Summary: The Council was at fault for a delay in issuing a final amended Education Health and Care plan following a Tribunal order, and a delay in providing the personal budget agreed. This meant a delay in Mrs X having the funds to arrange the provision for Y. The Council has already apologised for the delay. It agreed the funds will be available until 31 August and it will pay her the balance of any unused funds so she can arrange additional provision to make up for the missed period. In addition, it will make a modest payment to remedy the injustice caused by the delay in providing sensory equipment.

The complaint

1. Ms X complained the Council:
1. failed to provide the provision set out in her son, Y’s Education, Health and Care (EHC) plan between January and September 2022;
2. delayed in issuing an amended EHC plan following a Tribunal order in September 2022; and
3. delayed in providing the personal budget to fund the provision in the amended plan between late September and early November 2022.
2. Ms X said this meant Y missed a substantial amount of provision and that, although the Council accepted it had delayed in arranging the funding, it had declined to make a financial payment so she could arrange additional provision to make up for the provision missed.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

8. I considered:
• the information Ms X provided and spoke to her about her complaint;
• the information the Council provided in response to our enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education or name a different school. Only the tribunal can do this.
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

The Hillingdon judgement

12. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Scope of this investigation

13. We have considered an earlier complaint from Ms X about the Council’s failure to provide Y with a suitable education in the academic year 2021-22 under case reference 22 001 472. However, that investigation did not expressly consider any failure to deliver the provision in section F of Y’s EHC plan dated January 2022.
14. Ms X appealed to the SEND Tribunal because she was unhappy with what the January 2022 plan said about Y’s needs (section B), the provision the plan said he needed (section F) and because the Council had not named an educational placement (section I).
15. Case law says we cannot consider any matter that is ‘inextricably linked’ to an appeal. In this case Y’s EHC plan named a type of school but his parents wanted an education otherwise than at school (EOTAS) package. The provision in section F was set out on the basis Y would be attending a school. The appeal covered both section F (provision) and section I (placement) and the two are closely linked. Therefore, we cannot consider or remedy a failure to provide the provision in section F of Y’s EHC plan for the period January 2022, when the right of appeal arose, until September 2022, when the SEND Tribunal issued a consent order.
16. On this basis, I have only investigated the complaints set out at b) and c) in paragraph 1 above.

What happened

17. In September 2022 the Tribunal ordered the Council to issue a final amended EHC plan for Y within 2 weeks, which meant by 21 September 2022. The Council told me it issued the amended plan on 22 September. However, I have seen an email from the Council to Ms X on 26 September which said the final amended plan was with its admin team and “should be with you imminently”. It was not uploaded to the hub and available for Ms X to access until 27 September 2022.
18. As agreed during the appeal, the plan stated Y would receive an “education otherwise than at school” (EOTAS) package, which would be funded using a personal budget. A personal budget is a payment to Ms X so she can arrange the provision set out in Y’s EHC plan. The working document, which set out the amendments agreed during the appeal process, confirmed the amount agreed to cover the annual cost of the provision. However, there was no specific order by the Tribunal about how quickly an initial payment should be made.
19. Ms X said the Council provided the funding on 23 November 2022, 12 weeks after the Tribunal hearing. In response to her complaint, the Council accepted it took “longer than normal” to release the funds to Ms X, for which it apologised.
20. In response to my enquiries, the Council said the funds were agreed and in place from 1 November 2022, and provided:
• an email to Ms X on 30 September 2022 with the personal budget policy, asking Ms X to set up a specific bank account for the personal budget and provide the details of that account;
• an email from Ms X on 3 October with the bank account details, acknowledged the same day;
• an email dated 25 October 2022 from the SEND team to the finance team to set up the initial payment; and
• an email to Ms X on 1 November 2022 explaining the personal budget had been set up and how it would work. This email said Ms X would need to send it an invoice for the “initial float”.
21. Ms X said she needed a purchase order number before she could send the invoice for the initial float. She has provided emails showing she chased the Council about this on 5 and 9 November. She did not receive this information, but the Council’s finance team agreed she could send the invoice without it, which she did on 10 November. Ms X chased the Council about the payment on 18 November. The Council responded the same day to say the system had been set up for 28 day payment, which had now been amended and Ms X should receive payment the following week. Ms X has provided a bank statement, which confirms the money was received into the bank account on 23 November 2023.
22. Ms X complained that, as a result of the delay, Y would not receive all the provision agreed because the funding was due to end in late June at the end of the academic year. She set out the provision missed and asked the Council to pay her £6,500 so she could arrange additional provision during weekends and school holidays to make up for the provision Y had missed out on. The Council refused to pay this, and Ms X complained to us.
23. Ms X said she could not arrange Y’s provision until the Council had released the funding and its delay in doing so meant Ms X struggled to arrange some of the provision. This was because some professionals had full schedules by the time Ms X was in a position to arrange the provision. As a result, the face to face mentor was not in place until December 2022, and both the speech and language therapy (SALT) and the online mentor did not start until mid April 2023. There was also a delay in obtaining some of the sensory equipment as it was out of stock in December due to Christmas demands and so was not available to order until January 2023.
24. In response to my enquiries, the Council confirmed that the personal budget covers 39 weeks (a full academic year), but Ms X can claim for any provision she has arranged up to 31 August 2023. Ms X said the Council had not told her she could claim up to the end of August, so she understood the funds were only available until the end of the academic year.

My findings

25. The Council said it issued Y’s final amended EHC plan on 22 September, I find it did not issue it to Ms X until 27 September, which was a week later than the Tribunal ordered it to do so. This was fault.
26. The EHC plan included a personal budget for Ms X to arrange the provision for Y. The Tribunal order did not specify when the funding should be provided. The personal budget had to be arranged through the Council’s finance team in line with its usual process. The Council does not have a set time for doing this, but we would expect it would be done without delay.
27. Although the Council said funds were available on 1 November, I find funds were not provided until 23 November 2022. This was eight weeks after issuing the final amended EHC plan. Within this period, I find there was a three week delay in October in sending information to the finance team to set up the payment, and a further one week’s delay in November before making the first payment. This delay was fault.
28. As a result of these faults, there was an avoidable delay of four weeks in Ms X being able to arrange the provision for Y that was agreed at Tribunal. This affected Y’s wellbeing and caused Ms X frustration, and she was put to extra time and trouble pursuing the Council.
29. The Council confirmed the funds will be available until 31 August 2023. Ms X said this will not give her sufficient time to arrange additional provision to make up for that missed in late November, and the Council agreed to pay her the balance at that point, which will ensure Y has had all the funding he was entitled to in the academic year 2022-3. In addition, it will make a symbolic payment to recognise the injustice to Y of the delay in providing the sensory equipment for Y.
30. The Council has already apologised for its delay in its complaint response, which appropriately remedies the frustration Ms X experienced and the additional time and trouble she was put to.

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Agreed action

31. Within one month of the date of the final decision, the Council will pay Ms X £150, for the benefit of Y, as a symbolic payment to reflect the delay in Y being provided with sensory equipment as a result of the Council’s delay in providing personal budget funds.
32. The Council has confirmed the funds will be available until 31 August 2023. In the event, Ms X is not able to use the funds by that date, the Council will pay her the balance so she can arrange additional provision for Y to make up for any provision missed in 2022-3. It will make the payment by the end of September.
33. The Council will provide us with evidence it has complied with the above actions.

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Final decision

I have completed my investigation. I have found fault causing personal injustice. I have recommended action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman