Summary: Mrs X complained the Council failed to meet statutory requirements when amending her child’s Education, Health and Care (EHC) Plan. We have found the Council at fault for delays in completing Z’s annual review and issuing their amended final EHC Plan. We have found the Council at fault for failing to respond to mediation requests in line with the SEN Code of Practice, for its inconsistent responses to Mrs X’s request for a personal budget, and for its communication and complaint handling. These faults caused Mrs X and Z avoidable frustration, uncertainty and distress. The Council has agreed to provide a written apology to Mrs X and Z and pay a financial remedy to recognise the injustice caused. The Council has agreed to share a copy of the Ombudsman’s focus report about personal budgets with relevant officers. The Council has also agreed to consider the findings of this investigation and provide a report to the Ombudsman, setting out the steps it will take to improve its services. There are parts of Mrs X’s complaint we have not investigated. We explain why in our decision statement.

The complaint

1. Mrs X complained the Council failed to meet statutory requirements when amending her child’s EHC Plan. Mrs X said the Council:
1. Significantly delayed completing the annual review and issuing a final amended EHC Plan;
2. Failed to issue an EHC Plan that was sufficiently quantified, in accordance with statutory requirements;
3. Failed to adjust the draft EHC Plan to make sure it was accurate, despite having not issued a final amended EHC Plan, resulting in a final EHC Plan that was not fit for purpose;
4. Failed to respond to mediation requests;
5. Failed to properly consider a request to calculate a personal budget; and
6. Refused to accept professional reports from independent therapists.
2. Mrs X said the Council communicated poorly, frequently not responding to correspondence or addressing concerns. Mrs X also said the Council showed poor complaints handling, by failing to fully uphold complaints where it accepted fault and failing to provide remedies.
3. Mrs X said the Council’s faults caused significant frustration, uncertainty and distress. She also said the inaccurate EHC Plan led to a loss of therapy provision and her child being rejected by prospective school settings.

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The Ombudsman’s role and powers

4. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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)

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What I have and have not investigated

Time

9. Mrs X’s complaints referred to the Council’s conduct when compiling the EHC Plan for Z’s older sibling. These matters occurred more than 12 months before Mrs X’s approach to the Ombudsman. I have not identified a good reason these complaints could not be brought to the Ombudsman sooner. The restriction in paragraph 4 applies and I will not investigate these matters.
10. I have exercised discretion to consider events relating to Mrs X’s youngest child from May 2023 onwards. Some of these events pre-date Mrs X’s approach to the Ombudsman by more than 12 months; however, the Council’s delays contributed to this delay and Mrs X never let the substantive matters rest in this period. It is necessary to consider these events to draw conclusions on the current injustice Mrs X claims.

Unquantified and inaccurate EHC Plan

11. Mrs X complained the Council issued an EHC Plan in which special educational provision was not sufficiently quantified, specific or measurable, in breach of the SEN Code of Practice (the Code). Mrs X said this was a widespread practice that also affected others.
12. The Ombudsman can sometimes consider whether EHC Plans are drafted in a manner compliant with the Code. Our jurisdiction turns on the specifics of the complaint and whether a relevant right of appeal exists, which the parent or young person has exercised. In this case, Mrs X appealed the content of the EHC Plan to the SEND Tribunal. The Tribunal would consider the content of an EHC Plan, including specific wording, as part of its deliberations. The restrictions set out in paragraphs 28-32 apply and I cannot consider this part of Mrs X’s complaint. Where this is an issue for others, individuals can complain to the Council and, if dissatisfied, bring their complaints to the Ombudsman to consider.
13. Mrs X complained the Council failed to amend the draft EHC Plan, instead saying Mrs X would need to wait until the next annual review. This resulted in the Council issuing an inaccurate EHC Plan that did not meet Z’s needs. The description of SEN needs and provision in the EHC Plan can be appealed to the SEND Tribunal. Mrs X exercised the right of appeal in this case. The same restrictions set out in paragraphs 28-32 apply and I cannot consider this matter.

Independent reports

14. Mrs X complained the Council refused to accept independent professional reports when carrying out EHC needs assessments, citing her understanding of other individuals’ experiences. In its final complaint response, the Council said it did not have a blanket policy on this and had instructed independent professionals in the past.
15. I have not considered this part of Mrs X’s complaint as this concerns personal injustice for others, rather than direct injustice Mrs X has experienced. It is open to directly affected individuals to complain to the Council and, if they remain dissatisfied, bring their complaints to the Ombudsman to consider.

School consultation response

16. Mrs X said one school setting provided a discriminatory consultation response about Z. Mrs X said she had complained about this to the Council, but the Council had not explained how it had addressed this.
17. This complaint is substantively about the school’s comments. The Ombudsman cannot consider the school’s actions, as most complaints about schools are outside our jurisdiction, as per the restriction in paragraph 6. As I cannot consider the substance of the complaint, I would not consider how the Council dealt with the matter as a complaint. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

18. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
19. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
20. 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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Relevant legislation, guidance and policy

Education, Health and Care (EHC) Plans

21. 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. 

Annual reviews

22. 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 process is only complete when the council 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)
23. 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.

Mediation

24. 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.
25. 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.
26. If the parent or young person wants to attend mediation, then councils must ensure that a mediation session takes place within 30 days of the request. The council must attend the mediation. (SEN Code of Practice paragraph 11.26)
27. If the council is unable to arrange mediation within 30 days, it must tell the mediator. The mediation adviser must then issue a certificate to the parent or young person within three days. (SEN Code of Practice paragraph 11.27)

Appeal rights and the Ombudsman’s jurisdiction

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

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

29. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
30. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
31. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
32. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started.

Personal budgets

33. 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.
34. 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.
35. 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.
36. Councils must consider requests for Personal Budgets on their merits and prepare a Personal Budget in each case, unless the sum is part of a larger amount and disaggregation of the funds for the Personal Budget:
• would have an adverse impact on services provided or arranged by the local authority for other EHC plan holders, or
• where it should not be an efficient use of the local authority’s resources.
37. In these circumstances, the council should tell the child’s parent or the young person why it is unable to identify a sum of money. It should work with them to ensure that services are personalised through other means. (SEN Code of Practice paragraph 9.106)

Complaint handling

38. The Council has a two-stage complaint procedure:
• At stage one of the complaints procedure, the Council will usually respond to complaints within 20 working days.
• At stage two of the complaints procedure, a senior manager will investigate and respond within 20 working days.
39. If it cannot meet these timescales, it will inform the complainant why and when it can respond.

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What I found

Key events

40. Below is a summary of the key events leading to this investigation. It does not detail every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
41. Mrs X’s child, referred to as Z in this statement, has an EHC Plan.
42. In May 2023, when Z was in Year 5, there was an annual review meeting to consider their EHC Plan. Shortly after the review meeting, Z’s school sent the report to Mrs X and the Council.
43. In July 2023, Mrs X wrote to the Council seeking an update, noting the Council received the report around seven weeks before. Mrs X also asked about increasing Z’s Speech and Language Therapy (SALT) provision and how this increase could be paid for. The Council confirmed it had received the review paperwork and it would confirm its decision soon. It said if it decided to amend the plan, it would take any proposed increases in SALT to a decision panel.
44. In September 2023, Mrs X wrote to the Council. Mrs X said two months had passed without an update, and 12 weeks had passed since the review meeting. Mrs X said the Council had breached statutory timescales. She said these delays were affecting arrangements for provision and Z’s transition to secondary school. Mrs X also sought clarity on how SALT and Occupational Therapy (OT) could be funded when the Council issued a final amended EHC Plan.
45. The Council responded to Mrs X to confirm it would amend Z’s EHC Plan. It apologised for the delay, stating it had a significant backlog of annual reviews to process and staff shortages. It said it would issue Z’s draft EHC Plan by 25 September 2023.
46. On 25 September 2023, Mrs X wrote to the Council. Mrs X had not received the draft EHC Plan. The Council said it would send the plan to Mrs X soon. Mrs X asked the Council if it had consulted with her preferred setting, School C, as there was a demand for places.
47. On 2 October 2023, the Council issued Z’s draft EHC Plan. Mrs X provided comments on the draft, highlighting some errors. Mrs X said she could meet with the Council if this would help. She also sought clarity on funding arrangements for SALT and OT provision through direct payments. The Council said it had passed on Mrs X’s request regarding funding through direct payments to senior officers.
48. Later in October 2023, the Council provided an amended draft EHC Plan. School C provided its consultation response, stating it could not meet Z’s needs, based on the draft EHC Plan. Mrs X said School C’s response contained discriminatory views about Z.
49. In December 2023, Mrs X asked the Council if they could work together to ensure the draft EHC Plan was accurate, hopefully allaying School C’s concerns at the same time. The Council said School C clearly objected to being named in Z’s EHC Plan. The Council confirmed the EHC Plan was still at draft, but said it would not make changes to try and facilitate Z’s admission to School C. Mrs X’s advocate asked the Council to make changes to ensure the plan was accurate, and then it could seek School C’s views following this. The Council said any further changes would need to be made at the next annual review. Mrs X told the Ombudsman she visited the new prospective setting for Z to ensure it understood the inaccuracies in Z’s draft EHC Plan. Mrs X said this resulted in the setting changing its decision on being able to meet Z’s needs.
50. In December 2023 and January 2024, Mrs X asked the Council multiple times to consider the evidence she recently provided to make sure Z’s EHC Plan was accurate. Mrs X did not receive a response.
51. On 6 February 2024, the Council issued Z’s amended final EHC Plan. I understand the Council made no substantive changes from when it issued the draft plan.
52. Around this time, I understand Mrs X sought mediation over the content of the plan. On 22 March 2024, Mrs X complained to the Council. On 29 April 2024, the Council responded. I have summarised Mrs X’s complaint and the Council’s responses as follows:
1. Mrs X said the Council ignored attempts to communicate and had done so for many years. The Council apologised if Mrs X had not received responses. It said it received a high volume of enquiries and did its best to respond. It said it was trying to increase resources to deal with annual review updates. It partially upheld Mrs X’s complaint.
2. Mrs X said the Council ignored requests for mediation. She said the mediation company had approached the Council with Mrs X’s request, but the Council had not responded. The Council said it was aware it was experiencing increased demand for mediation and was trying to increase capacity. It partially upheld this complaint.
3. Mrs X said the Council failed to adhere to statutory timescales when updating EHC Plans after an annual review. The Council said the delay had not disadvantaged Z. It did not uphold this complaint.
4. Mrs X said the Council ignored requests for personal budgets and staff did not understand legal requirements. The Council said it considered requests for personal budgets, but could not always provide these for therapy provision, due to the way its services were commissioned locally. The Council said it could not disaggregate Z’s personal budget from the overall budget. The Council did not uphold this complaint.
5. Mrs X said the Council ignored requests to update the draft EHC Plan to make sure it was accurate. The Council said it could not make changes to EHC Plans between annual reviews with the aim of facilitating a school place. The Council partially upheld this complaint.
6. Mrs X said the Council had ignored School C’s discriminatory comments about Z. The Council said it would address this with School C.
7. Mrs X said the Council refused to use professional independent reports as part of its assessments, even when NHS services were unavailable. The Council said it had no blanket policy to refuse use of private reports. The Council did not uphold this complaint.
8. Mrs X said the Council did not produce EHC Plans that were quantifiable or specific, as the Code required. Mrs X said this led to under-resourcing for EHC Plans in the district. The Council said its EHC Plans were subject to quality checks at different stages of the procedure. It did not uphold this complaint.
53. Around April 2024, after the Council did not respond to her requests for mediation, Mrs X submitted an appeal to the SEND Tribunal against sections B and F of Z’s EHC Plan.
54. On 23 May 2024, Mrs X asked the Council to escalate her complaint. She explained why she remained dissatisfied with the Council’s response. She challenged some of its assertions, the fact it had not fully upheld certain complaints, and asked for more clarification on other points. On 13 June 2024, the Council responded. It said it could not add anything further to its previous response. It noted Mrs X had appealed to the SEND Tribunal and said any issues with Z’s EHC Plan would be addressed through this procedure.

Analysis

Did the Council act with fault?

Annual review

55. The annual review meeting for Z’s EHC Plan took place on 11 May 2023. Following this, the Council decided to amend Z’s EHC Plan. The Council should have confirmed this decision in writing and provided a copy of Z’s draft EHC Plan within four weeks of the review meeting, by 9 June 2023. The Council should have gone on to issue Z’s amended final EHC Plan within 12 weeks of the annual review meeting, on or around 4 August 2023.
56. It took the Council 18 weeks to confirm it would amend Z’s EHC Plan and 20 weeks to provide a draft. It took the Council 38 weeks to issue Z’s final amended EHC Plan.
57. The Council significantly delayed completing the annual review procedure. It also significantly delayed amending the plan and issuing an amended final EHC Plan. I have found the Council at fault for this.

Mediation

58. Mrs X said she sought mediation before appealing to the SEND Tribunal, as the Code requires. Mrs X said the Council did not respond, or provide an update to the mediators. Instead, the Council allowed Mrs X’s request to expire after 30 days, at which point the mediators issued Mrs X with a certificate confirming she could appeal. In its complaint responses, the Council did not dispute this.
59. Paragraphs 26-27 set out that where parents seek mediation, councils must engage with the request, by arranging and attending a mediation session within 30 days of the request. If this is not possible, councils must confirm this to the mediators, so a certificate can be issued promptly.
60. The Council did not arrange or attend a session, nor confirm it could not do so. By failing to take either action, the Council acted with a manner not compliant with the Code. I have found the Council at fault for this.

Personal budget

61. Mrs X said the Council was wrong not to calculate a personal budget for Z’s EHC Plan and formalise direct payments when requested. In her complaint, she highlighted her communications with the Council about this, where the Council took occasionally conflicting positions on personal budgets, or did not respond to requests, beyond advising they had been passed on. In its complaint response, the Council said:
• It considered all requests for personal budgets.
• It typically could not offer personal budgets for therapy provision, due to how these services were commissioned locally, as part of a block contract. The Council said it could not disaggregate Z’s budget from the overall budget for these services.
• Where an EHC Plan specified therapy provision, which the NHS could not provide, the Council would commission this separately.
62. Paragraphs 33-37 confirm the Code allows councils not to calculate personal budgets where it cannot disaggregate the budget from an overall amount. I have not therefore found the Council at fault for the position set out in its complaint responses. However, the Code says councils should promptly explain this to parents and set out other ways it can tailor services. The Council’s failure to clearly clarify this point sooner is in breach of this section of the Code. I have found it at fault for this.

Communication

63. Ms X experienced inconsistent communication from the Council, over a prolonged period and at all stages of the EHC Plan review and amendment procedure. I have seen evidence the Council frequently delayed its responses, or did not respond at all, at critical times. I have found the Council at fault for its communication with Mrs X.

Complaints handling

64. Paragraph 38 sets out the timescales for the Council’s complaints procedure. The Council’s stage one complaint response was around one week late. There was no delay in providing its stage two complaint response.
65. The Council only partially upheld several of Mrs X’s complaints, despite agreeing with many of them in substance and offering no mitigation in its explanation. For example, the Council accepted it was under-resourced, affecting its communication, adherence to annual review timescales, and the timeliness of its mediation responses. It also accepted it had not met statutory timescales when issuing Z’s amended final EHC Plan. Without any further clarification or mitigation, these complaints should have been fully upheld. The Council also offered no substantive remedies, even where it identified shortcomings in its service.
66. For these reasons, I have found the Council at fault for its complaint handling.

Did the Council’s faults cause an injustice?

67. The Council delayed confirming its decision to amend Z’s EHC Plan, providing a draft plan, and issuing a final EHC Plan. Cumulatively, these delays caused prolonged and avoidable frustration, uncertainty and distress for Mrs X and Z. These are injustices that have not been remedied.
68. Mrs X said the Council’s delay meant the EHC Plan was not prepared in time to present to their preferred settings. This led to multiple settings rejecting Z, based on an inaccurate draft plan. I have considered these points carefully, recognising the impact Mrs X describes and the significance of this to her complaint. However, having carefully considered our jurisdiction, I consider the restrictions in paragraphs 28-32 apply. The injustice claimed is that Z was almost unable to attend their preferred setting, and that Mrs X had to expend avoidable effort to address the setting’s concerns. Ultimately, the setting named on the plan is the Council’s decision: it can name a setting on a plan, even where the setting objects, if it believes that setting is best placed to meet the child’s needs. Decisions about the setting named in the EHC Plan come with a right of appeal to the SEND Tribunal, which means I cannot consider this decision. I cannot investigate the consequences of a decision, if I cannot consider the decision itself.
69. However, the delay in issuing the amended final EHC Plan significantly frustrated Mrs X’s right to appeal to the SEND Tribunal. Mrs X should have had the right to appeal against any decisions she disagreed with from August 2023. That she could not is an injustice.
70. The Council not engaging with the mediation procedure in accordance with the Code further frustrated Mrs X’s appeal right, causing avoidable delay and frustration. This is an injustice to Mrs X and Z. If this fault is not addressed, it could also cause injustice to others in the future.
71. The Council’s position on disaggregating personal budgets, set out in its complaint response, is permissible, in accordance with the Code. However, the Council’s inconsistent responses caused uncertainty for Mrs X, with Mrs X telling the Ombudsman the Council eventually did agree an arrangement to pay for therapy provision outside of its commissioned services. This uncertainty is an injustice. The Council’s conflicting responses also suggests officers are not uniformly clear what the Code expects, or how to clearly consider and respond to personal budget requests in these circumstances. This fault could cause injustice for others in future, if not addressed.
72. The Council’s inconsistent communication caused significant avoidable frustration and distress. This is an injustice to Mrs X.
73. The Council’s failures in complaint handling mean it did not effectively deal with Mrs X’s complaint and did not provide remedies for injustice it accepted. Had the Council effectively managed Mrs X’s complaint, it is possible Mrs X’s need to approach the Ombudsman would have been mitigated or avoided. Mrs X therefore suffered avoidable time and trouble, which is an injustice.

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Action

74. I have carefully considered the Ombudsman’s Guidance on Remedies when making the following recommendations.
75. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mrs X and Z for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Pay Mrs X £400 in recognition of the avoidable frustration, uncertainty and distress she experienced because of the Council’s faults.
3. Share a copy of the Ombudsman’s focus report “Parent power: learning from complaints about personal budgets” with relevant officers, to set out the Ombudsman’s expectations when considering and responding to requests for personal budgets.
4. Review the findings of the Ombudsman’s investigation with senior officers to consider the faults and injustice found, to identify required improvements. The Council should provide the Ombudsman with a written report detailing its conclusions and any actions it proposes to take, along with relevant timescales.
76. The Council should provide us with evidence it has complied with the above actions.

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Decision

77. I have completed my investigation with a finding of fault causing injustice. I have made recommendations 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