Hampshire County Council (18 011 760)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 15 Feb 2019

The Ombudsman's final decision:

Summary: There was a two year delay by the Council in completing an annual review for a young person for whom it maintains an EHC Plan. This is unacceptable delay and is fault. This has caused uncertainty and additional time and trouble to the family. The young person may also have missed out on provision to develop their independence. The Council must now complete the review and provide a decision. Recommendations for an apology, financial payment and service improvements are also made.

The complaint

  1. The Representative, whom I shall refer to as Ms X, complains on her own behalf and on behalf of her child, whom I shall refer to as Y, that the Council to properly and promptly carry out annual reviews in 2017 and 2018. Y is a young adult who has special educational needs (SEN) and the Council maintains an Education, Health and Care (EHC) Plan for Y. Ms X also says communication with the SEN team is very poor.
  2. Ms X says the fault has caused injustice as:
    • Y’s EHC plan has not been updated and does not record all the provision Y receives including a personal budget / direct payments;
    • Y is aware that provision not recorded in an EHC plan could be withdrawn (as this had happened previously) and this makes Y anxious that the education provision is very fragile and fearful the budget could be withdrawn;
    • A request for additional provision (driving lessons) has not been responded to and Y is potentially missing out on this provision which would aid her independence;
    • It has led to Ms X incurring unnecessary time and trouble chasing the Council.
  3. Ms X also complains that the Council does not have a process for carrying out reviews for children and young people with EHC plans who do not attend school. Ms X says she organises the reviews herself as the Council always fails to do so. Ms X considers it likely other pupils Educated Otherwise than at School (EOTAS) may be being similarly failed by the Council.

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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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  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 have considered the Council’s response to Ms X’s complaint and I have spoken to Ms X by telephone.
  2. 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

  1. The Children and Families Act 2014 (‘The Act’), The SEN and Disabilities (SEND) Code of Practice: 0-25 years, 2015 (‘The Code’) and the SEND Regulations 2014 set out the duties of councils to children and young people in their area who have SEN.
  2. An EHC plan is a legal document setting out a child or young person’s needs for education, health and social care in one document. Where a Council has decided it is necessary to maintain an EHC plan for a child or young person the Council must review the plan, at a minimum, every 12 months. Reviews must focus on the young person’s progress towards achieving the outcomes in the Plan and must consider whether those outcomes and targets remain appropriate.
  3. Reviews must take into account the views and wishes of the young person and their parents, including their right to request a personal budget.
  4. The first review must take place within 12 months of the EHC plan being issued and then within 12 months of any previous review. The Council’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or the previous review). (Paragraph 9.169 of the Code)
  5. Each term Councils should provide a list to schools, the Clinical Commissioning Group (CCG) and to social care of young people who will require their review that term. (9.172)
  6. All reviews taking place from Year 9 must focus on preparing for adulthood, including employment, independent living and participation in society.
  7. Where a young person does not attend a school:
    • The parent, young person, a local authority SEN officer, a health service representative and a social care representative must be invited and given at least two weeks notice of the date of the review meeting.
    • The Council must seek advice and information prior to the meeting from all parties invited and send any information gathered to all those invited at least two weeks before the meeting.
    • The meeting must focus on the progress towards outcomes and what changes to support might be needed to help the young person achieve their outcomes and also consider whether the outcomes need to be changed
    • The Council must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on amendments required to the EHC plan and should refer to any difference between the Council’s recommendations and those of others attending.
    • Within four weeks of the meeting the Council must decide whether it proposes to keep the Plan as it is, amend it or cease it, and notify the young person and their parents.
    • The Council must advise of any right of appeal about its decision.
  8. The SEN (Personal Budgets) Regulations 2014 provide additional requirements where the Council decides it is appropriate to provide all or part of the special educational provision in an EHC plan by way of direct payments. The Regulations say Councils must monitor the use of direct payments when conducting a review of the EHC plan and, if it decides to stop direct payments, it must give reasonable notice.

The facts

  1. Ms X told me this is the fourth time she has had to complain to the Ombudsman to ensure Y’s needs are met.
  2. Ms X last complained to the Ombudsman about delay and errors by the Council in the way it prepared Y’s first EHC plan and for failing to put in place educational provision stated in the Plan. We upheld Ms X’s complaint, found fault and made recommendations of a financial payment for injustice caused as well as recommended improvements to the Council’s EHC process.
  3. Ms X told us that the Council failed to arrange Y’s annual review in 2017 and she needed to prompt the Council. She says the same thing happened again in 2018. The 2017 annual review recommended changes to Y’s EHC plan. Ms X says the Council has failed to amend the Plan, or alternatively failed to make a decision not to amend the Plan (which would provide Ms X and Y with a right of appeal). Ms X says provision which should have bene included in the Plan (direct payments) is being provided by the Council although the Plan has not been rewritten to reflect that a budget is being provided.
  4. Ms X says the 2017 annual review remains incomplete despite several written letters from her. Y requested driving lessons as part of training for independent living but the Council has failed to say whether it will agree to put this provision in Y’s Plan.
  5. In 2018 Ms X says a new SEN officer attended the annual review but brought with them out of date paperwork from 2015, and seemed unaware of what had happened at the 2017 review. Ms X says as a result the meeting ended in confusion. Ms X says the SEN officer declined to share the paperwork they were working from with other attendees and refused Ms X’s request for a further meeting on the basis the Officer had ‘3000 other cases’.
  6. Ms X says the Council assured her they would keep her updated using her preference of email contact, but failed to do so. Ms X says the Council has a new system where all contacts are funnelled through a central SEN contact point and so it is no longer possible to speak to the case officer attached to Y’s case. When Ms X raises a query she says any member of the SEN team may reply and often they are not familiar with the case and nothing moves forward.
  7. Ms X says she wants the Council to:
    • Ensure it has a robust process for annual reviews, including those who are EOTAS, so she is not in the same position in future years. Ms X says the 2019 review will be due shortly but she has not had a decision from either the 2017 or 2018 review from the Council.
    • Issue the amended EHC Plan as soon as possible.
    • Make a decision about the driving lessons and communicate this or include them in an amended Plan.
    • For the Council to communicate in a timely way within set service standards.
  8. The Council considered Ms X’s complaint (originally made in May 2018) at three stages. At stages one and two it upheld some aspects of her complaint and agreed that it would:
    • Ensure her correspondence was passed to the appropriate officer if she put a note in the email subject line, but Ms X had to use the central inbox for the SEN team;
    • Ensure Y’s SEN officer provided the outstanding annual review report(s) as soon as possible.
  9. In August Ms X complained again as the report remained outstanding. This was considered at stage three. In October 2018, the stage three investigator found the complaint had been properly responded to but as three months had passed and the annual review report still not provided, there was fault in the Council’s complaint handling. The investigator recommended the Council make an ex-gratia payment of £250 to Ms X for her time and trouble. The investigator signposted Ms X to the Ombudsman if she remained dissatisfied.
  10. Ms X told me the annual review report promised in the complaint response of August 2018 remains outstanding, a further four month delay.

Analysis

  1. The Council’s stage three investigation has already identified fault in the Council’s handling of Y’s annual reviews in 2017 and 2018 and in its complaint handling. There is no need for me to reinvestigate this as fault has been accepted by the Council.
  2. The Council promised to complete the outstanding annual reviews promptly, but has again failed to do so. This is further fault. The 2019 review is now imminent but a decision from the previous reviews remains outstanding. This amounts to a delay of nearly two years to reach a simple decision and update an EHC plan. This is unacceptable delay.
  3. The delay has caused Y distress. Y is worried provision may be removed without warning because it is not documented. Y has also been waiting two years to find out if the Council will fund driving lessons, potentially preventing Y making progress with outcomes and preparation for adulthood.
  4. Ms X and Y have been denied a right of appeal about any decision not to amend the Plan. While Ms X says she is happy with the provision being made and it is unlikely she would have appealed, the denial of a legal entitlement is, in itself, an injustice.
  5. Ms X has been put to additional time and trouble chasing the Council. Ms X has used the Council’s preferred communication method but this has not led to any apparent progress or resolution of her case. The stage three complaint response refers to ‘competing priorities’ for SEN officers as the reason for its delay. The SEN officer in 2018 referred to a very large caseload. I am also mindful this is the fourth time Ms X has had to complain to the Ombudsman. These factors raise questions whether there is sufficient capacity with the Council’s SEN team to meet the Council’s statutory duties and whether lessons are being learnt from complaints.
  6. Ms X describes a situation where the Council is failing to arrange reviews for those who are EOTAS although the statutory obligation to call the meeting, gather the information and review the EHC plan lies with the Council. It is fault that the Council is relying on parents to ensure their children’s EHC plans are properly reviewed.

Agreed action

  1. Within four weeks of my final decision the Council will:
    • Apologise again to Ms X and Y for the further delay
    • Either issue an amended EHC plan or alternatively issue a decision that it will not amend the Plan following the previous annual reviews
    • Make a payment to Y of £150 for the delay, distress and uncertainty the Council has caused Y.
    • Make a payment to Ms X of £300 for the additional time and trouble caused by the failures in its EHC and complaint processes.
  2. Within eight weeks of my final decision the Council will:
    • Carry out an audit of the EHC plans it maintains for children and young people who are EOTAS to ensure:
      1. A review has been held within the previous 12 months;
      2. It has a system in place to identify which reviews are due each term and that review meetings are organized.
      3. Review meetings are timed to allow for the report and decision to be made within the 12 months of the end of the previous review.
    • Carry out a sampling of EHC cases generally to check whether delay in communicating decisions and updating EHC plans after annual reviews is a wider problem within the SEN caseload and whether teams have enough resources and capacity to meet their statutory duties.
    • Communicate the findings of the above two audits to a relevant Scrutiny Committee and provide evidence to the Ombudsman (for example the report and minutes of the meeting) that it has done so.
    • Review why actions agreed in an upheld complaint were not acted on and whether the Council needs to improve its tracking of the remedies it has agreed.

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Final decision

  1. There was unacceptable delay by the Council in the handling of two annual reviews and in carrying out agreed actions after a complaint. I have completed my investigation as the agreed actions set out above represent a satisfactory remedy for the fault and injustice caused.

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Investigator's decision on behalf of the Ombudsman

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