Summary: Ms X complained the Council delayed issuing the amended Education, Health and Care Plan following a tribunal decision in May 2023. The amended plan was provided 31 weeks late and the required provision was not put in place until May 2024 and then not all of it. This resulted in Ms X’s son missing out on suitable education and caused distress to them both. A financial remedy for the distress and lost education provision is agreed.

The complaint

1. Ms X complained the Council delayed issuing the amended EHC Plan following a tribunal decision in May 2023 and delayed agreeing a personal budget.
2. Ms X says her son was without suitable educational provision until June 2024 and they both have experienced distress.

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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. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• considered the relevant law, policy and guidance;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

EHC Plan 

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.

Key facts

12. This section sets out the key events in this case and is not intended to be a detailed chronology.
13. Ms X’s son, B, has had an EHC Plan and attended a special school. Since November 2021, B was unable to attend school. At an annual review held in January 2022, the school said it no longer felt it could meet B’s needs. However, the school was named again at Section I of B’s EHC Plan resulting in Ms X submitting an appeal.
14. The tribunal hearing in May 2023 said EOTAS (education other than at school) was the appropriate provision for B. The Council had five weeks from the date of the tribunal decision to issue the amended EHC Plan and ensure the provision detailed in it was in place. In response to my enquiries the Council said it issued the draft EHC Plan on 11 November 2024 and the final version on 19 December 2024.
15. B’s school provided some alternative education provision from July 2022. This consisted of five hours of online gaming mentoring and 45 minutes of animal therapy per week. Five hours of tutoring per week was agreed from January 2023 but this broke down after a couple of sessions. Tutoring began again in April and continued until July 2023.
16. After the tribunal hearing in May 2023 which named EOTAS, the school kept B on roll and six hours of online game mentoring and 45 minutes of animal therapy was provided. Only one session of tutoring was provided between September and November 2023. The school intended to remove B from its roll in September 2023 as it believed the Council would have put the full EOTAS package in place by then.
17. In August 2023, Ms X requested a personal budget. It was considered by a Council panel in September but was refused. The panel instructed an officer to ensure a package of education was put in place that met the provisions identified at Tribunal. Ms X contacted the Council on 11 October requesting details of the panel decision and why it felt her personal budget request deviated from the provision set out in the Tribunal order. She also asked the Council for its alternative proposal given that it had refused her request.
18. Ms X met with the case officer on 26 October who explained he had not had any further guidance regarding her request and was unable to give an timescales for further action. At that time B was only receiving six hours of online gaming mentoring and 45 minutes of animal therapy as previously arranged by the school.
19. Ms X met with the case officer again on 3 November. On 15 November, the case worker sent Ms X a summary of a meeting held with a senior manager setting out the provision identified in the EHC Plan. Ms X says that it did not include all the elements such as the sensory programme and physiotherapy. The case officer explained to Ms X that the Council no longer administered personal budgets and that EOTAS package payments were not made directly to providers. He said the specific costings of the package would need to be agreed by panel and told Ms X the panel had three planned meeting dates in December.
20. Ms X, frustrated that no provision was in place, sent a pre-action protocol letter to the Council on 23 November. The letter required the Council to implement all the provision by 29 November or agree to the personal budget request made by Ms X to enable her to arrange the required provision.
21. The Council responded on 15 December. It accepted and apologised for the delays putting B’s EOTAS package in place. It said it had been actively cosulting with providers to arrange B’s education and that a proposal would go to panel on 20 December for approval. It said it was its intention to put the provision in place as soon as possible following ratification by the panel. However, it noted that provision would not be in place until all professionals working with B were provided with specific training and this was expected to take place in February 2024.
22. The Council also accepted that having a policy which did not allow direct payments to parents was unlawful and it invited Ms X to request a formal review of its decision. It said that as it was in the process of providing the EOTAS package, it hoped a direct payment would not be required. It concluded by saying that it did not believe that bringing a judicial review would progress matters more quickly.
23. Information provided to me by Ms X indicates that some provision began in May 2024. The first personal budget payment was made to Ms X on 19 June covering the period from May to June 2024. Monthly payments continued and then on 4 November a much larger payment was made which I assume included payments for equipment agreed as part of the tribunal order. From that date onwards, the Council has made Ms X regular monthly payments.

Analysis

24. The Council took 31 weeks longer than it should have to issue a finalised version of the EHC Plan. It says it believes this was due to an oversight between the case officers. However, the requirement to issue the final plan within five weeks of the tribunal decision is a statutory timescale and so the failure to do this is fault.
25. As well as issuing the final EHC Plan, the Council was required to ensure the provision stated in the plan was delivered. This did not happen and this is also fault. A council panel did not even consider Ms X’s proposals until September and then declined her request for a personal budget.
26. The information provided indicates that some provision was put in place from May 2024 and that payments were made from that date. I therefore conclude that prior to May 2024 the Council was not meeting its duty to deliver the provision set out in B’s EHC Plan. This is fault. I consider that as a result B lost a year of the special education he should have received.
27. From May 2024 onwards the agreed provision has started. Not all the provision began in May 2024 onwards and not all funding was provided in May 2024. I particularly note the large payment made in November 2024 which covered provision from May 2024. This means that Ms X was unable to arrange all the specified provision until she was provided with the funding for it. I also note that Ms X says B is not accessing all of his package. She says she is building up slowly and working within his limitations. Ms X feels that the delays added to this and that B was capable of and wanted more provision but nothing was being provided. The proposed remedy reflects the fact that different levels of provision was funded and provided.

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Action

28. To remedy the injustice caused as a result of the fault identified in this case the Council will, within a month of my final decision, take the following action:
• Apologise to Ms X for the fault identified. 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;
• Make a payment of £6,600 for the loss of three terms of lost educational provision from June 2023 to May 2024;
• Make a further payment of £1,800 for the lost educational provision from June 2024 to November 2024; and
• Make Ms X a symbolic payment of £1,000 in recognition of the prolonged distress caused as a result of the delay in providing the EOTAS package of education and her time and trouble in pursuing this.
29. The Council should provide us with evidence it has complied with the above actions.
30. I have decided not to make any service recommendations in this case. This is because the Ombudsman has upheld other complaints against this Council about similar matters where the remedies include service recommendations.

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Decision

31. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman