Summary: Mrs X complained about the Council’s delay in reviewing her daughter’s Education, Health and Care plan, and issuing a final amended plan. The Council is at fault for the delays. It should apologise and pay Mrs X £300 for her time and trouble pursuing this. Her daughter has not missed out on support as a result of the delay.

The complaint

1. Mrs X complained about the Council’s delay in reviewing her daughter, D’s, Education Health and Care (EHC) plan and issuing a final amended plan. Mrs X also complained the Council delayed reimbursing her for charges for online tuition for D.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)
4. 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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How I considered this complaint

5. I considered:
• the information provided by Mrs X and the Council;
• relevant law and guidance as set out below; and
• our guidance on remedies.
6. I gave Mr X and the Council the opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plans (EHC Plan)

7. The purpose of an EHC plan is to make special educational provision for children with special educational needs and disabilities. Councils are responsible for deciding whether an EHC plan is needed and for preparing the EHC plan. The EHC plan should set out the specific support that is to be provided. It will usually name either a specific school or a type of school that can meet the child’s needs.
8. The EHC plan will usually be reviewed annually. The review is carried out in partnership with the parents and the child’s school. The Council must decide whether the EHC plan needs amending or not. It should write to the parents setting out its decision and its reasons. It should tell them they have a right of appeal to the Special Educational Needs and Disability (SEND) tribunal.
9. If the Council decides to issue an amended EHC plan it should do this within 8 weeks. There is a new right of appeal at this point.

What happened

Reviewing and amending the plan

10. The Council arranged an annual review of D’s EHC plan in early February 2018. At that meeting it agreed the plan should be amended. The Council told Mrs X the plan needed re-writing. It also agreed that updated reports were needed from health and education professionals and the Council requested these in early March 2018. There was a further meeting in March and the Council said it would send a draft amended plan by late April. It sent a draft plan in late May 2018.
11. There was a further meeting in June 2018 to discuss any changes needed to the draft amended plan. The Council told Mrs X that the case would need to go to its panel for the funding to be agreed. Mrs X says she contacted the Council twice in July 2018 for updates. The first time it told her it would issue an updated draft within a week. The second time, two weeks later, it said it would prioritise the plan. At the end of July it sent Mrs X a form to completed for the panel and Mrs X returned this in early August.
12. Mrs X contacted the Council again in late August 2018 and was told the officer dealing with the case was off sick. She called again in mid- September and was told another officer was now dealing with the case. In late September the Council said it could not establish why the amended plan had not been completed.
13. There was a further meeting planned for early October 2018. A few days before the meeting an officer rang Mrs X to ask why D was not attending school and was being educated using online provision. Mrs X says it was clear that she did not know the history of the case. Two Council officers attended the meeting. Mrs X says neither officer was properly briefed and they came to the meeting with an earlier version of the draft amended plan (the one from February 2018 and not the later version from June 2018). Mrs X had to supply the Council with the later version so it could make the further changes needed.
14. The Council sent a further drafted amended plan in late October 2018 and Mrs X sent some suggested changes a few days later. A further draft amended plan was sent just before Christmas and Mrs X suggested some further changes in mid January 2019. A month later Mrs X asked the Council why the final amended plan had not been issued and said she was making a further complaint to us. (She had previously complained to us about delays in finalising EHC plans). The final amended plan was issued on 20 February 2019.
15. The Council accept there were delays in providing the draft and final amended plans and accept there was a failure to either request an extension or keep Mrs X informed about the reasons for delays. It says the delays were caused by:
• other professionals not submitting updated reports within the required timescales;
• staff sickness absence and secondment;
• the correct paperwork not being prepared and submitted to the panel to agree funding; and
• one staff member keeping information on a personal drive so it was not accessible to other staff.

In addition, there were some delays caused by the school.

16. It says it has taken steps to address these problems, including:
• some internal restructuring of the service in September 2018;
• a review of its IT systems so staff cannot save information on personal drives; and
• the introduction of electronic records so there is now a platform for all communication about child and young people to be recorded and accessible to all relevant staff.
17. Mrs X says D has not suffered a significant injustice because of the delays because her parents protected her from the process and provided any support she needed themselves. However, she says there has been an impact on them in having to attend multiple meetings, chase the Council, and essentially write the plan themselves. Further, with each new officer, they had to start afresh in terms of explaining the background, D’s needs and the reasons D was being educating using online tuition rather than by attending school.
18. The Council says many of the changes made in the new amended plan related to new outcomes reflecting the fact that D was in primary school when the first plan was issued and is now starting GCSEs. She has accessed online tuition throughout and her education was not affected by delays in the EHC process. There is additional provision in the new plan to support D to return to classroom based learning and around preparation for adulthood, which will be delivered by the end of year 11.

Delay in reimbursing Mrs X for online tuition

19. Mrs X complains the Council did not reimburse her for the costs of D’s online tuition for the 2018 spring and summer terms until early February 2019. D was still on the roll at a local secondary school but was not attending it and was receiving online tuition instead.
20. The Council say Mrs X had secured the online tuition before the February 2018 review meeting and at that stage it hadn’t formally agreed to fund this. It cannot say whether its officers gave any oral assertions about this.
21. Its SEN panel did agree to fund the online tuition in January 2019, subject to clarification about whether in fact the school should pay this from funds allocated to it. It is not clear that it told Mrs X it had agreed this. The Council has not been able to confirm whether its officer followed up on this point. It decided it would pay for the online tuition even though it says it should probably have been paid by the school and it did so in February 2019.
22. I understand the school agreed to fund the online tuition from September 2018.

My findings

23. Where a council has decided to amend an EHC plan after a review it should usually do so within eight weeks. In this case, it was necessary to re-write the plan and to obtain fresh reports from professionals. Even taking that into account, I consider the Council has significantly delayed in issuing the final amended plan, which it issued just over 12 months from the date of the review meeting. This was fault.
24. I am satisfied that D has not suffered a significant personal injustice as result of the long delay in finalising the amended EHC plan. However, her parents have had to spend a lot of time and trouble pursuing the Council and complaining to us.

Delay in reimbursing Mrs X for online tuition

25. I accept the Council had not agreed to fund the online tuition at the outset and that the fees for the 2018 spring and summer terms should probably have been paid by the school. However, the Council was at fault for its delay in referring the matter to its panel for a decision and its later failure to clarify the position with the school. This delay meant Mrs X was out of pocket by £2,150 for several months.

Agreed action

26. The Council will, within one month of the date of the final decision:
• Apologise to Mrs X for the delay in issuing the final amended EHC plan, its delay in referring the funding issue to its panel and its failure to clarify whether the school was responsible for funding the online tuition; and
• Pay Mrs X £300 for her time and trouble, and to reflect the fact she was out of pocket in respect of the online tuition costs for several months.

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Final decision

27. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice. The Council has already made changes to the way it works to address the faults I have identified.

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Investigator's decision on behalf of the Ombudsman