Summary: Ms X complained about the Council’s delay in making decisions after its annual review of her daughter, Y’s Education Health and Care Plan and its failure to carry out six monthly reviews, as stipulated by that Plan, which caused her avoidable worry and stress. We asked the Council to take steps to remedy the injustice and it agreed to apologise and make a symbolic payment.

The complaint

1. Ms X complained the Council failed to meet its statutory obligations in relation to her daughter, Y’s Education, Health and Care Plan (EHC Plan). In particular she said it:
• delayed making funding decisions;
• only funded the provision for up to six months at a time;
• failed to carry out six monthly reviews, as stipulated in the EHC Plan; and
• did not communicate properly with her.
2. Ms X also raised concerns that the Council was carrying out reviews of Y’s EHC Plan, but it was not independent and did not have the necessary expertise.
3. Ms X said the failings had caused her emotional stress and worry.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information provided by Ms X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

What happened

8. Y has an Education Health and Care Plan (EHC Plan), which was issued in June 2023, following a Tribunal order. It states she is educated otherwise than in school (EOTAS). The Council makes direct payments to Ms X, which is a payment that enables Ms X to arrange the agreed package herself.
9. The Council carried out an annual review in early May. It should have shared relevant paperwork with Ms X within two weeks and decided whether to amend the EHC Plan or amend it within four weeks.
10. In its complaint response, the Council said officer A completed the paperwork within two weeks and sent this to Ms X in early June. It said it agreed to maintain Y’s EHC Plan without amendments in July 2024. It apologised for the delay.
11. Its panel discussed the case in early July, but decided more information was needed before confirming the EOTAS package. In particular, because Y had significant health and social care needs, it wanted its SEND team and Y’s social worker to liaise closely before decisions were made. It agreed to continue the funding for three months to allow time for further information to be obtained.
12. In its complaint response, the Council accepted it did not confirm the extension of funding in writing to Ms X. (It did this in September 2024). I understand a joint review meeting was arranged in September 2024, after Y’s case had moved to the Council’s Preparing for Adulthood team, and a further annual review was arranged in December 2024.
13. Also in its complaint response, the Council confirmed it carried out a review of the direct payments in February 2024 and an annual review in May 2024. It accepted only one of those reviews was in line with the description in Y’s EHC Plan.
14. The Council found no evidence officer A had blocked a six monthly review and considered officer A had communicated appropriately with Ms X.

My assessment

15. The Council is under a duty to arrange the provision in an EHC Plan and to review the Plan at least every 12 months. However, this does not mean it is required to make a direct payment to Ms X for a 12 month period and therefore the Council is not at fault for not agreeing to do so. It is entitled to carry out reviews of the direct payments are being made in between annual reviews and, in this case, the EHC Plan stipulates six monthly reviews. Depending on the outcome of those reviews, the Council could decide to amend the EHC Plan, and it does not need to wait until an annual review to do so.
16. The Code allows councils to ask a school or other educational setting to carry out annual reviews on its behalf. However, the final decision about whether to end the plan, maintain it without amendment or amend the plan is for the Council to make. In cases where the EHC plan provides for an EOTAS package, where there is no educational setting to ask, the Council is entitled to arrange the annual review itself and is not required to ask an independent person or body to do so. Apart from the delay in making its decision, there is insufficient evidence of fault in the way the Council carried out the review to justify further investigation.
17. Although the records indicate there was a breakdown of communication between Ms X and officer A, this has not caused a sufficient injustice to Ms X to justify further investigation.
18. If we investigated further, it is likely we would find fault with the Council for its delay in making a decision after the annual review in May 2024, and for its failure to carry out six monthly reviews in line with Y’s EHC Plan. There is no evidence to suggest Y has suffered an injustice because her EOTAS package has been funded throughout. However, it has caused Ms X avoidable stress and worry, which is an injustice to her.
19. We asked the Council to take steps to remedy the injustice caused and it has agreed to take the following steps within one month of our final decision:
• apologise to Ms X for the failure to carry out six monthly reviews as stipulated in Ys EHC Plan in line with our guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. (It has already apologised for the delay in making a decision after the annual review); and
• pay her £200 to recognise the injustice caused.

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Final decision

20. We have upheld this complaint, which the Council has agreed to resolve early by providing a proportionate remedy for the injustice caused to Ms X.

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Investigator's decision on behalf of the Ombudsman