London Borough of Lambeth (18 005 522)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 11 Feb 2019

The Ombudsman's final decision:

Summary: Mrs F complains the Council delayed issuing an amended Education Health and Care Plan for her son, and delayed responding to her complaint. The Ombudsman has found fault causing injustice. The Council has agreed to apologise and make a payment to Mrs F.

The complaint

  1. Mrs F complains the Council delayed issuing an amended Education Health and Care Plan for her son, following his annual review. She also complains the Council did not respond to her complaint about the matter.

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The Ombudsman’s role and powers

  1. 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)
  2. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  3. If we are satisfied with a council’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

  1. I spoke to Mrs F about her complaint and considered the Council’s response to my enquiries and:
    • The Children and Families Act 2014
    • The special educational needs and disability regulations 2014
    • The special educational needs and disability code of practice: 0 to 25 years 2015 ("The Code")
  2. I gave Mrs F and the Council an opportunity to comment on my draft decision.

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What I found

  1. A child with special educational needs (SEN) may have an Education, Health and Care Plan (EHC Plan). The EHC Plan sets out the child's needs and what arrangements should be made to meet them. The Council is responsible for making sure that all the arrangements specified in the EHC Plan are put in place. Lambeth has a SEN Panel which identifies and allocates appropriate support.
  2. The Ombudsman cannot look at complaints about what is in the EHC Plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
  3. Parents may appeal to SEND against the provision specified in a EHC Plan, including the named placement, or the failure to name a placement. The Ombudsman cannot change a EHC Plan; only SEND can do that.

Annual reviews

  1. The annual review of an EHC Plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the EHC Plan. Schools are responsible for convening a review. The Code says a council SEN officer must attend the review when requested to do so.
  2. Following the review the school must send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan.
  3. The Code says that within four weeks of the review, the council must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan. It must then tell the child’s parent and the school its decision.
  4. If the plan needs to be amended, the council should start the process without delay. It must send the child’s parent 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. The parent must be given at least 15 calendar days to comment on the proposed changes.
  5. If the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the original amendment notice (i.e. 12 weeks after the review). However, these timescales do not apply if the council requests information (such as a professional assessment) as part of the EHC plan process.

Professional assessments

  1. In order to complete an EHC needs assessment the council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist, social care, anyone else the council considers appropriate and from any person the child's parent reasonably requests.
  2. The council does not have to seek advice or assessment where an assessment has been carried out recently and if the parent, school and relevant experts agree the findings are sufficient for an EHC Plan. The Code says advice and information requested by the council must be provided within six weeks of the request.

What happened

  1. Mrs F’s son, J, has a diagnosis of autism and developmental delay. He has an Education Health and Care Plan (EHC Plan) and is in primary school. Following a successful appeal to the SEND tribunal, J started at School 1 and an EHC plan was issued in October 2016.
  2. There was an annual review of J’s EHC Plan on 18 December 2017. The SEN officer was unable to attend. The Council says it had suggested an alternative date but this was not suitable as it was the last day of term.
  3. The Council asked School 1 for a copy of the annual review report on 17 January 2017; School 1 sent this on 25 January 2017. The review amended the outcomes J was to achieve and recommended a new speech and language therapy assessment.
  4. The evidence I have seen shows no action was taken until March 2017, as the SEN officer was absent.
  5. The request for a Speech and Language assessment was agreed by the Council’s SEN Panel on 15 May 2018. Mrs F says she also asked for a an education psychology assessment as the last one had been done in 2015. The Council says this request was not part of the annual review and therefore not considered.
  6. Mrs F complained to the Council on 8 June 2018 that the EHC plan had not yet been amended and the existing one “was no longer working” for J. She said the officer had told her J’s case would be considered at the Panel but, despite chasing, she had heard nothing.
  7. On 18 June 2018 the Council asked School 1 for more information about the progress J was making, the outcomes he should be achieving, and the amendments needed to the EHC plan.
  8. The Council wrote to Mrs F on 26 June 2018 to say no changes were needed to the EHC Plan. It accepts this was an error. Mrs F approached the Ombudsman but it was too soon for us to consider her complaint.
  9. School 1 responded to the Council on 18 July 2018. The Council then requested further information, including a SALT review. The school sent this information on 3rd October 2018.
  10. An amended proposed EHC Plan was issued on 11 October 2018, it then responded to Mrs F’s complaint. It apologised the matter had taken some time to resolve. It said this was because it had requested further annual review documentation and a SALT report.

My findings

  1. The Council has accepted there were delays in issuing the amended EHC plan and has apologised. It says the delay was caused by the need to seek further information and a SALT review.
  2. Following the annual review on 18 December 2017, the Council should have written to Mrs F on 15 January with its decision whether to amend the EHC plan. It sent this letter on 26 June 2018, a 22 week delay. This is fault.
  3. The Council has also accepted it wrongly sent a letter saying the EHC plan was not to be amended.
  4. The final amended EHC Plan should have been issued on 23 April 2018. This is eight weeks after the amendment letter should have been sent, plus a further six weeks to enable a SALT report to be compiled. The final amended EHC plan was issued on 11 October 2018, a 25 week delay. This is fault.
  5. The Council was seeking further information from School 1, but I have seen no evidence the Council started to amend the EHC plan before June 2018. This is fault.
  6. The Council has accepted its response to Mrs F’s complaint was delayed by 14 weeks. This is fault.

Has the fault caused injustice?

  1. I have looked at whether the delay in issuing the final amended EHC plan has caused injustice to Mrs F and J.
  2. The Council says J did not miss out on any support during the period because he was receiving appropriate provision at School 1 under his existing EHC plan. On the evidence I have seen, I agree. The amended EHC plan contains new outcomes and targets, but the provision remains the same. There is no injustice to J, therefore, as he continuing to receive appropriate support.
  3. The delay in issuing the final EHC Plan has caused uncertainty and time and trouble for Mrs F. She has had to spend time from January 2017 to October 2017 chasing the plan and complaining to the Council and the Ombudsman. This is her injustice.

Agreed action

  1. To remedy the injustice caused to Mrs F, the Council has agreed to apologise to Mrs F and pay her £100 to acknowledge the time and trouble caused within a month of my final decision.

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Final decision

  1. There was fault causing injustice when the Council delayed issuing a final amended EHC Plan following J’s annual review, and delayed responding to Mrs F’s complaint.
  2. The Council’s agreement to the recommended actions remedies the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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