Summary: Mrs X complained the Council delayed issuing an Education, Health and Care Plan for her daughter. She also complained the Council did not provide adequate provision while it reviewed the plan, delayed paying invoices and delayed providing a personal budget. Mrs X says the Council’s actions caused avoidable distress and prevented her daughter from accessing education. We found fault by the Council. The Council has agreed to provide an apology and a financial remedy, and to provide evidence of the steps it is taking to improve its service.

The complaint

1. Mrs X complained the Council delayed issuing an Education, Health and Care Plan for her daughter. She also complained the Council did not provide adequate provision while it reviewed the plan, delayed paying invoices, and delayed providing a personal budget. Mrs X says the Council’s actions prevented her daughter from accessing education, meant she was not able to mix with her friends and peers, and caused avoidable distress to the family. She would like the Council to agree suitable provision and support for her daughter.

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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(i), 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 discussed the complaint with Mrs X and considered the information she provided.
6. I made enquiries to the Council and considered the information it provided.
7. Mrs X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child or young person’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. 
9. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan; a decision not to amend an EHC Plan following a review or reassessment;
• and a decision to cease to maintain an EHC Plan.

Reviewing EHC Plans

10. 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 take place. The process is only complete when the council issues a decision about the review.
11. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code of Practice paragraph 9.176) 
12. 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 of Practice paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
13. Council’s must issue any final amended EHC Plan within eight weeks of the amendment notice. Therefore, councils must issue a final EHC Plan within 12 weeks of the review meeting.
14. 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

15. 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.

What happened

16. This chronology includes key events in this case and does not cover everything that happened.
17. In August 2021, the Council issued an EHC Plan to Mrs X’s daughter, Y. The plan set out the provision to be made to Y while she attended post-16 education at college, (College A).
18. In February 2023, the Council carried out an annual review of Y’s EHC Plan.
19. On 12 May 2023, Mrs X complained to the Council about its communication with her following the annual review. She complained the Council had not made a decision about the EHC Plan and said any delay in the process frustrated Y’s right of appeal.
20. In late May 2023, the Council told Mrs X it had agreed to amend Y’s EHC Plan.
21. The Council issued a draft amended EHC Plan to Y in early June 2023.
22. In mid-June 2023, the Council issued its initial complaint response. It apologised for the delay and said the Council was undergoing structural changes.
23. That same month, Y’s attendance at College A ended.
24. Mrs X asked the Council to escalate her complaint in July 2023. She said the turnaround for Y’s EHC Plan should have been four weeks; she asked the Council to approve the EHC Plan by the following week.
25. The Council issued a further draft amended EHC Plan in late July 2023, and another in early August 2023. The Council says at this time, it issued a consultation request to another college, College B.
26. The Council says College B notified it in September 2023 that it was not running the course requested by Y, due to insufficient interest. The Council says Y applied for another course at a different college, College C, at about this time.
27. College B told the Council in October 2023 it was holding a meeting to discuss if it could meet Y’s needs. The Council says College B invited Y to apply for a course in September 2024.
28. The Council provided its final complaint response in October 2023. It acknowledged the delay in notifying Mrs X about its decision to amend the EHC Plan, and the delay in issuing a final EHC Plan. The Council apologised and said the delay was exacerbated by several issues, including attempts to secure a suitable offer of placement. It said it would continue to work with Mrs X and Y to resolve the outstanding matters urgently.

What happened next

29. Y contacted the Council in January 2024 to ask for an update. The Council replied and said Y would need to apply to a college. It said it was working on a draft EHC Plan and was waiting to hear from another college, College D. Y responded and said the situation was having knock on effects; she asked the Council to chase a response from College D.
30. The Council issued a further draft EHC Plan in February 2024.
31. That same month, Y started attending a charitable organisation, (Organisation E), which provides farm activities for disabled young people. Y’s placement at Organisation E was funded by the Council.
32. Mrs X complained to the Council in late February 2024 about several issues, including a lack of communication from the Council’s Special Educational Needs and Disabilities (SEND) team.
33. The Council provided its response in March 2024. It said the SEND team were determined to maintain dialogue with Mrs X and Y; it said it did not uphold the complaint.
34. Mrs X emailed the Council in April 2024. She said the Council had not paid Organisation E and had therefore prevented her from attending. Mrs X also said the Council had not set up a personal budget on time and this had prevented Y from attending a separate training course. Mrs X said the Council had not provided the provision as set out in the EHC Plan, and said Y required alternative provision for the following academic year.
35. The Council issued its final complaint response in May 2024. The Council set out the actions it had taken when considering the educational provision for Y, and its actions regarding the draft EHC Plans. The Council apologised for the impact of the delays in making payment to Organisation E, and in delays relating to payment for taxis so Y could attend Organisation E. The Council acknowledged Mrs X’s request for alternative provision and said once it had held the annual review, it would present the case to its SEND panel for a decision.
36. The Council upheld the complaint that Y did not have appropriate provision in place and acknowledged Y had not had access to the full entitlement of her post-16 education. As a resolution, the Council offered a financial remedy to address the injustice caused. The financial remedy offered took into account Y’s missed provision from September 2023 to January 2024, and partial provision from February to June 2024. It also took into account a payment to recognise the distress caused, as well as the time and trouble to Mrs X and Y.
37. Mrs X remained dissatisfied with the Council’s response and brought the complaint to us.

Following the complaint response

38. The Council held an annual review of the EHC Plan in late May 2024 and issued an updated draft EHC Plan in July 2024.
39. Mrs X says the Council issued a final EHC Plan in September 2024.

Analysis – delays in the EHC Plan process

40. Mrs X complained the Council delayed issuing an EHC Plan to Y. I have reviewed the information provided by both the Council and Mrs X and consider there are several delays in the Council’s handling of Y’s EHC Plan.
41. The Council carried out an annual review of Y’s EHC Plan in February 2023. The EHC Plan issued prior to this review was dated August 2021. As a result, the Council should have carried out a review of this plan by August 2022; this is because councils must complete a review of EHC Plans within 12 months of the date of issuance. The Council did not review the August 2021 EHC Plan until February 2023. This delay in carrying out an annual review is fault.
42. The Code of Practice says councils must provide notification of their decisions within four weeks of the review date. Therefore, the Council should have notified Mrs X or Y of its decision to amend the EHC Plan within four weeks of the review carried out in February 2023. The Council did not notify Mrs X or Y of its decision until late May 2023, more than four weeks after the annual review. This delay in notifying Mrs X and Y is fault.
43. Following the annual review held in February 2023, the Council should have issued a final EHC Plan within 12 weeks of the date of the review. As part of my enquiries, I asked the Council to provide copies of the draft and final EHC Plans issued to Y. I have seen the draft plans issued following the annual review held in February 2023, but have seen no evidence the Council issued a final plan; in addition, Mrs X says the Council did not provide a final EHC Plan. The Council’s failure to issue a final EHC Plan within 12 weeks of the annual review in February 2023, and indeed, it’s failure to provide Y with a final EHC Plan at all following this review, is fault.
44. The Council carried out a further review of Y’s EHC Plan in May 2024. The timescales as set out in the Code of Practice required the Council to issue a final EHC Plan within 12 weeks of this date, therefore, by mid-August 2024.
45. Mrs X says the Council issued the final EHC Plan in September 2024, (after the draft of this decision statement was issued). The delay in issuing the final EHC Plan is fault.

Provision made to Y

46. Mrs X complained the Council did not provide adequate provision to Y while it reviewed the EHC Plan. She says Y received no provision from June 2023, (when she stopped attending College A), until February 2024, (when she started attending Organisation E).
47. As previously stated, councils have a duty to make sure the child or young person receives the special educational provision set out in section F of their EHC Plan (Section 42 Children and Families Act). In its complaint response, the Council upheld Mrs X’s complaint and acknowledged it did not make appropriate provision to Y; as a result, the Council offered a financial remedy to address the injustice caused.
48. In its response to my enquiries, the Council said it is evident there have been significant shortcomings by the Council in addressing Y’s educational needs. It says the Council understands its duties under the Children and Families Act 2014, and regrets that it failed to secure a suitable placement for Y. The Council re-iterated its offer of a financial remedy to address the missed provision for Y.
49. Whilst I acknowledge the Council’s comments and agree with its findings regarding the missed provision for Y, its failure to make the provision as set out in Y’s EHC Plan is fault.

Delayed payment

50. Mrs X says the Council delayed paying invoices to Organisation E and delayed arranging payment of taxis to enable Y to attend Organisation E. She says Y was unable to attend for several weeks because of these unpaid costs.
51. The Council acknowledged ‘difficulties with the payment of invoices’ in its response to Mrs X. In its response to my enquiries, the Council apologised for delays in making payment regarding Y’s attendance at Organisation E, and for the impact this had on Y.
52. Whilst I acknowledge the Council’s comments relating to its delayed payments regarding Y’s attendance at Organisation E, the delay incurred is fault.

Injustice caused

53. Having identified fault, I must consider if this caused a personal injustice to Y. The injustice is the distress and uncertainty caused by the delays in the EHC Plan process, including uncertainty as to whether the Council may have secured provision for Y sooner had it adhered to the statutory timeframes as set out in the Code of Practice.
54. Mrs X says Y missed out on education with her peers as a result of the delays. I acknowledge Mrs X’s comments and acknowledge the injustice to Y is also the distress caused by the missed or reduced provision previously referred to.
55. The injustice is also the distress caused by the delays in the Council arranging payment relating to Y’s attendance at Organisation E; Mrs X says Y was unable to attend for some time due to the delays incurred by the Council.
56. The delays in the EHC Plan process also significantly delayed Y’s right of appeal to the tribunal; in the case of the annual review held in February 2023, the Council did not issue a final EHC Plan at all, thereby depriving Y of the appeal right altogether. This is a significant personal injustice to Y.

Actions taken by the Council

57. In its complaint response to Mrs X, the Council said it is developing new processes to meet timeliness for processing EHC Plans. As part of my enquiries, I asked the Council to provide further detail regarding these processes.
58. The Council says it remodelled its SEND assessment service in preparation for a full-service redesign which is due to take effect from September 2024. It says this includes the recruitment of additional staff, the restructure of its assessment and review teams and the implementation of a dedicated tribunal team. The Council says it is providing ongoing training to all officers in the SEND service and has also purchased IT software to assist in its management of its SEND service.
59. The Council says it acknowledges its failure to adhere to the required timeframes and says the lack of provision provided to Y between September 2023 and January 2024 is unacceptable. It apologises for the inconvenience, frustration and disappointment caused and says it is actively addressing the underlying issues in its processes. It says it is also implementing new measures to prevent similar occurrences in the future. The Council has reiterated its offer of a financial remedy as set out in its complaint response to Mrs X.
60. It is positive the Council has itself identified some of the fault as set out in this decision statement; however, the Council’s response does not address the full extent of the fault identified, and the resulting injustice to Y.
61. I have carefully considered the financial remedy offered by the Council in its response to Mrs X’s complaint, and in response to my enquiries. The amount offered to acknowledge the missed and partial provision to Y is in line with our published guidance on remedies; this is an appropriate figure. However, the remaining financial remedy offered by the Council does not fully address the injustice caused as a result of the fault identified.

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Agreed action

62. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide a further apology to Mrs X and Y. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
2. Issue the final Education, Health and Care Plan to Y and provide an explanation of Y’s right of appeal to the tribunal. Mrs X says she has received the final Education, Health and Care Plan following receipt of the draft of this decision statement;
3. Make a symbolic payment of £2,377.50 to Y in recognition of the missed and partial provision. This is the same amount as suggested by the Council;
4. Make a further symbolic payment of £500 to Y in recognition of the distress and uncertainty caused by the delays in the Education, Health and Care Plan process;
5. Make a further symbolic payment of £350 to Y in recognition of the time and trouble and inconvenience caused by the delay in arranging payment relating to Y’s attendance at Organisation E, and
6. Create an action plan to demonstrate how the Council will implement the steps it has taken to improve its Special Educational Needs and Disability service.
63. The Council has agreed to take the following further action within three months of the final decision:
1. Provide evidence of how the Council is monitoring the impact of the changes made to its Special Educational Needs and Disability service.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman