Summary: Mrs Y complains the Council failed to respond to her request for a personal budget to fund her daughter’s SEN provision. She also complains about delay in the Council’s responses to annual reviews. We find the Council did not respond to Mrs Y’s request, failed to notify Mrs Y of the outcome of the reviews within four weeks and then sent confusing and contradictory letters about its intention to amend her daughter's Education Health and Care Plan. This fault caused injustice which the Council will remedy with the actions listed at the end of this statement.

The complaint

1. Mrs Y complains about the Council’s handling of her daughter’s EHCP and SEN provision. She says Council has not finalised an EHCP since 2020, has failed to respond to a request for a personal budget and failed to arrange the necessary Occupational Therapy provision.

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The Ombudsman’s role and powers

2. 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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
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. 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

5. I discussed the complaint with Mrs Y and considered any information she provided.
6. I made enquiries of the Council and considered its response alongside the relevant law and guidance.
7. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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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What I found

What should happen

9. Children with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHCPs. The guidance is based on the ‘Children and Families Act’ 2014 and the SEN Regulations 2014.
11. The regulations state, “Where the local authority decides to amend the EHC plan following representations from the child’s parent or the young person, it must send the finalised EHC plan to:
1. the child’s parent or to the young person; 
2. the governing body, proprietor or principal of any school or other institution named in the EHC plan; and (c) to the responsible commissioning body 

as soon as practicable, and in any event within 8 weeks of the local authority sending a copy of the EHC plan in accordance with paragraph (2)(a)”.

12. Where an EHCP is amended, the following review must be held within 12 months of the date of issue of the original EHC plan or previous review (not 12 months from the date the amended EHC plan is issued)
13. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. 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 EHCP has been issued.
14. 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 EHCP 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).

Background of key events leading to the complaint

15. In August 2019 the Council issued a final EHCP for D. This said D will receive three visits per annum (one per term) from an Occupational Therapist (OT) for a minimum of 60 minutes, distributed according to D’s needs. The plan said visits included 1:1 reviews, discussions with teaching staff and parents.
16. D’s EHCP was annually reviewed in June 2020. As a result of the review, D’s school emailed OT services to pursue private and specialised sessions for D. The school said it intended to obtain funding from the Council but, in the meantime, it wanted a programme of the OT support available and a breakdown of cost.
17. The school emailed the local NHS Trust in July to chase up the request for private OT. Later that month the OT service assessed D and provided a report to the Council which recommended, “6 face to face sessions, including verbal strategies & programme sheets per term as required.”
18. The Council said, in its view, the OT report did not robustly online D’s clinical needs to justify the request for additional OT provision over and above what the Council already funded as per the 2019 EHCP.
19. On 3 August the Council wrote to Mrs Y confirming its intention to amend D’s EHCP following the June annual review.
20. Another annual review took place in June 2021. The Council acknowledged the previous request for additional OT should have been progressed and suggested one route would be to fund the provision by a personal budget.
21. The Council confirmed on 25 August 2021 that it would amend D’s EHCP without delay. There is no evidence the Council sent a letter to Mrs Y to confirm this.
22. The Council issued a draft amended EHCP on 2 February 2022. This did not propose any changes to the OT provision, despite the recommendation made in 2020. Instead, the draft plan said D would continue to receive one OT visit per term lasting a minimum of 60 minutes. However, the draft plan did include wording which said, “needs to be changed” and, “speak to Mum about this”.
23. On 17 March the Council wrote to Mrs Y to reverse its 2 February decision. It said the decision to amend D’s plan was made in error because changes need only be made when there is a significant change in the child’s needs. The Council said it would review D’s plan at the next key stage review in academic year five. It invited Mrs Y to appeal this decision if she disagreed.
24. The Council responded to Mrs Y’s complaint at stage two of the corporate complaints process on 24 March. In summary, this said:
• the Council did not meet statutory timescales after the annual review in June 2020. The Council acknowledged it made a decision eight weeks after the review, instead of four.
• the Council took eleven weeks to make a decision after the June 2021 review, and there is no evidence to show the Council sent a copy to Mrs Y.
• the Council accepts there was a clear request for additional OT which it should have processed following the June 2020 review. Therefore, D’s case was not presented to the SEND advisory panel and the Council did not make a decision about funding and provision.
• the 2021 annual review was not accompanied by an updated OT report.
• the Council agreed to contact Mrs Y to discuss any amendments to the draft EHCP, to contact the OT to seek an update on D’s current provision and to clarify whether they support the request for additional support. The Council also agreed to discuss Mrs Y’s request for a personal budget.
• the Council apologised to Mrs Y for the failings because it is clear the service had sometimes fallen significantly short of the Council’s expected standards.
25. The Council upheld Mrs Y’s complaint and agreed to:
• arrange refresher training for relevant managers regarding ‘robust complaint investigation’.
• revisit and further develop inductions for new staff and regularly deliver refresher training for existing staff. This is to ensure that roles and responsibilities are clear, especially regarding the use of personal budgets.
26. The Council wrote to Mrs Y on 25 May confirming its decision not to amend D’s EHCP. It provided Mrs Y with her right of appeal. The following day, Mrs Y queried this by email and the Council responded some days later to confirm it had issued the letter in error and would contact Mrs Y again to notify her of the Council’s intentions regarding D’s EHCP.
27. Despite the assurances made, Mrs Y says the Council did not confirm its intentions. Dissatisfied with the lack of action, Mrs Y approached the LGSCO.

Was there fault by the Council

28. The Council upheld Mrs Y’s complaint and acknowledged there was fault in the way it handled D’s case. I will summarise the fault here:
• the 2020 review recommended changes to D’s provision which were not considered by the Council. If actioned, D may have received OT provision every half term from September 2021 instead of once each term, as recommended by the 29 July 2020 OT report. The Council accepted there was no evidence to show the request for OT was followed up, either with the school or the NHS Trust, nor was D’s case referred to the Council’s advisory panel.
• the Council did not meet its statutory duty to notify Mrs Y of the outcome within four weeks of the June 2020 and July 2021 reviews.
• the Council told Mrs Y in August 2021 that it would amend D’s EHCP. However, it then reversed its decision in March 2022 confirming that D’s plan would not be amended. The Council provided conflicting information when it responded to Mrs Y’s complaint later that month, which indicated that D’s plan was being amended. The Council then issued another letter in May confirming no amendments were to be made. The Council then reversed this decision and confirmed it did intend to amend D’s plan.

Did the fault cause injustice to Mrs Y and D

29. The fault caused injustice to both Mrs Y and D. This is because the delay in issuing the decisions caused time and trouble and frustrated Mrs Y’s right of appeal, which the Council will remedy with the actions in the section below. The Council then caused further confusion by reversing decisions on more than one occasion, contrary to what it had previously said in its complaint response.
30. The primary injustice is the Council’s longstanding failure to follow up with the recommendation to increase D’s OT provision in school. Although there were some concerns about the strength of the OT’s recommendations in the July 2020 report, there was a missed opportunity by the Council to put the recommendation to the advisory panel and for the Council to formally consider the request. Therefore, we cannot say with certainty how much additional OT provision - if any - the Council would have agreed in 2020 because the Council failed to follow up with a draft EHCP to outline the changes. This has caused avoidable uncertainty for Mrs Y and D.
31. We asked the Council how much OT provision D has received since the end of the 2020 academic year. In response to our enquiries, the Council said D has received all therapies outlined in the current EHCP during the past year and a half. The Council says it has funded eight OT sessions since 2020, with a further session to be delivered this academic term. Based on this, we have not recommended any remedy for missed provision as the Council has delivered the provision in D’s plan; albeit a plan which has not been subject to proper review since 2020.

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Agreed action

32. Within four weeks of our final decision, the Council will:
• Apologise to Mrs Y for the faults identified in this statement and pay £300 in recognition of the injustice caused by the frustrated appeal rights;
• Write to Mrs Y confirming the outcome of her request for a personal budget; and
• Clarify, in writing, whether it intends to amend D’s EHCP. The LGSCO cannot stipulate whether additional provision is needed; this is for the Council to decide. However, if the Council decides that D needs additional OT, it will backdate the extra OT provision to cover the period of delay. This is to ensure that D is allocated additional OT sessions to put her back in the position she would have been, were it not for the delay identified.

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Final decision

33. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions listed above will provide an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman