Summary: Mrs X complained the Council delayed in completing an annual review of her child, B’s, Education, Health and Care Plan. We find the Council at fault for a delay in completing the annual review and poor communication about the personal budget. This caused B to miss education. The Council has agreed to apologise, make a symbolic payment and complete service improvements to remedy the injustice caused.

The complaint

1. Mrs X complained the Council delayed in completing an annual review of her child, B’s, Education, Health and Care Plan and it failed to provide funding which was agreed in November 2023. Mrs X says the delay in the annual review meant B did not have access to proper education and the delay in securing funding meant he could not complete his preferred GCSE’s. Mrs X says her own, and B’s mental health have been impacted. Mrs X also says she has had to privately pay for professional assessments and tuition. Mrs X would like the Council to:
• Apologise.
• Provide funding for B to complete their GCSE’s.
• Reimburse the cost of private assessments and advocacy.
• Train its staff on how to support parents to make them feel listened to, valued and believed.
• Improve its signposting for the Education, Health and Care Plan process.
• Complete in-person co-production meetings.

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The Ombudsman’s role and powers

2. 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)
3. 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(1), as amended)
4. 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

5. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. Mrs 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 plans

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. 
8. 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)  
9. 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 reviews

10. 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 then take place. The council then issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
11. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Personal budgets

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 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. An annual review of B’s EHC Plan was held in July 2023. During the annual review process, Mrs X requested a personal budget to provide B’s special educational provision outside of school as he was unable to attend.
17. The personal budget request was refused by the Council twice but approved in November 2023 after additional evidence was provided by an educational psychologist.
18. According to the statutory timeframes the Council should have issued B’s final amended EHC Plan no later than the beginning of October 2023.
19. The Council issued the final amended Plan at the end of December 2023. Section I of B’s amended Plan stated he would access ‘Education Other Than at School’ (EOTAS). Section J stated no personal budget had been requested.
20. In November 2023 the Council emailed Mrs X to explain it had agreed an EOTAS package which was made up of 12 hours of core subject tutoring per week, two hours of art and the provision of a desk and laptop to allow B to access the sessions. In December the Council requested Mrs X provide bank details and confirm whether she wished for direct payments.
21. Mrs X provided the information, but she did not receive any further contact from the Council. Mrs X contacted the Council three times in January to request an update on the progress of the personal budget funding to secure B’s EOTAS provision.
22. Due to the lack of response from the Council, Mrs X sent a stage one complaint at the end of January 2024.
23. The Council responded to Mrs X’s complaint in early February 2024. In its response, the Council acknowledged the personal budget had not been paid, but it failed to admit fault, apologise or acknowledge the impact of the delay.
24. The stage one complaint response told Mrs X the process for providing the personal budget had been started and it would chase the finance team for payment.
25. Mrs X contacted the Council again at the end of February 2024 as she had not heard anything further from the Council about the personal budget payment.
26. The Council did not make a personal budget payment to Mrs X until March 2024.

My findings

27. There was a two month delay in the Council issuing the final amended Plan following the annual review. This is fault which caused distress, frustration and uncertainty to B and Mrs X.
28. There was a delay of approximately five months in securing the funding and provision set out in B’s EHC Plan. During this time the Council’s communication with Mrs X was poor and it did not know B was not receiving the provision detailed in his EHC Plan. This left B without access to suitable education during an important period of his education, between September 2023 and March 2024, during his final year of school. The delay impacted B’s GSCE’s and subsequent college options.
29. The Council’s stage one complaint response acknowledged the delay in providing the personal budget payment. However, the Council failed to apologise, admit fault or acknowledge the impact of the delay on B’s education. This is fault which caused Mrs X distress and frustration.

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Action

30. Within one month of the final decision the Council will:
• Apologise to B and Mrs X 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 the apology.
• Make a symbolic payment of £3,000 to Mrs X. This is calculated at approximately £1,500 per term of delay and considers the impact the delays had on B’s GCSE year and subsequent academic opportunities.
31. Within three months of the final decision the Council will:
• Provide training to its relevant staff to ensure they are aware of their responsibilities for ensuring the personal budget process is concluded without delay.
• Ensure it has a clear information sharing process in place to provide parents and young people with the relevant information about personal budgets during the EHC needs assessment or annual review process.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. 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