Summary: We upheld Mrs X’s complaint about the Council’s handling of her daughter’s education, health and care plan. The Council caused delays, demonstrated unprofessional practice, and failed to secure the provision Mrs X’s daughter required. The Council will apologise and make a payment to recognise the distress and frustration it caused Mrs X, and the loss of provision for her daughter. It will also take action to improve its service to other families.

The complaint

1. Mrs X complains about the Council’s handling of her daughter’s education, health and care plan. She says the Council:

a) carried out inadequate assessments;

b) wrote unprofessional comments in a draft plan;

c) failed to follow orders from the SEND tribunal;

d) delayed issuing a plan;

e) failed to secure the provision in the plan; and

f) did not deal properly with her complaints.

2. Mrs X says her daughter has missed provision she was entitled to. She also says the situation has caused the family distress and she has incurred costs to seek assessments privately. She would like the Council to apologise, compensate her for the impact on her family and improve its processes.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. SEND is a tribunal that considers special educational needs. We cannot investigate a complaint when someone has appealed to a tribunal. However, we may investigate whether there may have been a delay in the process which led to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

6. I have considered the complaint made by Mrs X and the documents she provided.
7. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
8. I took account of the following Ombudsman’s focus reports:
• ‘Education, Health and Care Plans: our first 100 investigations’ published in October 2017.
• ‘Not going to plan? Education, Health and Care Plans two years on’ published in October 2019.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Law and guidance

11. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ (‘the Code’) gives more details about how councils, schools and others should carry out their duties.
12. Most children and young people will have their SEND needs met within early years settings, schools or colleges without any need for involvement from a council. Children with more complex needs might instead need an education, health and care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. Councils are responsible for ensuring effective coordination of the assessment and development of an EHC plan.
13. If a parent asks for an EHC needs assessment, councils must decide whether one is necessary and tell the parent of their decision within six weeks. If a council refuses to assess, parents have the right of appeal to the SEND tribunal.
14. If it decides to assess, a council must seek advice from relevant professionals about the child’s education, health and care needs and desired outcomes. It should also ask what provision will meet those needs and outcomes. Councils must give professionals copies of representations made or evidence sent by the parent. Professionals must provide advice to the council within six weeks of the request.
15. Councils must not seek further advice if it has already been provided and the person providing the advice, the council and the child’s parent are all satisfied that it is sufficient for the assessment process.
16. If the tribunal directs the council to carry out an assessment, and the council decides not to issue a plan, it must tell the parent its decision within 10 weeks of the tribunal.
17. When a council decides not to issue an EHC plan, a parent can appeal to the SEND tribunal. If a council decides not to oppose an appeal against its decision not to issue a plan, it must then issue a draft plan within five weeks and a final plan within 11 weeks.
18. Councils must send the draft plan, including the advice gathered during the needs assessment, to the parent and give them at least 15 days to give their views. Where a council does not agree to changes suggested by the parent, it should issue the final EHC plan and notify parents of their right to appeal to the SEND tribunal.
19. If a council does not carry out a tribunal’s order, within the time limits set, parents can complain to the Ombudsman.
20. Where an assessment leads to a council issuing an EHC plan, the council is responsible for ensuring the special educational provision in the plan is in place.
21. Councils must review EHC plans at least once a year. Reviews must focus on the progress the child is making towards the outcomes in their plan and whether the outcomes and targets remain appropriate. The Council must tell parents within four weeks of the review if in intends to maintain, amend or cease to maintain a plan.
22. The Code says councils may decide to reassess a child if it thinks it is necessary. The maximum timescale for a reassessment is 14 weeks from the decision to reassess to issuing a final plan.

What happened

23. Mrs X asked for an education, health and care assessment for her daughter, Y, in November 2016. The Council refused, and Mrs X appealed to the SEND tribunal. In July 2017, the tribunal ordered the Council to carry out an assessment.
24. In August 2017, the Council completed its assessment and decided not to issue an EHC plan. Mrs X appealed the Council’s decision to the tribunal. In January 2018, the Council conceded the appeal and agreed to issue a plan.
25. The Council issued a draft plan in March 2018. Mrs X asked for a place at a specialist unit for children with autistic spectrum disorders, attached to a mainstream school. The Council issued a final plan in April and named another school. Mrs X appealed to the tribunal about Y’s needs, provision and the school named in the plan.
26. In December 2018, the tribunal agreed the content of the working document (a version of the EHC plan which can be amended by both parties before the tribunal hearing), naming Mrs X’s preferred school. The tribunal also provided direction to the Council about occupational therapy. The Council issued a final plan.
27. In November 2019, the Council carried out an annual review of Y’s plan. In January 2020 it decided to reassess Y’s needs. It issued a final EHC plan in August. Mrs X has appealed the tribunal about the content of this plan.
28. Mrs X remains unhappy about the Council’s handling of her daughter’s EHC Plan. She says the Council:

a) carried out inadequate assessments;

b) wrote unprofessional comments in a draft plan;

c) failed to follow orders from the SEND tribunal;

d) delayed issuing a plan;

e) failed to secure the provision in the plan; and

f) did not deal properly with her complaints.

Analysis

Jurisdiction

29. There are limits on our powers which mean we cannot consider all of this complaint. Where there is a right of appeal to the SEND tribunal about a decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked ’(R (on the application of ER) v the Commissioner for Local Administration, 2014). I cannot, therefore, investigate either the decisions subject to an appeal or the consequences arising from the tribunal’s decisions. This means I cannot consider those periods where Mrs X has exercised her right of appeal.
30. I will consider each of Mrs X’s complaints below.

a) The Council carried out inadequate assessments

31. Once the tribunal ordered the Council to assess Y, it immediately sought advice from those required by the Code. This included the professionals identified in Mrs X’s original request for assessment.
32. The Council had a recent educational psychology report, completed in May 2017. It sought advice from the educational psychologist who completed the report, who advised she had nothing to add. It did not ask Mrs X if she agreed the report was sufficient for the assessment process. It should have done, and this was fault. I cannot say whether any further report from the educational psychologist would have led to a different outcome. But the Council’s failure to consult with Mrs X contributed to her not feeling listened to.
33. The Council sought advice from social care, but its social care department initially failed to carry out an assessment. This was fault. The tribunal directed the Council to complete a social care assessment and Mrs X commissioned a private report from an independent social worker. The tribunal decided there was no evidence Y had social care needs relating to her education. Taking this into account, if the Council had received timely advice from social care it is unlikely this would have influenced its decision not to issue a plan for Y. Therefore, while there is fault, the injustice is limited to Mrs X’s frustration at the Council’s delay.
34. While securing an EHC plan for her daughter, Mrs X commissioned reports from a specialist teacher, occupational therapists, a psychologist, and an independent social worker. Mrs X told me she felt she had to commission these reports because those sought by the Council were not from professionals with expertise in Y’s needs. She had also had a negative experience of the assessment process with her other child.
35. The Council is responsible for seeking advice, but it is not responsible for the content or quality of the advice provided by another body. The decision about which health professionals provided a response to the Council’s request lay with the NHS bodies which oversee those services. Further, a difference of opinion does not mean an assessment is inadequate. I understand why Mrs X decided to commission private reports to support her request for an EHC assessment and her appeal. But I cannot find fault with the Council for the content of the advice it sought and so cannot recommend the Council meets the cost of Mrs X’s privately commissioned reports.
36. I also cannot question the Council’s decision not to issue a plan in response to the reports it received as part of Y’s needs assessment because Mrs X exercised her right of appeal to the tribunal about this matter.

b) An officer wrote unprofessional comments in a draft plan

37. The Council gave Mrs X a draft of Y’s EHC plan in March 2018. This included comments by an officer dealing with Y’s case. Comments placed against descriptions of Y’s needs and provision included “no!!!!!!!”, “absolutely not”, “says who”, “hardly” and “oh for gods sake”. Mrs X was distressed by the comments and immediately complained to a service manager but she was not told if any action was taken.
38. Mrs X raised this issue with the Council several times, without a satisfactory response. Officers investigating her complaints told her they had not had sight of the comments she was complaining about. They could have asked Mrs X to provide a copy to enable them to carry out a thorough investigation. The Council’s poor complaint handling was fault and increased Mrs X’s feelings of distress and frustration. Both the officer’s comments and the Council’s poor response to them showed a dismissive attitude towards Mrs X’s views about her daughter’s needs, outcomes, and provision.
39. In response to my enquiries, the Council accepted this was an unprofessional way for the officer to have written notes in the draft plan and said it had previously apologised for these comments. The officer no longer works for the Council.

c) The Council failed to follow orders from the SEND tribunal

40. The tribunal ordered the Council to amend Y’s EHC plan in line with the working document and other provision outlined in the tribunal’s decision. Mrs X says the Council failed to include some of the provision which had been agreed.
41. The working document was marked up with a series of amendments from Mrs X and the Council. It showed the areas where the changes had been agreed and those that remained in dispute. A senior officer also made a series of handwritten notes on the working document which included other agreed amendments.
42. The Council included most of the changes, including the provision ordered by the tribunal. However, comparing the final plan issued in December 2018 with the working document shows it did not make some changes as agreed. These include, but are not limited to:
• Under communication and social interaction needs, reference to Y’s use of eye contact was marked for deletion but remained in the final plan. Other comments Mrs X had proposed to add about Y’s anxiety about some medical professionals were not included.
• Under provision in this section, Mrs X had added ‘reduce demands’ which had been marked up for inclusion in the final plan but was omitted.
• In the same section, the Council had agreed to amend the wording of provision from the Autism Outreach Service, but this was not amended in the final plan.
• Under sensory and physical needs, the Council agreed to amend the description of Y’s use of a chew necklace or bracelet, but did not include this in the final plan.
• Under provision in this section, the senior officer added that Y was to be supported in the specialist unit during unstructured times, but this was not included in the final plan.
• In the description of funding for Y’s provision in Section I, an officer had marked some wording to be deleted, but it remained in the final plan.
43. Mrs X told the Council about these errors immediately, but there is no evidence it responded to her or amended the plan. The Council had time to do so and still meet the deadline set by the tribunal for issuing a final plan. The Council’s lack of action is fault and caused frustration for Mrs X.
44. Given the Council has since issued a new plan for Y, it is not possible to include these omissions now. While this did not amount to a significant loss of provision for Y, it did undermine Mrs X’s confidence in the Council to follow the orders of the tribunal and deliver the EHC plan as agreed. This is fault.

d) The Council delayed in issuing a plan

45. The Council conceded Mrs X’s appeal to the tribunal about its decision not to issue a plan on 5 January 2018. It should have issued a final plan by 23 March, which was the day it sent Mrs X a draft plan. It did not issue a final plan until 18 April. This delayed Y being able to access the provision set out in her plan. It also delayed Mrs X from being able to appeal to the tribunal about the parts of the plan she was dissatisfied with.
46. Further, after Y’s annual review in November 2019, the Council decided to reassess and later revise Y’s EHC plan. The Council was a month late in advising Mrs X of its decision following the annual review. There is no fault in the Council’s decision to reassess Y, as this was a decision it was entitled to make. But the delay in telling Mrs X what it had decided following the annual review was fault and caused uncertainty. The Council has apologised for this delay.
47. The Council should have issued a final EHC plan within 14 weeks of its decision to reassess Y; it took 31 weeks. This was fault. Y’s existing plan remained in place. However, the delay prevented Mrs X from making a timely appeal to the tribunal about the parts of the plan she disagreed with. This caused Mrs X further frustration.

e) The Council failed to secure the provision in the plan

48. In October 2019, Mrs X said Y had not received the speech and language therapy she was entitled to. She said Y’s one-to-one teaching assistant was supporting other children in the class at the same time and she was not receiving her literacy intervention. She also complained Y had missed periods of occupational therapy and specialist equipment the school had provided for Y was damaged and had not been replaced for several months.
49. In response, the Council said Y’s missed speech and language sessions would be made up for and told Mrs X to raise her concerns at Y’s annual review in November. Mrs X did not feel this was an appropriate way to address the issue of lost provision. There is no evidence of communication between the Council and the school or health providers to address the concerns about lost provision at that time.
50. I agree with Mrs X. While the annual review is an opportunity to review progress, there is a risk that discussions about a failure to secure provision could overshadow discussions about the child’s progress and adds to the delay in provision. The Council should address concerns about a failure to secure provision as they arise. In this case it was fortunate the annual review was scheduled not long after Mrs X complained. However, the review failed to address Mrs X’s concerns, leading to further delay while the Council suggested informal resolution rather than taking direct steps to secure the missed provision.
51. In December, Mrs X told the Council the speech and language sessions had not been provided. In February 2020, the Council spoke to the NHS body responsible which apologised and agreed to provide them.
52. The Council failed to follow up its offer to address the lost provision, such as ensuring any equipment that was not fit for purpose was replaced, promptly. It took a long time to contact the NHS body responsible for speech and language therapy, especially given the Council had already accepted provision was not being delivered. It is the Council, and not Mrs X, that must secure the provision. It should have been more proactive in ensuring these remedial actions were carried out.

f) The Council did not deal properly with her complaints

53. Mrs X has provided evidence that she wrote to a manager in the Council’s SEN service in March 2018, mainly about the inappropriate comments left on the draft plan. She asked him to pass the letter to the Council’s complaints team. She sent this complaint to the manager again in July 2018. There is no evidence the Council responded to these complaints. As stated in paragraph 38, the Council has had several opportunities since then to address the complaint about the officer’s comments on the draft plan but has failed to do so.
54. Mrs X made other complaints to the Council from September 2018 onwards. The Council responded to each complaint and escalated some to stage two of its complaints procedure. When the Council decided to end one complaint investigation it told Mrs X of its intention to do so and gave her time to respond.
55. In its responses the Council has shared some actions it has taken to improve the service it delivers. These include restructuring the SEN service, providing more training and recruiting more staff, including an officer to oversee the tribunal process. It has explained why it will not meet the cost of the private reports Mrs X commissioned.

Injustice

56. It has undoubtedly been a drawn-out and stressful experience for Mrs X to secure an EHC plan and provision for Y. I cannot attribute all the delay or stress to the Council. However, there is evidence of some delay, unprofessional practice, and a failure to secure provision by the Council. This caused Mrs X frustration, distress and time and trouble in pursuing the same matters repeatedly with the Council. It also undermined her confidence in the Council’s ability to deliver Y’s plan and meet her needs. I cannot say what the impact may have been if Y had received the full package of support she was entitled to, but it is clear she has missed provision.
57. In response to my draft decision, the Council said it has already addressed some of the learning from this complaint. It provided evidence of its revised training programme for staff which includes reference to values and behaviours, quality requirements for EHC plans and the importance of co-producing plans with parents. The training also emphasises the important of timeliness at all stages of the EHC plan process and provides information about the tribunal process and complaint handling.

Agreed action

58. Within one month of this decision, to remedy the injustice caused, the Council will:
• apologise to Mrs X and Y for the faults identified in this investigation;
• pay £750 to Mrs X. This is to recognise the distress caused by the Council’s actions, the frustration caused by its delays, and the time and trouble taken to pursue her complaint.
• remedy the injustice to Y of her lost special educational needs provision by making a further payment of £1,000. In calculating this remedy, I considered what provision Y received and balanced this against the delay in issuing her first EHC plan and delays in securing the provision in the plan which the Council accepted was not being delivered. Mrs X can use this for Y’s educational benefit to ensure she catches up, as far as possible, on provision she missed.
59. Within one month of this decision, to improve its services, the Council will:
• Ensure officers seek agreement from parents if the Council is relying on previous advice when deciding whether to issue a plan.
• Remind officers of the need to remain professional and courteous when responding to parents’ comments on a draft plan.
• Remind officers and managers in the SEN service of the correct process to follow if they receive a complaint.
• Remind officers of the need to incorporate all amendments agreed at tribunal in the final plan.
• Remind officers of the timescales for following orders from the tribunal, for issuing decisions after annual reviews, and for issuing a plan after completing a reassessment.
• Review its process for responding to concerns about missed provision, ensuring it takes a proactive approach to finding out what provision has been missed and to ensuring any lost provision is replaced or remedied.
60. The Council will provide evidence to the Ombudsman that it has completed each action.

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Final decision

61. I uphold parts b), c), d), e) and f) of this complaint. Mrs X was caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman