Summary: Ms X complained the Council delayed completing an annual review and personal budget request for her son. The Council admitted it caused delay. It apologised and has improved the service. I have also suggested a financial remedy for distress caused.

The complaint

1. Ms X complained the Council delayed completing an annual review and personal budget request for her son, S. The delay caused Ms X to be unable to pay S’s learning support worker who has since taken alternative employment leaving S without a learning support worker and education. Ms X wanted the Council to improve the process.

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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 Ms X and the Council as well as relevant law, policy and guidance.
6. Ms 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

Education, Health and Care (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. 
8. 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) 
9. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
10. 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

11. 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.
12. 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.
13. 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.

What happened

14. I have summarised below the key events; this is not intended to be a detailed account.
15. S has an Education, Health and Care (EHC) Plan. The Council held an annual review in July 2024 and Ms X requested a personal budget for S. This was a renewal of a personal budget to continue to pay for S’s learning support worker (LSW).
16. Ms X told me the LSW had worked with S for some time. She built a strong relationship with S and had a big influence on his life. She encouraged him to go out into the community and engage with social activities and academic provisions. The personal budget was to continue paying for the LSW.
17. Ms X said she usually received the personal budget payments at the beginning of each term. She should have received the first instalment at the beginning of September. Ms X did not receive the payment so contacted the Council.
18. Ms X told me she was concerned if the Council did not approve the personal budget, she could not pay the LSW. Ms X said the LSW started to look for alternative employment.
19. The Council approved the personal budget request in late October and told Ms X the same day.
20. Ms X responded to the Council’s correspondence and said the LSW ‘is able to stay with us as she did not find alternative employment yet. Which is a blessing.’ The LSW was still working with S at this time.
21. The Council paid the first instalment the following day.
22. The Council issued the final EHC Plan following the July 2024 review in December.
23. In conversation with me, Ms X said the LSW got a new job which she started in January 2025. She said this was because of the uncertainty caused by the delay granting the personal budget.

The complaint

24. Ms X complained to the Council in September 2024.
25. The Council failed to issue a stage one response and on Ms X’s request, progressed straight to stage two which it issued in late December. It apologised for its failure to issue a stage one response within the 20-day timeframe which it said was due to staffing issues and increased pressure on the SEND service.
26. The Council upheld Ms X’s complaint and apologised for the delays experienced in the processing and allocation of S’s personal budget. It explained that due to pressures on the SEN service and limited staff members, it could not process the personal budget in a timely manner. It said the issue had since been resolved and the personal budget was in place.
27. In its complaint response, the Council said it was carrying out a continuous improvement programme which included training staff on statutory processes, SEND law and statutory timescales. The SEND team had increased staffing resources to address increased demand on the service and introduced a resolutions team to respond to complaint and tribunals. It also said the SEND team manager had spoken with the SEND officers to reinforce the importance of ensuring provision were in place in a timely manner.

Analysis

Delay in annual review

28. The Council held an annual review in July 2024. The Council should have issued a decision and draft EHC Plan within four weeks (August) and issued the final EHC Plan within a further eight weeks (October). The Council issued the final EHC Plan in December. This is a delay of roughly two months. This is fault.
29. This caused distress as the family did not know what the EHC Plan was going to look like, this was especially distressing as this was at the start of a new academic year.

Delay in personal budget

30. The Council admitted it could not process the personal budget request in a timely manner and upheld this part of Ms X’s complaint. It apologised for the distress caused.
31. In conversation with me, Ms X said not receiving the direct payments caused her significant distress as she was not sure she would receive the money and could not afford to pay for the LSW without it. I understand her concerns and find this caused significant distress for Ms X and the family.
32. Ms X said the delay receiving the direct payments caused the LSW to seek new employment elsewhere. This was because Ms X could not guarantee to pay her wages as she did not have access to the direct payments. Ms X said she has not been able to find a replacement LSW and this has caused significant further injustice to S. While I understand Ms X’s frustration, I cannot find the delay in the direct payments caused the LSW to find new employment. This also does not correlate with the email correspondence referenced above.

Summary of fault causing injustice

33. The Council delayed issuing the final EHC Plan and issuing the first instalment of the personal budget by roughly two months. This is fault which caused distress to Ms X and family as they did not know what the ECH Plan would look like, and they did not know if they could afford to pay the LSW.

Action already taken by the Council

34. The Council has back paid the direct payments to Ms X. This limits any financial injustice. It has also apologised for the distress caused by the delay.
35. The Council has made several service improvements in relation to the fault it accepted. I do not need to make any further recommendations for service improvements.

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Action

36. Within four weeks of this decision, the Council will pay Ms X £300 for the distress caused by the delay issuing the final EHC Plan and direct payments.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman