Summary: Mr X complains the Council failed to make the SEN provision specified in his son’s Education Health and Care (EHC) Plan. He says the Council’s actions have caused his family stress and expense in arranging private reports for a SEND Tribunal. The Council failed to make the SEN provision and delayed amending the EHC Plan, preventing Mr X from appealing to the SEND Tribunal against this. Although the Council will pay Mr X £100 now for his time and trouble in having to chase it, it will not be possible to properly assess the injustice to Z until the SEND Tribunal decides on his needs.

The complaint

1. The complainant, whom I shall call Mr X, complains the Council:
1. Took too long to issue revised draft and final Education Health and Care (EHC) Plans for his son, Z, after an annual review meeting on 2 July 2018;
2. Failed to respond to ‘phone calls and emails chasing this, sent the draft EHC Plan to Mr and Mrs X by encrypted email, and said on 16 January 2019 it would review it, when by this time the final EHC Plan had already been signed off;
3. Failed to provide the 32.5 hours of one-to-one support specified in Z’s EHC Plan from 1 September 2017 to 16 January 2019, when it issued the final EHC Plan after the annual review meeting; and
4. Pressurised Z at a mediation meeting on 7 February 2019 by asking him directly if he did not need one-to-one provision in specific lessons, when his SEN makes it more difficult for him than for other children to cope with such questioning, to the extent that the facilitator had to allow Z to leave the room.
2. Mr X says the Council’s failings caused the family stress and significant cost in arranging report for a Special Educational Needs and Disability (SEND) Tribunal hearing.

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The Ombudsman’s role and powers

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. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. 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

9. I read Mr X’s complaint and spoke to Mrs X on the telephone. I considered the Council’s duties under the SEN Code of Practice 2015, then made written enquiries of it. I considered the Council’s response to those enquiries and the documents it provided.
10. Although Mr X is the complainant, Mrs X has also been involved in pursuing the complaint. Therefore, I refer to both of them in this statement.
11. Although one part of complaint b) concerns the transmission of data, I have exercised the Ombudsman’s discretion to consider it. This is because it is a minor matter ancillary to the main complaint, and it is not a complaint about any data breach. It would therefore not be reasonable to expect Mr X to complain again to the ICO.
12. I shared a draft of this decision with both parties and invited their comments. Neither made any comments.

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What I found

Context

13. Z has SEN recognised by an EHC Plan. His principal needs concern autism. He transferred to secondary school in September 2017. His EHC Plan stated he needed one-to-one teaching assistant support for 32.5 hours per week. This included lessons and all informal time in school, including breaks and the lunch period.
14. I will first deal with what happened in each of the four inter-related matters complained about, stating if there was fault. I will deal with any injustice caused by any fault after considering these four matters.

Complaint a): Delay in issuing Z’s EHC Plan.

15. Councils must carry out an annual review of the needs of every child with an EHC Plan. This usually takes place at the child’s school. Councils have four weeks after the annual review to decide if they need to amend the EHC Plan. This is sometimes held up by a school sending notes late. Sometimes time is not an issue because all parties are happy with the EHC Plan as it is. Where a council decides to amend an EHC Plan, it must do this within eight weeks of its decision to amend.
16. Z’s annual review happened on 2 July 2018. His school had made it clear it was not making the provision as stated in the EHC Plan. Z was not being accompanied by a teaching assistant outside lesson times. The Council accepted this and needed to amend the EHC Plan. I have seen no evidence Z’s school sent the notes late or that Mr X delayed the Council. Therefore, the Council should have told Mr X of its decision to amend by 30 July 2018. And it should have issued the final EHC Plan by 24 September 2018.
17. The Council issued Z’s final EHC Plan on 16 January 2019. This was three and a half months late. The Council accepted this and apologised in response to Mr X’s complaint. I find the Council at fault.

Complaint b): Communication

Failing to respond to calls and emails

18. It is a matter of good administrative practice to respond to calls and emails within a reasonable period, unless the behaviour of the person chasing gives grounds to restrict their communications, when it may be acceptable not to respond to every email or call. In this case, the correspondence I have seen shows Mr and Mrs X chased the Council about the delayed EHC Plan and, on occasions, did not get any response. The Council has not suggested Mr and Mrs X had unreasonable expectations of response or that they sent too many emails, and nor do I. I find the Council at fault.

Use of encrypted emails

19. Given the need to protect sensitive personal data, many councils choose to use encrypted emails. It is a matter for each council whether to email sensitive documents unencrypted to a complainant’s email address at the complainant’s request. However, it is a matter of good administrative practice to treat electronic communications in the same way as postal communications if sensitive personal data is involved.
20. In this case, Mr and Mrs X were unable to open an encrypted email from the Council that attached Z’s draft EHC Plan. The EHC Plan contained sensitive medical information about Z. Mrs X asked the Council to send it to her email address unencrypted. The Council declined, saying it would post the EHC documents to the family instead. Mrs X told the Council not to do this, but to send them by recorded or special delivery. The Council posted the documents against Mrs X’s wishes.
21. The data was sensitive, and the Council was not prepared to send it unencrypted even to an email address it had already used. Mrs X had asked it to send it securely by post. Sending the data by ordinary post was inconsistent with its refusal to use unencrypted email. I therefore find the Council at fault.

A telephone call about reviewing the draft EHC Plan

22. We would not expect any public authority to say it would review a document it had already signed off. But it is not possible to reach any view in this case. This is because the matter is the disputed content of a telephone call. There is no corroborating evidence that would allow me to reach a view on the balance of probabilities about what was or was not said.

Complaint c): Making the provision in Z’s EHC Plan

23. Z’s EHC Plan was clear in that he needed one-to-one support from a teaching assistant throughout the whole school day (32.5 hours). This included informal times such as breaks and lunch. However, I note the EHC Plan did not specify the teaching assistant should sit next to Z in the classroom. The Council had to make the provision until such time as it amended Z’s EHC Plan to remove all or part of it.
24. Z’s school confirmed in its report for the annual review of Z’s EHC Plan in July 2018 that he had not had the teaching assistant support during unstructured times. It had provided this during lessons only. The school took the view Z had not needed the support and had achieved well.
25. I have seen no evidence the Council was aware Z was not getting the full provision until it received the school report in July 2018. However, the Council is responsible for making the provision, so I must find it at fault for not making the provision or amending the EHC Plan between September 2017 and July 2018. It also follows that the Council continued to fail to make the provision specified in Z’s EHC Plan until it issued the new EHC Plan on 16 January 2019. This was fault.
26. Mrs X complained to the Council more than once in the autumn of 2017 that the teaching assistant was not sitting next to Z in some lessons. However, the EHC Plan did not specify the position the teaching assistant should take up in a classroom, so I do not find the Council at fault.

Complaint d): Pressurising Z at a mediation meeting

27. Whether a child attends a mediation meeting between his parents and a council is a matter for the child and his parents to decide. Unless there is a specific request for the child not to be asked any questions at the meeting, it is likely a council officer would do so. This is because the SEN Code of Practice 2015 assumes that a child has the right to give his or her views.
28. Z was present at a mediation meeting between the Council and Mr and Mrs X on 7 February 2019. Both parties agree that a Council officer asked Z about which lesson he needed support in. Mr X says this was not appropriate and Z was so uncomfortable he had to leave the room. He says Z’s SEN made it more difficult for him than for other children to cope with the question. The Council says it was appropriate for the officer to ask Z for his views. It says the officer asked him sensitively and it would have been odd if she had not asked Z for his views, given he was present, and the meeting was about his needs.
29. I accept Mr X’s point that, given the nature of Z’s SEN, he would have found it more difficult than other children to cope with a direct question. However, I have seen no evidence that Mr and Mrs X told the Council before the meeting that Z should not be questioned during it. The matter therefore comes down to whether the Council officer should have avoided asking Z any questions, or any specific questions. As Mr and Mrs X had not set any condition on Z’s attendance at the meeting, I find it was a matter for the Council officer to exercise her own judgement. It is not for me to substitute another view. I do not find the Council at fault.

Injustice

30. Mr X has appealed against the EHC Plan the Council issued on 16 January 2019. The delay in starting the appeal process is the direct result of the Council’s delay in issuing the new EHC Plan. But the result of the appeal is not yet known. Until then, it will not be possible to know what Z’s needs are. That will affect the injustice the fault found in complaints a) and c) may have caused Z and his parents, both in the period after the annual review of July 2018, and in the period between September 2017 and July 2018.
31. But it is possible now to decide the injustice caused by the fault found in complaint b). Mr and Mrs X had unnecessary time and trouble in chasing the delayed EHC Plan when the Council did not respond to their contacts. However, while the Council was wrong to send data it deemed sensitive by ordinary post, despite Mrs X’s objection, no data was lost. So, the extra injustice caused was limited, amounting to additional frustration for Mr and Mrs X with the way the Council managed the process of issuing the delayed EHC Plan.

Agreed action

32. To remedy the injustice caused by the fault found in complaint b), the Council will, within one month of the date of the final decision:

• Apologise to Mr and Mrs X for failing to respond to their contacts chasing the delayed EHC Plan and for sending the Plan by ordinary post when it contained sensitive data the Council would otherwise have sent by encrypted email; and
• Pay Mr and Mrs X £100 for their unnecessary time and trouble in chasing the Council to respond to their contacts and issue the new EHC Plan.

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Final decision

33. I have upheld complaint a), parts of complaint b), and complaint c). I closed the case as the Council has agreed to provide a suitable remedy for the injustice caused by fault.
34. Mr X is welcome to return to us once the result of the SEND Tribunal is known so we can consider what further injustice may have been caused by the faults in complaints a) and c). He should do so within 12 months of the Tribunal hearing unless there is a good reason that prevents him.

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Investigator's decision on behalf of the Ombudsman