Summary: Mrs B complains the Council did not put in place suitable special educational needs provision for her son and delayed issuing her son an Education, Health and Care plan. The Council is at fault for the delay in issuing Mrs B’s son with an Education, Health and Care plan. The Council has agreed to take action to remedy the injustice caused by its delay.

The complaint

1. Mrs B complains the Council did not put in place suitable special educational needs provision for her son and delayed issuing her son an Education, Health and Care plan.

Back to top

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. 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)
3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
4. 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)
5. 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.

Back to top

How I considered this complaint

6. I considered:
• Ms B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines;
• the Council’s policies and procedures; and
• Mrs B and the Council’s comments on a draft decision.

Back to top

What I found

Legislation and guidance

Statement of SEN to EHCP

7. By 1 April 2018, councils must have transferred all children and young people with statements of special educational needs (SEN), who meet the criteria, to an education, health and care plan (EHCP) (Children and Families Act 2014).
8. Councils must conduct a transfer review in the form of an EHCP needs assessment (Special Educational Needs and Disability Regulations 2014).
9. Transferring a child from a statement of SEN to an EHCP must take no more than 14 weeks when the transfer started before 1 September 2015.
10. The council must get advice as part of an EHCP assessment namely:
• the child’s parents or the young person themselves
• educational advice
• psychological advice from an educational psychologist
• medical advice
• social care advice

(Special Educational Needs and Disability Regulations 2014, SI 2014/1530 (made under sub-s (11)).

11. Councils are responsible for making sure arrangements in the EHCP are in place (SEND Code of Practice 2015).
12. EHCPs must include provision to help in preparing for adulthood from Year 9 (SEND Code of Practice 2015).
13. Special educational provision for a child or young person may be delivered through a ‘personal budget’ (SEND Code of Practice 2015).
14. The overall maximum timescale for a reassessment for an EHCP is 14 weeks from the decision to reassess, to issuing the final EHCP (SEND Code of Practice 2015).
15. When sending the final amended EHCP, the council must tell the child’s parent or the young person of their right to appeal and the time limit for doing so (SEND Code of Practice 2015).
16. In 2017 the Ombudsman published a focus report ‘Education, Health and Care Plans: our first 100 investigations’. Commons issues included delay, gathering evidence to inform the EHCP and key phase transfers.

Amending an EHCP

17. Where the council proposes to amend an EHCP, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and details of proposed amendments, including copies of evidence to support the proposed changes. The child’s parent or the young person should be told they may ask for a meeting with the council to discuss the proposed changes.
18. The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a school or other institution be named in the EHCP.
19. Following representations from the child’s parent or the young person, if the council decides to continue to amend, it must issue the amended EHCP within 8 weeks of the original amendment notice. If the council decides not to amend, it must tell the child’s parent or the young person, explaining why, within the same time limit.
20. When sending the final amended EHC plan, the council must tell the child’s parent or the young person about their right to appeal and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services.

Council’s complaint procedure

21. At stage 1, complainants will receive a response within 10 working days. If this is not possible the Council will tell the complainant when to expect a response.
22. If the complaint is dissatisfied with the stage 1 response, the complaint can be escalated to stage 2. At this stage, the complaint will be considered by the relevant director. The director will respond to the complaint within 10 working days.

What happened

23. This chronology includes key events in this case and does not cover everything that happened.
24. C has Autism and physical, emotional and behavioural difficulties.
25. In August 2015, the Council wrote to Ms B to give her advance notice that C’s transfer review would take place in the Autumn term. It said formal notice would be given two weeks prior to the meeting being held. The Council did not hold the meeting until May 2016. The Council has not been able to find any evidence to explain why the Council changed the date of the review. However, the review was within timescales as C’s previous review had taken place in May 2015.

May 2016 – May 2017: Transfer from SEN to EHCP

26. In May 2016, the Council held a transfer meeting to begin to move C from a statement of SEN to an EHCP. Mrs B asked for a hot tub for C to help with his vitamin D deficiency. The Council told Mrs B health, not social care, was responsible for providing this equipment.
27. In June 2016, Mrs B said she gave documents to C’s school for his EHCP which the Council did not receive. The Council spoke to the school. The school said there were too many documents to transfer electronically and some needed to be put into a different format before they could be added to C’s EHCP.
28. In August 2016, Mrs B complained to the Council that assessments of C’s needs had not been completed, reports had not been submitted, and professionals had not been invited to the transfer meeting. Mrs B also complained reports had not been shared with her by the Council and C’s personal budget had not been discussed. Mrs B asked when C would be assigned an EHCP coordinator.
29. The Council responded to the complaint in September 2016. The Council apologised for not sending Mrs B any information before the transfer meeting and that C’s EHCP was not completed within timescales. The Council said it would chase up reports and referrals. It asked Mrs B to confirm she was asking for a personal budget for C and advised her to ask for a paediatrician report via the SEN team.
30. Mrs B asked the Council to ask for educational psychology and occupational therapy assessments for C. Mrs B asked the Council who should request the paediatrician assessment and if it could link them in with the integrated physical and sensory service (IPASS). Mrs B also asked the Council to fund a hot tub to help C with his vitamin deficiency and a kindle to support his education. Mrs B said she was still waiting for C to be assigned an EHCP coordinator.
31. In September 2016, the Council assigned an EHCP coordinator. The Council asked for reports from occupational therapy, C’s paediatrician and the SEND information, advice and guidance service, giving them 6 weeks to respond.
32. In October 2016, Mrs B asked the Council how to arrange a home-based occupational therapy assessment.
33. In March 2017, the Council told Mrs B she had to ask for an occupational therapy report via her doctor. Mrs B asked the Council to refer C to an inclusion practitioner. The Council told Mrs B she would need to make a referral for an inclusion practitioner via the educational psychologist.
34. In March 2017, a careers report was produced for C by his school. This report was shared with Mrs B.
35. Mrs B asked if she could use C’s direct payments to pay for a hot tub. The Council told Mrs B they could not.
36. In April 2017, the Council asked for a report from an educational psychologist.
37. In April 2017, the Council held a review for C. Mrs B expressed concern the Council had not given C equipment he needed or enough speech and language support.
38. In May 2017, the Council issued a draft EHCP. The Council consulted with School D, a specialist provision for children with a wide range of learning difficulties, autistic spectrum conditions and medical or sensory impairments. School D agreed it could meet C’s needs. Mrs B accepted this placement.
39. In May 2017, the Council issued a final EHCP naming School D. The EHCP considered C’s transition to adulthood and recorded that he wanted to attend college when he finished school. The Council gave the family information about advice and support services. The Council also told the family about their right of appeal to the SEND tribunal.

May 2017 – January 2018: Amending the EHCP

40. Four days after a final EHCP had been issued, the Council received a report from the educational psychologist. The Council told Mrs B it would amend C’s EHCP and issue a draft for her comment.
41. In June 2017, there was a review of C’s EHCP and the Council issued a draft EHCP.
42. In August 2017, the Council told Mrs B it would take her request for a hot tub to the specialist equipment panel for consideration. Mrs B asked the Council why this had not happened before. The Council said the application to the equipment panel was a recommendation from the EHCP meeting in June 2017. In September 2017, the Council told Mrs B the panel had declined her request for a hot tub.
43. C started School D in September 2017.
44. In September 2017, Mrs B complained to the Council about the equipment panel’s decision not to fund a hot tub. Mrs B also told the Council they were still waiting for a sensory integration and a speech and language report for C.
45. The Council responded to Mrs B’s complaint in October 2017. It told Mrs B how to appeal the equipment panel’s decision. The Council said C did not need an annual sensory integration assessment.
46. In October 2017, the Council sent Mrs B a second draft EHCP it had mistakenly labelled as a final EHCP. Mrs B contacted the Council who explained its mistake. Mrs B said the information she had given to the Council was not included in the draft EHCP and complained that she could not use C’s personal budget to buy a hot tub.
47. The Council wrote to Mrs B in October 2017. It said 150 documents had been received and it would take time to read and summarised them to include in C’s EHCP. The Council said it would ask the equipment panel to reconsider Mrs B’s application for a hot tub if she had new evidence. The Council confirmed when the equipment panel considered the request for a hot tub, it did not listen to the audio evidence. The Council explained how Mrs B could appeal the panel’s decision.
48. In November 2017, C met a SEND information, advice and guidance service officer. The SEND information, advice and guidance service completed a report for C in December 2017.
49. Mrs B sent the Council information for C’s EHCP. The Council told Mrs B it needed to convert this information into a useable format, and this could take some time. Mrs B told the Council it still needed to request reports to finalise C’s EHCP.
50. The Council reconsidered Mrs B’s request for a hot tub and considered all the evidence provided by Mrs B. The request was rejected.
51. In December 2017, the Council met with Mrs B to discuss outstanding issues with C’s EHCP. The Council issued a final EHCP in January 2018. Within this plan, the Council gave C a personal budget to buy a kindle.

January 2018 - April 2018: Amending the EHCP

52. In January 2018, the Council agreed to amend C’s EHCP to incorporate new information. The Council and Mrs B discussed plans for C’s transition to post-16 provision.
53. Mrs B told the Council, C wanted to stay at School D post-16. Mrs B asked the Council what the procedure was for securing this placement. Mrs B reminded the Council C’s occupation health and sensory integration reports were overdue.
54. In February 2018, the Council held a review meeting and sent an amended EHCP to Mrs B. Mrs B told the Council information was missing from the draft EHCP. The Council asked Mrs B to provide evidence from professionals to support amendments she asked for.
55. The Council issued a second draft EHCP in March 2018.
56. In March 2018, the Council responded a complaint from Mrs B’s at stage 1 of its procedure. The Council upheld 15 of the 31 complaints:
• It did not send Mrs B a letter to explain the procedure of changing from a statement of SEN to an EHCP.
• The Council delayed giving Mrs B information about referral routes for occupational therapy and the sensory and physical teaching service. The Council accepted when information was given, it was conflicting.
• The Council did not action a request for C to have a sensory integration assessment in June 2017.
• The Council said a careers report had been shared with Mrs B when it had not.
• The Council did not save all documents and those that were, were not saved in an orderly way.
• The Council did not action a request for C to have a kindle.
• Mrs B’s phone calls and emails were not returned by the Council.
• Delays in completing C’s EHCP were unacceptable.
57. The Council offered Mrs B £300 for inconvenience and any stress caused. Mrs B rejected the offer and asked for the complaint to be escalated to stage 2 of the complaint procedure.
58. In April 2018, the Council met with Mrs B to discuss C’s EHCP and make amendments. The Council issued a third draft EHCP. Mrs B said she did not want the EHCP to be finalised until all professionals’ reports were received. Mrs B said the home-based occupational therapy and the sensory integration reports were outstanding and an agreement had not been reached about equipment for C. The Council explained the finalised EHCP could be reviewed when new information was received.
59. The Council issued the final EHCP in April 2018. The plan said C wanted to stay at School D and attend its sixth form. The Council said it would make a referral to adult services once C reached 16 years and the transition team would attend his annual review and discussion choices for him when he leaves education. The Council agreed a personal budget to pay for a kindle for C.
60. In June 2018, a SEND information, advice and guidance service report was completed for C.
61. In July 2018, the Council received Mrs B’s agreed complaint for the stage 2 investigation. The Council and Mrs B agreed to a deadline of September 2018 for the completed stage 2 report.

July 2018 – December 2018: SEND Tribunal

62. Mrs B registered an appeal with the SEND tribunal in July 2018.
63. The Council received an occupational therapy/ sensory integrations report for C.
64. In September 2018, Mrs B asked the Council when C would have a speech and language assessment.
65. In September 2018, the Council responded to Mrs B’s stage 2 complaint. Of the 9 complaints, 2 were upheld:
• The Council had not asked for an annual update from an occupational therapist since September 2014.
• The Council failed to respond to Mrs B about her request for information via the local offer website.
66. The Council reoffered Mrs B £300 compensation. Mrs B rejected this offer.
67. In October 2018, Mrs B complained the Council had not responded to an email sent in September 2018. Mrs B asked the Council to deal with her complaint formally. The Council told Mrs B although it did not respond to her email, since the email was sent, she had contact with the educational psychologist, and speech and language therapist. The Council apologised for not replying to the email. Mrs B told the Council she was not satisfied with the response and wanted the complaint to be escalated to the next stage.
68. In October 2018, the Council received an educational psychologist and a speech and language report for C.
69. In November 2018, Mrs B told the Council it had recorded that reports had been shared with them, but this was not the case.
70. In December 2018, the Council held a review for C. The Council and Mrs B agreed amendments to C’s EHCP. The SEND tribunal issued a consent order.
71. In January 2019, the Council issued a final EHCP. This plan included preparing for adulthood section and named School D. It included information from up-to-date reports from educational psychology, speech and language therapy, occupational therapy and SEND information, advice and guidance service.
72. In January 2019, Mrs B told the Council C wanted to move to a new education provider, College E. College E is a further education college for young people with learning disabilities. The Council consulted with education providers, including College E.
73. In March 2019, the Council held a review for C. This meeting was to talk about C’s post-16 placement. C said he wanted to attend College E.
74. The SEN panel approved the request for C to attend college E for three days a week. The Council arranged for a career adviser to speak to C about what he would like to do with his other 2 days.
75. In April 2019, the Council issued a final EHCP. This plan included a preparing for adulthood section and named College E.

Analysis

76. The Council was responsible for significant delay in this case. Transferring a child from a statement of SEN to an EHCP must take no more than 14 weeks; in this case it took 12 months. Amending an EHCP must take no more than 8 weeks; in this case it took 7 months on the first occasion and 3 months on the second. The Council is at fault for these delays. In the stage 2 complaint response, the Council accepted delays in completing C’s EHCP were unacceptable.
77. There was delay in giving Mrs B information. It took over 6 months for the Council to tell Mrs B about referral pathways for assessments, and when she was told, the Council gave her conflicting information. The Council accepted fault at stage 2 of the complaint procedure.
78. There was also a delay in the Council asking for assessments. C should have been assessed yearly by an occupational therapist. This did not happen, which was fault. Mrs B’s had to chase the Council for a sensory integration assessment which resulted in delay; again, this was fault.
79. The Council accepted it did not save all the documents it received about C. It has also accepted the documents that were saved, were not saved in an orderly way. Poor file management is fault.
80. The Council did not always communicate with Mrs B effectively. There was a delay in the Council responding to Mrs B as part of both the EHCP and the complaint procedure. The Council accepts there were delays in communication and this is fault. The Council also accepts it recorded that Mrs B had seen reports she had not seen. This is fault.
81. The Council delayed considering Mrs B’s request for a kindle and a hot tub; this is fault. C has since been provided with a kindle, and the request for a hot tub was rejected.
82. The Council’s delay meant Mrs B’s right to appeal to the SEND tribunal was delayed and C had to wait to longer than expected be assessed and to access equipment.
83. These faults are particularly disappointing given the clear advice given to Council’s in 2017 in the Ombudsman’s focus report ‘Education, Health and Care Plans: our first 100 investigations’.

Agreed action

84. Within one month:
• The Council will honour its offer to pay C £300 for the faults identified.
85. Within two months:
• The Council will provide staff training for its SEN team on statutory timescales.
• The Council will review its file management and IT systems to ensure they are fit for purpose.
86. The Council should provide the Ombudsman with evidence that the above recommendations have been completed.

Back to top

Final decision

87. I have completed my investigation and uphold Mrs B’s complaint. Mrs B was caused injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman