Summary: Miss X complained the Council failed to secure the provision set out in her son, Y’s, Education, Health and Care (EHC) Plan. Miss X also complained the Council failed to properly review Y’s EHC Plan or respond to her request for a personal budget. We find the Council at fault for failing to secure provision, not reviewing Y’s EHC Plan in time, and for how it considered Miss X’s personal budget request. We also find fault with the Council’s complaint handling. We recommend the Council apologise to Miss X, make a payment to recognise the injustice caused and act to prevent recurrence.

The complaint

1. Miss X complains the Council failed to complete Y’s EHC Plan review in line with statutory time limits or make a decision on the provision of a personal budget. Miss X says the Council failed to secure provision for Y from October 2020 and it has not handled her complaint in line with its published standards.

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What I have and have not investigated

2. I have investigated the complaints above, but I have limited my investigation as explained below.
3. We cannot investigate complaints brought to us more than 12 months after the complainant ought to have been aware of reason to complain. We can only exercise discretion if there are good reasons to do so.
4. Miss X contacted the Ombudsman in November 2022, meaning events that took place before November 2021 have been brought to us late.
5. However, Y’s EHC Plan review started in March 2021 and the Council missed the deadline to finalise this by August 2021. While Miss X did not contact the Ombudsman within 12 months of things going wrong, any potential fault and injustice was ongoing until the Council issued the final EHC Plan in April 2022. This being the case, I find it is reasonable to exercise discretion to investigate matters from March 2021.
6. Any mention below of events that took place before March 2021 are for reference only.

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The Ombudsman’s role and powers

7. 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)
8. 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)
9. 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.
10. 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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How I considered this complaint

11. I spoke to Miss X about her complaint and considered information she provided. I also considered information received from the Council.
12. Miss 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

13. A child with special educational needs (SEN) may have an 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.
14. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (the Code) sets out the process for EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
15. The Code says councils must review EHC Plans at least annually. Within four weeks of the review meeting, the council must decide whether it will keep the plan as it is or amend it and notify the child’s parents and the school. If the council decides to amend the plan, it must start this process without delay and send the parents a draft EHC Plan, allowing them at least 15 days to provide their views. The council does not need to agree to any suggested changes but must issue a final EHC Plan within eight weeks of issuing an amendment notice. It must also notify the child’s parents of their right to appeal to the Tribunal and the time limit for doing so.
16. Councils have a duty to secure the named special educational provision in an EHC Plan for a child or young person. The Courts have said councils owe the duty to arrange provision personally to the child and this is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Personal budgets

17. A personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC Plan where the parent or young person is involved in securing that provision.
18. Parents and young people can request a personal budget when the draft EHC Plan is being prepared, reviewed or re-assessed. The Code says councils must provide information about organisations that may be able to provide advice and assistance to help parents and young people to make informed decisions about personal budgets.
19. Where a council decides not to make direct payments or provide a personal budget, it must tell the child’s parent its decision in writing, giving reasons. Parents have a right to request review of the decision. The Code says councils must consider any representations made and inform the parent in writing of the outcome of the review, giving reasons.

The Council’s complaint process

20. The Council operates a two-stage process for handling complaints.
21. At Stage 1, the Council will respond to the complaint within 20 working days. If a complainant remains unhappy, they can provide supporting evidence and ask the Council to review it at Stage 2. If the complaint progresses to Stage 2, the Council will provide a full and final response within 25 working days.

What happened

22. Y has SEN and his education is supported by an EHC Plan. In the School year 2020/21, Y was in year 10. Y’s EHC Plan named a school, and provided for a Speech and Language Therapy (SALT) assessment, and Educational Psychology (EP) assessment, and enhanced pupil: staff ratio. It also provided for 10 hours of tuition per week while Y was not attending school, which was to be funded by a personal budget.
23. However, Y never attended the school named on his EHC Plan. The school made home visits to Y in September 2020 and decided it could not meet his needs.
24. The Council reviewed Y’s EHC Plan on 21 May 2021. The Council agreed a school-based education was not suitable for Y and he should receive Education Otherwise Than At School (EOTAS). The Council agreed to amend Y’s plan and consider paying Miss X a personal budget to arrange his provision.
25. The Council missed the deadline to issue a draft EHC Plan on 18 June and the deadline to issue a final EHC Plan on 13 August.
26. On 16 September the Council agreed to pay Miss X £5,130 per year for three hours of tuition per week for Y while it completed the EHC Plan review. Up to this point, the Council had made no payments to Miss X to secure Y’s provision.
27. The Council sent a draft EHC Plan to Miss X on 20 September, more than 13 weeks later than the deadline to do so. Due to a period of ill health, Miss X asked for additional time to respond to this.
28. On 26 November, Miss X wrote to the Council with her comments on the draft EHC Plan. Miss X also explained the personal budget amount set out in the draft was not enough to pay for the named provision and included detail about what she thought it would cost.
29. On 6 December the Council acknowledged Miss X’s response and agreed to consider her request for an increased personal budget.
30. Miss X complained to the Council on 18 February 2022 (Complaint A). Miss X said the Council had missed statutory deadlines to finalise Y’s EHC Plan. She pointed out she had provided her comments on the draft in November 2021 and failure to finalise this meant she was unable to use her appeal rights. Miss X asked the Council to send the final amended plan to her as soon as possible.
31. The Council acknowledged Miss X’s complaint on 24 February and said it would respond to her within 20 working days, in line with its usual process.
32. Miss X complained to the Council again on 6 March (Complaint B). She explained Y was not currently on roll at any school, despite the provision in his EHC Plan being reliant on this, and the Council had failed to secure provision for him. Miss X explained the Council had agreed at the May 2021 EHC Plan review, now 10 months ago, that a school-based education was not suitable for Y but had failed to finalise his plan. Miss X asked the Council to confirm what steps it would now take to ensure Y’s EHC Plan was amended, and provision was met.
33. The Council sent Miss X another draft EHC Plan on 10 March. Miss X responded on 16 March to say the EHC Plan still needed to be amended and asked the Council to arrange a meeting to discuss this.
34. The Council responded to Miss X’s Complaint A on 30 March. The Council agreed the process of finalising Y’s EHC Plan was taking longer than expected but this was because it was effectively re-writing the plan. It said it was sorry for the delays.
35. On 7 April the Council issued Y’s final EHC Plan, around 34 weeks later than the deadline. The EHC Plan stated it was inappropriate for Y to attend school and provided for 10 hours of weekly mentoring with an adult. It said this would be funded by a personal budget and the Council was currently waiting for its Complex Needs panel to decide what this should amount to.
36. Miss X wrote to the Council on 21 April asking it to progress her Complaint A to stage two of its process. She explained the next annual review was due in three weeks, but she did not have confidence the Council would complete this in line with the statutory time limits. Miss X said the reasons the Council gave for the delay were unreasonable and there were long periods of inactivity on the Council’s side. Miss X pointed out the Council still had not agreed a personal budget, so provision was still not secured for Y and the Council had ignored her requests for a meeting to discuss the situation. Miss X also said she felt the EHC Plan missed crucial details and she was not happy with the provision or funding within it.
37. The Council wrote to Miss X on 18 May saying the annual review was not yet due. It said the anniversary for annual reviews falls on 31 August each year. It explained the personal budget was going to be discussed at the complex needs panel.
38. The Council responded to Miss X’s Complaint B on 8 August. It agreed Y had not received the provision set out in his EHC Plan. It explained the school remained named on the plan until new provision could be identified but temporary provision was made in the meantime.
39. Miss X wrote to the Council again on 17 August to explain she was still waiting for a personal budget to be agreed. Miss X explained she did not believe the Council would be in a position to complete a new draft EHC Plan by the deadline based on the recent annual review.
40. The Council responded to Miss X’s Complaint A at stage two on 25 August. It apologised for the delays in issuing a final EHC Plan and for the frustration caused to Miss X. It said the most recent annual review had been completed on time. It also said it was continuing to develop its SEN team to ensure plans are prioritised and would learn from this situation going forward.
41. Y’s next annual review took place on 30 August.
42. On 21 September, Miss X asked the Council to progress her Complaint B to stage two of its process. Miss X said the stage one response was late and the Council did not explain or apologise for this. She pointed out the Council had upheld her complaint but offered no real apology or acknowledgment of the injustice caused. Miss X also questioned what temporary provision was put in place and how this matched what was set out in Y’s EHC Plan.
43. The Council issued a revised stage two complaint response to Miss X’s Complaint A on 30 September. It apologised for the delay in issuing Y’s most recent EHC Plan and said this was down to capacity issues. It agreed the delay frustrated Miss X’s right to appeal. It agreed Y’s EHC Plan actually ought to have been reviewed by 21 May 2022 and apologised that this did not happen. It said this seemed to be down to a lack of understanding of the legislation.
44. The Council sent Miss X a draft EHC Plan on 19 October and Miss X returned comments soon after.
45. In November 2022 Miss X wrote to the Council asking for an update on the personal budget as this still had not been agreed. The Council responded to explain it would finalise Y’s personal budget once his new plan was finalised. Miss X told the Council the delays were unacceptable as Y was receiving inadequate provision while she had to wait for the personal budget to be agreed.
46. Miss X brought her complaint to the Ombudsman in November 2022.
47. The Council responded to Miss X’s Complaint B on 13 December. It explained the delays finalising Y’s EHC Plan was down to capacity issues and apologised for this. It also apologised for the delays in responding to Miss X’s complaint and the frustration and stress this had caused. The Council agreed it was not acceptable that Y had not received the provision set out in his February 2020 EHC Plan and acknowledged this would have had a real impact on his welfare. It agreed the Council should have put temporary provision in place where the named school could not and apologised this was not the case.
48. The Council issued a final EHC Plan for Y on 13 June 2023. This provided for a package of 10 hours tuition per week until July 2023. The Council also informed Miss X it had decided not to provide her with a personal budget but to pay a tutor provider directly.

Analysis

Alleged failure to secure provision

49. Y’s EHC Plan dated February 2020 provided for 10 hours of tuition a week while he was not attending school, to be funded through a personal budget. From March 2021 until September 2021 Y was out of school but the Council did not provide any personal budget for Miss X to arrange this provision. This is fault. As a result, Y did not receive the provision set out in his EHC Plan which is injustice.
50. From September 2021, the Council agreed a personal budget to cover three hours of tuition per week for Y. However, this fell considerably short of the 10 hours accounted for in his EHC Plan. This means the Council still had not secured the provision Y was entitled to, which is fault. As a consequence, Y did not receive the provision set out in his EHC Plan which is injustice.
51. A new EHC Plan was issued in April 2022 and also provided for 10 hours of tuition. However, the Council did not adjust the personal budget it was providing Miss X. This is fault. This meant Y continued to receive considerably less provision than he was entitled to, which is further injustice.
52. This went on until June 2023 when the Council issued a new EHC Plan for Y and secured provision by direct payments to a tutor. This means there was a period of six school terms where Y received reduced or no provision. This is fault. This period covered years 10 and 11 for Y, while he should have been studying for his GCSEs, but he was not able to do so, which is significant injustice.

Time taken to complete Y’s EHC Plan reviews

53. Y’s EHC Plan was reviewed on 21 May 2021. If the Council completed this in line with statutory time limits, Y’s EHC Plan would have been finalised by 13 August 2021 at the latest. However, the Council did not finalise Y’s EHC Plan until 7 April 2022. This is fault.
54. The delay caused uncertainty for Miss X and also meant she could not appeal the plan until seven months later than if it had been finalised on time. This is injustice.
55. The annual review of Y’s EHC Plan then fell due by 21 May 2022 at the latest, meaning it should have been completed by 13 August 2022. The Council did not review Y’s EHC Plan until 30 August 2022 and it did not issue a final plan until 13 June 2023, 10 months late. This is fault. The delay meant Miss X could not appeal the EHC Plan until 10 months late and Y continued not receiving the provision he was entitled to which is injustice.

Personal budget request

56. Miss X requested a personal budget to secure Y’s provision during the May 2021 annual review. The Council agreed to consider this but, despite Miss X regularly chasing it for an outcome, it never gave her a decision on this until June 2023. This is fault and caused stress and anxiety for Miss X as well as frustrating her attempts to secure provision for Y, which is injustice.

Complaint handling

57. The Council’s complaint responses all came outside of the timescales published on its website. While Miss X’s complaints were complex and submitted in multiple parts, I have seen no reason why the Council could not have responded in line with its usual timescales. Failure to do so is fault and this would have meant Miss X spent more time in the complaint process than necessary, which is injustice.
58. While the Council upheld Miss X’s complaints, its responses were vague, and no tangible resolutions were put in place. This is not good practice and would have added to Miss X’s distress about the situation as it presented no clear way forward or resolution for her.
59. In its responses, the Council accepted it had responsibility to ensure Y was receiving the provision set out in his EHC Plan but did not consider whether any remedy was due for missed provision. It also accepted delay in the EHC Plan process but did not consider any remedy for Miss X. Had it done so, Miss X may not have needed to escalate her complaint to the Ombudsman. This is fault and meant Miss X was put to additional time and trouble in the complaint process, which is injustice.

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Agreed action

60. To remedy the injustice identified above the Council should carry out the following actions:
61. Within one month:
• Provide Miss X with a written apology for the faults identified above
• Pay Miss X £500 to recognise the distress and uncertainty caused by the delays in reviewing Y’s EHC Plans
• Pay Miss X £150 to recognise the additional time and trouble she has been caused by the fault with the Council’s complaint handling
• Pay Miss X £7,200 for the benefit of Y’s education (this has been worked out at £1,200 per term from March 2021 until June 2023).
62. Within three months:
• Identify the reasons for failing to secure provision for Y and produce an action plan to demonstrate how the Council will address these going forward.
• Identify the reasons for the delays and produce an action plan to demonstrate how the Council will address these to meet statutory timescales for annual reviews going forward.
• Remind staff dealing with complaints of the importance of putting forward a remedy for any injustice identified during the complaints process.
63. The Council has agreed to these recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

64. I find fault with the Council for delays in reviewing Y’s EHC Plan, how it responded to Miss X’s personal budget request, failing to secure provision, and in how it responded to Miss X’s complaint. The Council accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman