Summary: Ms X complained about how the Council reviewed her son, Z’s Education, Health and Care (EHC) Plan and how it secured the provision in Z’s EHC Plan between April 2022 and April 2023. We found the Council failed to ensure all the provision was secured for Z. The Council will apologise to Ms X and make a payment to recognise the frustration caused to her and the provision Z did not receive.

The complaint

1. Ms X complained the Council:
1. failed to meet her child’s special educational needs with the education it provided between April 2022 and April 2023;
2. failed to secure all the provision in Z’s EHC Plan;
3. failed to provide her with enough support to manage her child’s personal budget for his EOTAS; and
4. delayed in carrying out an educational psychology assessment.
2. Ms X stated this caused Z to miss out on the provision he was entitled to and impacted his wellbeing and affected all members of the family. Ms X wanted the Council to recognise the impact on the whole family and to provide a financial payment.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. 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

9. I considered the information provided by Ms X.
10. I read the documents provided by the Council in response to our enquiries.
11. 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

Law and guidance

Education, Health and Care (EHC) Plans

12. 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 EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
13. A young person with special educational needs may have an EHC Plan. The Plan sets out their needs and what arrangements should be made to meet them. The EHC Plan is set out in sections which the special educational provision needed by the child or the young person (section F), and the name and/or type of school (section I).

Annual reviews of EHC Plans

14. The Code states EHC Plans must be reviewed as a minimum every 12 months.
15. 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.
16. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code, paragraph 9.196)
17. There is a right of appeal to the SEND Tribunal about the content of a final EHC Plan. 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 EHC Plan has been issued.

Re-assessment of EHC Plans

18. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
19. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.
20. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Provision

21. Section 61 of the Children and Families Act allows councils to arrange for special educational provision to be made otherwise than in a school (EOTAS). A council can only agree to EOTAS if it is satisfied it would be inappropriate for the provision to be made in a school.
22. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Personal budgets

23. The Special Educational Needs (Personal Budgets) Regulations 2014 sets out that a personal budget is a notional amount of money that would be needed to cover the cost of making the provision specified in someone’s EHC Plan. A council can consider making a direct payment to the parent, or other nominated person, from the personal budget so they can organise the provision or parts of the provision themselves.
24. A council’s must provide information on personal budgets as part of its information offer, including organisations that can give advice and assistance. It must also provide clear and simple statements of eligibility criteria. (SEN Code, paragraph 9.97 and Personal Budgets Regulations, paragraph 3)
25. A parent can request a council prepares a personal budget either when the council has decided it will issue an EHC Plan, or during the annual review process of an existing EHC Plan. The council must prepare a personal budget if asked to do so. The parent can then request a direct payment.
26. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.  

What happened

27. This section sets out the key events in this case and is not intended to be a detailed chronology.
28. Z has a neurodevelopmental condition and anxiety and has an EHC Plan that sets out the special educational provision he needs. In February 2022 Z was attending School A (an independent special school) which was named in his Plan. Z’s Plan set out the provision he needed. It included:

• two hours of speech and language therapy (SALT) per week to support his social communication and language difficulties;
• weekly one-to-one occupational therapy (OT) sessions to support his emotional regulation;
• one-to-one support in school and two-to-one if in the community; and
• highly trained and experienced teaching and support staff.

29. A review of Z’s Plan was held on 1 February 2022 as his attendance had significantly dropped. School A was working on reintegrating Z to school following advice from a clinical psychologist, which had been partially successful. It was providing a weekly outdoor education session with a trusted adult with the aim to increase over time. The review recorded Z had previously refused learning at home and struggled to form relationships with new people. It said Z was not currently able to access the therapists or OT programmes at School A.
30. On 5 May 2022 the Council sent Ms X a draft amended EHC Plan for her comments. Ms X commented on the proposed draft EHC Plan.
31. The Council said that in May, School A increased the number of outdoor sessions it was completing with Z every week, and introduced a weekly session of play therapy that had been recommended by the clinical psychologist.
32. The Council issued a final, amended EHC Plan for Z on 22 September 2022, almost five months after the annual review meeting. The provision remained the same and it continued to name School A, which was still Ms X’s preference at that time. The Council told Ms X of her right to mediation and then appeal to the SEND tribunal if she disagreed with the content of the Plan. Ms X did not appeal the Plan.
33. Around three weeks later School A informed the Council it had stopped the outdoor sessions and intended to take Z off its roll in December. It said changes in Z’s behaviour meant it could no longer meet his needs. The one hour a week play therapy session continued.
34. Ms X decided an EOTAS package would be best for Z and asked the Council for support in arranging it. The Council sent Ms X an information leaflet explaining personal budgets.
35. An EHC Plan review meeting was held on 11 December 2022. The record of the meeting showed Ms X had made a direct payment plan setting out the provisions she felt would meet Z’s needs. Ms X requested EOTAS was specified on Z’s Plan.
36. The Council considered Ms X’s EOTAS request on 4 January 2023. It considered Ms X’s direct payment proposal, the clinical psychologist’s recommendations, Z’s previous EHC Plan and the two most recent reviews of his Plan. The Council decided that Z’s should be reassessed by an educational psychologist (EP) and his Plan updated to understand what support he may need to reintegrate to a school. It said previous significant efforts by School A to provide a suitable home-based education package had very limited success and so it was likely a personal budget would not be suitable. It said in the meantime Z was without a school placement and so it would provide an alternative education.
37. Ms X asked if Z could continue with the tutor she had already arranged and was making progress with, rather than starting again with a new professional. The Council agreed to the tutor and play therapy from 16 January 2023 while waiting the EP assessment. It requested the EP assessment on 19 January.
38. The Council said that between January and July 2023 Z received 24 hrs per week tutoring and 1 hour per week play therapy, 25 hours in total.
39. The Council sent a draft amended EHC Plan to Ms X for her comments on 31 January 2023. On the same day, Ms X provided comments on the draft. She said she disagreed with the proposed Plan and again asked for a direct payment to be put in place. She requested a meeting to discuss the draft.
40. After further discussions with Ms X the Council issued a second draft EHC Plan on 17 March 2023 and a third on 20 June 2023 for Ms X’s comments. It did not finalise any of those drafts.
41. Z was assessed by an EP in April who provided their report to the Council at the beginning of May 2023. The Council issued a final EHC Plan for Z on 13 July 2023. It said it was not appropriate for Z’s SEN provision to be provided in a school and named an EOTAS package with a personal budget. The Council told Ms X of her right to mediation and to appeal to the SEND tribunal if she disagreed with the content of the Plan.
42. In response to our enquiries the Council said it did not take any action to arrange the OT and SALT provision for Z until June 2023, when it began to make enquiries with providers.

Ms X’s complaints to the Council

43. Ms X complained in November 2022 that Z would be without provision at the end of December and the Council had not taken action or told her if the personal budget would be approved.
44. The Council responded to Ms X’s in January 2023 and said it had provided information on personal budgets but could not agree to provide payment before it had received a request, and Z received tutoring from the second week of January.
45. Ms X asked the Council to escalate her complaint.
46. Ms X complained to the Council in February 2023 about the delay in the EP assessment. She said the law was clear professionals should respond to the Council as part of an EHC needs assessments within six weeks.
47. The Council responded and said the six-week timescale for assessments only applied to initial EHC needs assessments. As Z had an existing EHC Plan the timescale for the EP assessment did not apply. It said high demand for EPs had resulted in a backlog and it had recently recruited private EPs which had increased its capacity to complete assessments. The Council apologised for the unavoidable delay. Ms X escalated her complaint and the Council responded but still did not uphold the complaint.
48. In March 2023 the Council responded to Ms X’s first complaint at stage two of its complaint procedure. It said it should have considered Ms X’s request for a personal budget and told her the amount before she made her request for direct payment. It said its communication about the matter was insufficient and so Ms X prepared a document which it then did not agree, and it apologised.
49. Ms X complained to the Ombudsman in April 2023.

My findings

Suitable education

50. The Council reviewed the provision that was in place for Z during the annual review process from February 2022. It considered the available information and decided the provision and named placement was suitable. It issued an amended EHC Plan to that effect and provided Ms X with her right of appeal if she disagreed with the suitability of the provision or the placement. It was reasonable for Ms X to appeal to the SEND Tribunal if she disagreed with the provision or named placement that was set out in Z’s Plan. Therefore, in line with the legislation set out at paragraph 6 I have not considered this matter further.
51. The Council should have issued an amended Plan within 12 weeks of the review meeting on 1 February 2022, so by the 24 April. The Council did not issue the Plan until 22 September, which was a delay of 17 weeks and was fault. However, I do not find the fault caused an injustice as the provision and placement in the EHC Plan remained the same and Ms X did not appeal its content.
52. I have considered the period from October 2022 onwards below.

Securing the provision in Z’s EHC Plan

53. Between April 2022 and October 2022 the Council secured the provision in Z’s Plan for him at School A. The Council considered all the relevant information and decided the provision was secured for Z, and continued to name School A in Z’s Plan. There is no evidence of fault in how it made that decision and so I cannot question the outcome, as set out in paragraph 4.
54. The Council became aware the reintegration programme had failed and School A could no longer meet Z’s needs in October 2022. It should have reconsidered the provision available to Z. It delayed in doing so until December 2022 and did not take action to secure alternative provision until January 2023. During that time Z only received one hour a week of play therapy. That was fault and meant that Z missed half a term of the provision in his Plan (October 2022 until January 2023).
55. In January 2023 the Council agreed to fund 24 hours of tuition a week and one hour of play therapy until it issued Z’s amended final EHC Plan in July 2023. This secured most of the provision in Z’s Plan, but there is no evidence the Council secured the OT and SALT provision for Z . This was fault and meant Z missed out on some of the provision in his Plan for a further two terms (January 2023 until July 2023).

Personal budget

56. The legislation states the Council is required to provide information on personal budgets, and on services that can provide advice and guidance. It must also provide a personal budget amount if asked to do so. The Council provided Ms X with the information about personal budgets. It did not provide her with the amount of personal budget when requested to do so. This caused Ms X uncertainty and frustration when she was trying to request a direct payment of the personal budget. The Council has already apologised for that matter, and I have made a further recommendation to remedy the uncertainty caused to Ms X.
57. The Council could not provide a response to Ms X’s request for a direct payment, until it produced an amended EHC Plan. I have considered the delay in the final amended Plan in paragraph 59.

EP assessment

58. At the review meeting in December 2022 Ms X requested an EOTAS package for Z. The legislation states the Council could only agree to EOTAS if it was inappropriate for the provision to be provided in a school. To satisfy itself on that point the Council decided it needed to complete a re-assessment of Z’s needs by obtaining an EP report. That was an appropriate action to take.
59. As it was conducting a re-assessment, the Council should have obtained the EP report within good time, so it could issue a final amended Plan within 14 weeks, and by 11 April 2023. Although it initially requested an assessment in January, it did not obtain the EP report until May and then took a further ten weeks to issue a final Plan after it received the EP report. The delay in obtaining the report, and issuing the subsequent final EHC Plan resulted in an overall delay of 13 weeks. That was fault and caused Ms X frustration and delayed her right of appeal to the SEND tribunal.
60. The Council stated the delay in obtaining the EP report was due to a high volume of assessments and shortage of EPs. It took appropriate steps to reduce the waiting time for an EP assessment, and so I have not recommended further service improvements.
61. The Council issued a final amended EHC Plan in July 2023 naming an EOTAS provision, and its decision to provide direct payments for a personal budget. Ms X received her right of appeal to the SEND tribunal if she disagreed with the content of the Plan and could have complained to the Council if she disagreed with its decision on the direct payments of personal budget.

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Agreed action

62. Within one month of the final decision the Council will:
1. Write to Ms X and apologise for the injustice caused by the faults identified.
2. Pay Ms X a symbolic amount of £500 to recognise the uncertainty and frustration caused to her by the Council’s failure to provide a personal budget amount when Ms X requested one and in its delay in issuing the final amended EHC Plan.
3. Pay Ms X £1000 to recognise the half term Z was without the provision in his Plan other than the play therapy. This is in line with our Guidance on Remedies, which is available on our website.
4. Pay Ms X £2000 to recognise the two terms Z was without the OT and SALT therapy specified in his Plan. This is calculated at £1000 per term and is in line with our Guidance on Remedies.
5. Remind relevant staff to commission specialist interventions such as OT and SALT for children at the earliest opportunity where there is a change of circumstances, to avoid loss of provision.
6. Remind relevant staff to adhere to the timescales set out in the statutory guidance when issuing its decision, draft or final amended EHC Plan after a review meeting.
63. The Council will provide us with evidence it has complied with the above actions.

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Final decision

64. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and to avoid the same fault occurring in the future.

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Investigator's decision on behalf of the Ombudsman