Summary: Ms X complained about the education, health and care needs assessment process. She also says the Council failed to secure the special educational provision in her child’s education, health and care plan and failed to respond to her request for a personal budget. She says this caused stress, anxiety and uncertainty. We found the Council failed to inform Ms X of the reasons for its decision to refuse her request for a personal budget. This caused her uncertainty, and she was denied the opportunity to request a review of the decision. The Council has agreed to apologise and make a payment to Ms X in recognition of the injustice caused. We do not uphold the remainder of Ms X’s complaints.

The complaint

1. Ms X complains that the Council:
• failed to seek advice from all the professionals she requested during an assessment of her child’s education, health and care needs;
• refused to amend the EHC Plan following the annual review in November 2023 and missed the statutory deadline to confirm whether it intended to do so;
• delayed in naming her child's post-16 placement;
• failed to secure the special educational needs provision in her child’s education, health and care plan;
• failed to respond to her request for a personal budget; and
• delayed in responding to her complaints.
2. Ms X says these issues caused her and her child distress, anxiety and uncertainty.

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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. 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)
6. 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.
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 Ms X’s complaints about the assessment process because, where a right of appeal to the SEND Tribunal has been used, we cannot investigate anything which happened before the appeal right began which could be considered by the Tribunal.
9. I have not investigated Ms X’s complaint that the Council refused to amend her child’s EHC Plan following the annual review in November 2023. Ms X had a right of appeal to the Tribunal about this.
10. I have not investigated Ms X’s complaint that the Council missed the statutory deadline to confirm whether it intended to amend the EHC Plan following the annual review. This is because the delay was minimal, and I do not consider this caused her an injustice significant enough to warrant investigating. Likewise, I will not investigate Ms X’s complaint that the Council delayed in naming her child's post-16 placement because the delay was minimal.

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How I considered this complaint

11. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
12. Ms X 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

Education, Health and Care Plan

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 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 

15. 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)  
16. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time

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.

Appeal rights

21. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out a EHC needs assessment or reassessment;
• decision that it is not necessary to issue an 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.

Mediation

22. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.
23. The Special Educational Needs and Disability Regulations 2014 provide that the council must arrange for mediation within 30 days from being informed that the parent or young person wishes to pursue mediation. Where the council is unable to arrange for mediation within that period in a case which involves a disagreement on a matter which can be appealed to the Tribunal, it must notify the mediation adviser as soon as possible. The mediation adviser must then issue a certificate within three days. On receipt of the certificate, the parent or young person can decide whether to appeal immediately or to wait for mediation to take place.

Key facts

24. Ms X’s child, C, has special educational needs.
25. In 2023 the Council completed an education, health and care needs assessment. In May it issued a draft EHC Plan. Shortly afterwards Ms X requested a personal budget.
26. The Council issued a final EHC Plan in June.
27. Shortly afterwards Ms X raised concerns that C was not receiving all the provision in the EHC Plan.
28. The Council contacted the school to discuss the concerns raised by Ms X and suggested the school meet with her. The school was of the view that support was in place and C’s needs were being met.
29. Later in June the Council wrote to Ms X explaining that a multi-disciplinary panel had considered her request for a personal budget. The panel concluded it was not clear what was being requested and the reasons for it because the Plan had only just been finalised. It also found the school was delivering the support in the Plan.
30. Ms X was dissatisfied with the Plan and requested mediation. The Council could not arrange mediation within 30 days and the mediation provider issued a certificate stating this.
31. Ms X appealed to the SEND Tribunal against sections B and F of C’s EHC Plan.
32. In November Ms X again requested a personal budget. A few days later an annual review meeting was held. Following this, the Council advised Ms X that it would not be making any amendments to C’s Plan.
33. In mid-November the school’s special educational needs coordinator (SENCO) signed a witness statement for the Tribunal. She said the provision in place for C was:
• weekly one-to-one mentoring and support from a trusted adult
• TA support in English (discreet because C did not like TA’s to be obviously providing support)
• extra time to complete tasks/rest breaks
• regular check-ins from the Year Manager
• use of the Learning Resource Centre daily for lunch and breaks
• teacher support in Spanish
• further strategies and updates for teachers via the independent educational psychologist.
34. The SENCO said C was making good progress academically and that, despite difficulties around their social interactions, had a good friendship circle and was always seen during breaks and lunchtimes with their friends. She said the school was meeting C’s needs. She said some of the provision it had tried to put in place following the issuing of the EHC Plan had not been welcomed or needed by C.
35. The SEND Tribunal considered Ms X’s appeal in July 2024. It dismissed the appeal and ordered the Council to finalise an EHC Plan incorporating sections B and F as set out in a working document approved by the Tribunal.
36. The Council issued a new final EHC Plan a few days later.

Analysis

Failure to secure provision in the EHC plan (June - July 2023)

37. Ms X says no provision was put in place between June 2023 when the Plan was issued and the end of term in July. She says the school’s SENCO told her that, as it was nearing the end of term, the provision would start at the beginning of the next term in September.
38. The Plan was issued in late June and the summer holidays were due to start in a month’s time. The school needed time to put the provision in place. So, I do not consider there was fault in failing to put the provision in place until the beginning of the following term in September.

Failure to secure provision in the EHC plan (September 2023 - July 2024)

39. Ms X says provision between September 2023 and July 2024 when C’s second EHC Plan was issued was “patchy”. She says C did not get all the one-to-one support to which they were entitled. However, the school stated that the provision was being delivered.
40. The EHC Plan issued in June 2023 states C would receive 15 hours per week TA support. It said, “This could be delivered in a range of ways, according to the needs of the child, including small group work, paired work, or short bursts of targeted intervention with an adult”.
41. Ms X wrote to the SENCO in December 2023 saying that some of the provision in section F of the Plan (one-to-one support from a TA) had been refused by C as they did not need it. Ms X considered C should receive another form of one-to-one support, for example extra tuition in English, to compensate for this. If Ms X wanted different provision to that set out in the Plan, it would have to be amended.
42. Ms X says Spanish tuition was not delivered on a one-to-one basis as set out in the Plan but, rather, in a small group of three pupils. The Plan does not specify one-to-one support. In fact, it specifically states that the support could be delivered in a small group. The provision costings plan drawn up by the school specified one-to-one Spanish tuition, but this is not a legal requirement given that it is not included in the Plan.
43. As the Plan did not specify one-to-one support, I find no evidence of fault.

Request for personal budget

44. Ms X requested a personal budget in May 2023. The Council informed her in June that the panel had declined her request and explained the reasons for this. This was a decision the panel was entitled to reach. So, there are no grounds to criticise this. However, the Council should have informed Ms X of her right to request a review of this decision. Failure to do so was fault and meant she lost the opportunity to have the decision reviewed.
45. Ms X made a further request for a personal budget in November 2023. At the time, she had appealed to the Tribunal. I do not criticise the Council for failing to agree to a personal budget pending the outcome of the Tribunal hearing.
46. The Council issued a new final EHC Plan in July 2024 following the Tribunal hearing. Section J states that the request for a personal budget was not agreed but provides no reasons for this decision. Ms X says she has been given no explanation by the Council.
47. I find the Council was at fault in failing to provide reasons for its decision to refuse Ms X’s request for a personal budget. It should have set out the reasons for refusing the request in writing and informed Ms X of right to request a formal review of the decision. Failure to do so caused Ms X uncertainty about the reasons for the decision and denied her the opportunity of having the decision reviewed.

Mediation

48. Ms X was not satisfied with the plan and so applied for mediation. She says the Council did not respond to her requests, so she appealed to the Tribunal.
49. I do not consider the Council was at fault. The SEND Regulations state that, where a council is unable to arrange mediation within 30 days, it must inform the mediation adviser and mediation certificate will be issued. This allows the parent or young person to appeal to the Tribunal. The Council was unable to arrange mediation within the 30-day timeframe because the manager responsible for the case was on leave. Accordingly, the mediation adviser issued a mediation certificate.
50. In any event, I cannot conclude on the balance of probabilities, that mediation alone would have been sufficient to resolve the issues. It may well be the case that it was the specific features of the Tribunal proceedings which allowed the matter to be resolved. I cannot therefore say that the Tribunal's proceedings would have been avoided had mediation taken place.

The Council’s response to Ms X’s complaints

51. Ms X made two complaints to the Council. The first complaint, relating to the personal budget, mediation and other matters was received by the Council on 3 November 2023. The Council responded at stage 1 of its complaints procedure within its published timescales.
52. Ms X escalated her complaint to stage 2 on 4 December. The Council responded on 29 January 2024. This was outside the Council’s published timescales which state that a stage 2 response will be issued within 25 working days. Failure to comply with the published timescales was fault.
53. Ms X made a separate complaint regarding lack of provision and other matters on 29 November 2023. The Council responded at stage 1 on 15 December which was within timescale. Ms X escalated her complaint to stage 2 on 12 January 2024. The stage 2 response was not issued until 16 April 2024. This was a significant delay and was further fault.

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Action

54. The Council has agreed that, within one month, it will pay Ms X £200 and send her a written apology for the distress caused by:
• failing to provide reasons for its decision to refuse her request for a personal budget and inform her of her right to request a formal review of the decision; and
• the delay in responding to her stage 2 complaint.
55. I also recommend that, within the same timeframe, the Council issues a reminder to relevant staff that, if the Council refuses a request for a direct payment, it must inform the child’s parent or the young person of the reasons for the decision and their right to request a formal review of the decision in writing.
56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. I find fault causing injustice.
58. The Council has 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