2023 and April 2024. This in turn affected Y’s educational attainment and overall wellbeing. I have recommended the Council act to recognise this injustice to Y.
53. The Council’s faults also caused Mrs X an injustice. Mrs X experienced avoidable frustration and uncertainty due to the Council’s delays. Mrs X also incurred direct expenses for Placement B, which she would not have incurred but for the Council’s faults.
54. I recognise the Council reimbursed Mrs X for the cost of the provision at Placement B, which provides a suitable remedy for this injustice. However, Mrs X’s avoidable frustration and distress remains unaddressed. I have recommended the Council act to address this.
55. The faults that occurred in this case could cause injustice to others in the future, if left unaddressed. The Council told the Ombudsman it had taken several steps to address the issues it had identified in this case:
1. The Council reviewed and reorganised its direct payments service.
2. It recruited new staff, as well as developing and delivering new training.
3. It put in place new procedures, including weekly drop-in sessions for practitioners and direct payment officers accompanying social work colleagues on visits in complex cases.
4. It increased management oversight in this area, and was in the process of implementing new systems that allowed better monitoring and intervention where cases were not progressing.
56. These actions would constitute suitable service improvements to prevent the faults that occurred in this case occurring for others. Given the steps the Council has already taken, I have not made any further recommendations on this point.

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Action

57. I have carefully considered the Ombudsman’s Guidance on Remedies when making the following recommendations.
58. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mrs X and Y for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Pay a total of £2350 in recognition of the injustice caused. This is broken down as follows:
1. £1300 for Y’s missed special educational provision in the 2023/24 autumn term. This reflects that Y received no special educational provision for the first two months of this term.
2. £900 for Y’s missed special educational provision in the 2023/24 spring term. This reflects that Y received alternative provision, but did not benefit from the specialist assessments, tuition, or laptop.
3. £150 for the avoidable distress and uncertainty Mrs X experienced.
59. The Council should provide us with evidence it has complied with the above actions.

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Decision

60. I have completed my investigation with a finding of fault causing injustice. I have made recommendations 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