Summary: Miss B complained about the Council’s handling of her child, Y’s, annual review and personal budget. We find the Council at fault for delays in the annual review process and for failing to review the personal budget at the agreed time. This caused Y and Miss B distress, frustration and uncertainty. The Council has agreed to apologise, make a symbolic payment to Miss B and complete service improvements to remedy the injustice caused.

The complaint

1. Miss B complained the Council:
• Delayed in completing assessments and decision making.
• Failed to communicate effectively throughout the process.
• Failed to provide the special educational provision detailed in her child’s Education, Health and Care Plan.
• Failed to properly authorise a personal budget for the whole duration of the Plan.
• Delayed in processing an annual review in May 2023.
• Failed to engage in mediation.

Miss B says this has impacted her mental health and has impacted on her role as a carer. She also says her child’s mental health and self-esteem have been impacted and his special educational needs are not being met. Miss B would like the Council to fund and provide the special educational provision detailed in the Education, Health and Care Plan and provide compensation for the provision Y has missed.

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The Ombudsman’s role and powers

2. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. 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)
4. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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).
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 have and have not investigated

7. I have exercised my discretion to investigate the Council’s actions following the annual review which took in May 2023. The annual review took place more than 12 months before Miss B’s complaint to us however the Council’s delay in completing the annual review meant the injustice remained ongoing until May 2024, three months before Miss B complained to us.
8. I have investigated the Council’s actions in relation to Miss B’s request for mediation. This is because the Council has a legal duty to participate in mediation when it is requested by the parent and, in this case, mediation was not subject to the jurisdiction of the SEND Tribunal.

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How I considered this complaint

9. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
10. Miss B 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

EHC Plans

11. 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.
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). 
13. 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.

Annual review

14. 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 take place. The process is only complete when the council issues a decision about the review.
15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the Plan is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. 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.

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.
21. The council’s 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.

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. A child’s parents or the young person do not have to consider mediation if their disagreement only relates to the placement named in section I or that no placement is named in section I.
24. If a parent requests mediation the Council has a duty to participate (Children and Families Act 2014, Section 54(2)).

What happened

25. The following is a summary of key events. It is not intended to be a detailed chronology.

Annual review

26. An annual review meeting took place in mid-May 2023. In accordance with statutory timeframes the Council should have issued its decision and amendment notice no later than mid-June 2023. The Council should have issued the final amended Plan no later than the beginning of August 2023.
27. Between August 2023 and March 2024, the Council obtained further assessment reports which detailed Y’s special educational needs.
28. A final amended EHC Plan was issued at the beginning of May 2024. A further final amended EHC Plan was issued 20 days later. This is a delay of approximately 9 months.
29. The Council remained in email communication with Miss B throughout the process. Miss B requested phone calls to discuss her concerns however the Council responded via email and requested Miss B put her concerns in writing. In its stage one complaint response the Council explained it moved to email only communication in February 2023 and apologised for any inconvenience this caused Miss B.
30. Miss B emailed the Council with some questions at the beginning of July 2024. A Council officer responded within 8 working days to tell Miss B her email had been redirected to the relevant SEND officer who would respond in due course. The SEND officer provided a full response to Miss B’s email within a further 12 working days. Aside from this one email, the SEND officer responded to all Miss B’s communication promptly and without delay.

Personal budget and special educational provision

31. As part of the annual review process, in August 2023 Miss B applied for a personal budget to fund private tuition. The provision detailed in Y’s Plan did not specify private tuition but stated Y required an ‘enhanced package of learning’ to support with embedding skills in English, Maths and Science. The Council agreed to the personal budget for private tuition to provide this provision for the academic year beginning September 2023.
32. In February 2024 the Council increased Y’s EHC Plan funding to ensure the section F provision could be provided by the school.
33. In April 2024 Miss B submitted a further personal budget request to cover tuition over the summer holidays and funding for the next academic year. The Council responded to tell Miss B it did not agree to her personal budget request as there was no professional evidence which supported the need for the private tuition to continue over the summer.
34. The Council sought additional advice from an Educational Psychologist who confirmed additional summer tuition was not necessary in addition to the support set out in Y’s EHC Plan. The Council then wrote to Miss B and explained it agreed to fund private tuition for the autumn 2024 term, and it would review this decision prior to the Christmas holidays to ensure the provision provided by the school was meeting Y’s needs.
35. The Council did not complete the review until February 2025, which is a delay of approximately two months. At the February 2025 review, the Council agreed to provide a personal budget for private tuition.

Mediation

36. The Council issued a final amended EHC Plan in May 2024. Miss B contacted the mediation company the following day to request a mediation meeting.
37. The Council failed to respond to Miss B’s request for a mediation meeting. The mediation company issued a part 3 mediation certificate after 30 days.

My findings

38. There was an approximately 9 month delay in the Council issuing an amended EHC Plan following the May 2023 annual review. This is fault which caused Y and Miss B distress, frustration and uncertainty.
39. The council told Miss B it would review its decision on private tuition in December 2024. There was a two month delay in the Council reviewing its decision which caused Y to miss two months of tuition. This is fault which caused Y and Miss B frustration, distress and uncertainty.
40. There is no evidence the Council failed to secure the provision detailed in section F of Y’s EHC Plan. The wording in the plan does not specify private tuition and the Council provided additional funding in the hope the school would be able to provide the level of provision detailed in the Plan. The Council kept the provision under review.
41. Throughout the annual assessment process, the Council remained in communication with Miss B and regularly responded to her emails. There was one email which Miss B sent at the beginning of July 2024 which did not receive a full response for 20 working days. The Council did contact Miss B in the meantime to tell her she would receive a response in due course, and there were no other communications which received a delayed response, so I do not consider this caused Miss B significant injustice.
42. The Council failed to respond to Miss B’s request for mediation. This is fault which caused Miss B frustration, however there was no impact on Miss B’s right to appeal.

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Action

43. Within one month of the final decision the Council will:
• Apologise to Miss B for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
• Make a symbolic payment of £900 to Miss B in recognition of the injustice caused by the delay in issuing a final amended EHC Plan following the annual review in May 2023. This is calculated at £100 per month of delay.
44. Within three months of the final decision the Council will:
• Issue a reminder to all relevant staff of the Council’s duty to participate in mediation when requested.
• Have a process in place to ensure all mediation requests are responded to within 30 days.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The council has agreed 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