Summary: Ms X complained the Council failed to issue an Education Health and Care Plan, including the Personal Budget, for her son, Y, within the timescale set by a tribunal. She said this caused Y to miss educational provision and caused significant distress. We find the Council at fault for the delay which caused missed education and distress. The Council has agreed to remedy this by apologising and making a symbolic payment.

The complaint

1. Ms X complains about the Council’s handling of her son Y’s Education Health and Care (EHC) Plan following a tribunal hearing in February 2024. She complains the Council:

• Did not issue the amended Final EHC Plan including a Personal Budget in the required time.
• Issued draft documents that contained errors which increased the delay.

2. Ms X says Council’s actions caused distress and frustration and meant Y missed educational provision he was entitled to.

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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 considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

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. 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. 
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. 
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

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).
11. Where the Tribunal orders a council to amend the special educational provision set out in an EHC Plan it must do so within five weeks of the order being made (Regulation 44(e) Special Educational Needs and Disability Regulations 2014).
12. 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.
13. 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.
14. 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.
15. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.

What happened

16. Ms X was unhappy with the contents of Y’s EHC Plan in 2023 so she appealed to the First-tier Tribunal (Special Educational Needs and Disability) (the Tribunal).
17. The Tribunal hearing happened in February 2024. It ordered the Council to issue an EHC Plan with new educational provision for Y by 4 April 2024.
18. By the middle of April the Council had not issued the new EHC Plan so Ms X formally complained. Her complaint focused on its failure to deliver the educational provision agreed by the Tribunal. She told the Council it was causing unnecessary disadvantage to Y’s education.
19. At the beginning of May the Council sent Ms X a draft EHC Plan. It also said the Personal Budget would have to be considered and approved by a decision making group (DMG).
20. Ms X raised concerns about the need for the Personal Budget to be approved by the DMG because it had been ordered by the Tribunal. The Council said it had to be approved as part of the process.
21. By the middle of May Ms X had read through the draft EHC Plan. She told the Council she had found a number of mistakes in it and listed them. She raised concerns about the mistakes because the Tribunal had provided exact wording to be included in the EHC Plan. Ms X said the mistakes meant the DMG might be approving an inaccurate Personal Budget. She said Y had already missed five weeks of educational provision.
22. The Council responded to Ms X’s formal complaint at the end of May. It agreed it had not finalised Y’s EHC Plan nor arranged his Personal Budget.
23. On 30 May Ms X escalated her complaint to stage two of the Council’s complaint process. She listed the educational provision Y was still not receiving.
24. On 31 May the Council sent Ms X the draft EHC Plan and Personal Budget agreement letter.
25. Ms X found more mistakes. There were items missing on the Personal Budget. The Council apologised and amended the Personal Budget to include everything the Tribunal had ordered.
26. On 5 June the Council told Ms X she could go ahead and use the Personal Budget to start organising Y’s educational provision. On 7 June the Council issued Y’s amended final EHC Plan.
27. On 25 July the Council responded to Ms X’s complaint of 30 May. It said it could not find that educational provision had been missed because it was unable to locate any invoices that had not been paid.
28. On 19 August the Council wrote to Ms X with a review of her complaint. It upheld all elements of Ms X’s complaint including the delay in arranging educational provision for Y. The Council apologised that the situation led to the need for a Stage 2 complaint. It said it would ensure future EHC Plans are thoroughly proofread following Tribunal decisions.

Analysis

29. The Council did not issue the amended Final EHC Plan and Personal Budget on 4 April as required by the Tribunal and as expected by the law. It approved the personal budget on 5 June and issued the EHC Plan on 7 June. It issued draft documents that contained mistakes which Ms X had to deal with and extended the delay. The delay was fault which caused injustice in the form of distress, undue significant uncertainty and inconvenience.
30. The correspondence between the Council and Ms X in May demonstrates Ms X was unable to commence securing educational provision for Y until the Council gave her permission to do so on 5 June. This was fault that resulted in injustice of loss of educational provision for Y.
31. The delay lasted slightly more than two months. It broadly coincided with the first half of the summer term, and therefore lasted approximately half a school term. I note the missed educational provision included speech and language therapy (SALT), occupational therapy (OT) and relevant equipment costs.
32. We publish guidance on remedies that states where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per whole school term to acknowledge the impact of that loss. In addition to educational provision, additional remedies may also be required for injustice caused by fault in other provision such as missing OT and SALT.
33. I note the Council has apologised for various individual matters in its correspondence with Ms X. I also note its final complaint response of 19 August comprehensively upheld Ms X’s complaints and apologised the situation led to the need for the complaint to reach that stage. For this reason, I do not believe a further overall apology is necessary in this case.
34. We have recently recommended service improvements for this Council that are relevant to this investigation. I also acknowledge the Council has undertaken to ensure it improves the accuracy of EHC Plans following Tribunal decisions. Therefore I do not intend make further service improvement recommendations in this case.

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Action

35. Within four weeks of the date of this statement the Council will:

• Pay Ms X £900 (for half a school term, which takes into account the missed OT and SALT the Tribunal ordered) to acknowledge the impact of the loss of educational provision for Y. We recommend Ms X uses this payment for Y’s educational benefit.
• Pay Ms X £150 as a symbolic payment to recognise the undue significant uncertainty and inconvenience.
• Apologise for the injustice caused. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I have completed my investigation and uphold Ms X’s complaint. I find fault by the Council that caused injustice for the reasons laid out in the analysis. The Council agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman