Summary: Mrs X complains about the Council’s handling of an Education, Health and Care plan for her son. There was a delay in issuing the plan which caused avoidable distress to Mrs X. The Council agreed to a financial remedy for the injustice.

The complaint

1. The complainant, whom I shall refer to her as Mrs X, alleges fault in the Council’s handling of an Education, Health and Care plan (EHCP) for her son. Mrs X’s complaint is composed of the following parts:
• There was a delay in issuing the EHCP following a SENDIST decision in 2018.
• There was a lack of constructive communication between June and September 2018.
• The Council sent inadequate drafts of the EHCP to her.
• There was a lack of consideration of autism. She explained her needs as a person who is autistic but these were ignored by officers.
• The Council did not follow procedure between June 2018 and May 2019.
• She was sent an uncosted EHCP in October 2018 and the costs were not added to the plan until January 2019.
• There was no response to her request for an emergency review in November 2018.
• She received incorrect costings for the EHCP in February 2019.
• There was a lack of support for issues around school attendance in November and December 2018.
• The panel decision on costings for the EHCP did not explain the decision.
• There were factual errors in the Council’s response to her complaint letter.
• A paralegal who assisted her with a SENDIST appeal asked the Council to send all sections of the proposed EHCP so an update of the pupil and parental voice could be done but the Council refused to do so. The paralegal also asked for an early or emergency review of the parts of the EHCP not included in the appeal but the request was ignored.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. 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

6. I reviewed the complaint and background information provided by Mrs X. I made enquiries of the Council and considered information it provided. I discussed matters with Mrs X by telephone.
7. I sent a draft decision statement to Mrs X and the Council and considered the comments of both parties on it.
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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What I found

The Special Education Needs and Disability Regulations 2014

9. Section 44 (2)(c) says where the tribunal makes an order that requires a local authority to make and maintain an EHC plan, the local authority shall issue a draft EHCP within 5 weeks of the order being made and send a copy of the finalised EHCP to the child’s parent within 11 weeks of the order being made.
10. The local authority need not comply with the time limit set out in section 44 (2) (c) if it is impractical to do so because:
• exceptional personal circumstances affect the child or their parent;
• the child or their parent is absent from the area of the authority for a continuous period of 2 weeks or more during the period of time; or
• any of the circumstances in regulation 13(3) apply.

Background

11. Mrs X asked the Council for an EHCP assessment of her son in July 2017. The Council refused an assessment in the same month. Mrs X submitted an appeal to the Council against its refusal to assess in October 2017. This led the Council to say it would carry out a statutory assessment of her son’s special educational needs in November 2017.
12. The conclusion of the assessment was in January 2018. The Council decided not to issue an EHCP. Mrs X appealed that decision to the special education needs and disability tribunal in March 2018.
13. The Tribunal decided the Council should issue an EHCP for Mrs X’s son in June 2018.
14. The Council sent a draft EHCP to Mrs X in July 2018. The final EHCP was sent to Mrs X in October 2018, some 16 weeks and three days after the tribunal order. The Council says the delay was because of a number of exchanges between its officer and Mrs X over the content of the draft EHCP. Mrs X’s son started at a new school in September 2018. He was withdrawn from the school by late November 2018. Mrs X asked for a change of school which the Council agreed.
15. The Council wrote to Mrs X on several occasions between October 2018 and March 2019. On each occasion, the letter from the Council set out a right of appeal to SENDIST about the final EHC Plan. However, Mrs X queried various aspects of the proposed EHCP and, in particular, the cost of the proposed special education measures for her son. It took some time for the Council to respond to Mrs X’s queries and for its panel to determine the cost of the measures.
16. The Council wrote to Mrs X in March 2019 with a final decision on the cost of the new placement. The letter set out Mrs X’s right of appeal. There was a further exchange between Mrs X and officers on the cost matter over the course of March 2019. Mrs X appealed to the Tribunal in April 2019.
17. Mrs X appealed against the content of the EHCP. During the working phase of the appeal she and the Council reached an agreement on the content of the EHCP. The agreement was then endorsed by the tribunal.

Findings

18. I do not propose to examine each aspect of Mrs X’s complaint involving her dealings with the Council’s officers. This exclusion includes matters such as the lack of constructive communication between June and September 2018; inadequate drafts of the EHCP; the costings for her son’s placement; and factual errors in the Council’s complaint response. The Ombudsman cannot consider a complaint about matters which are or were subject to an appeal to a statutory tribunal. Mrs X’s concerns about her communication with the Council between June and September 2018, the drafts of the EHCP, and its costings are matters which were subject to, or inseparably linked to, the tribunal appeal.
19. I note Mrs X considers the Council’s complaint response was factually inaccurate. However, I do not consider it is proportionate for this service to consider a complaint about this matter. The substantive issue of the complaint being the delay in issuing the EHCP will be considered by me and so I do not find it necessary or proportionate to carry out a detailed examination of the accuracy of the Council’s complaint response.

Delay in issuing the EHCP

20. Section 44(2)(c) of the special education needs and disability regulations 2014 is clear the Council had to send a final copy of the EHCP to the child’s parent within 11 weeks of the order being made by the tribunal.
21. The final copy of the EHCP should have been sent to Mrs X by early September 2018. The Council sent the EHCP in October 2018 around 5 weeks later than it should have.
22. And the consequence of this delay? I do not find Mrs X’s son suffered significant injustice because of the delay. He was at school at the time and so there was no loss of educational provision.
23. There was a delay by the Council in resolving the matter of the costs of a placement for Mrs X’s son between October 2018 and March 2019. But I do not find the delay was significant enough to amount to fault. I note Mrs X was aware of the right of appeal to SENDIST in October 2018 and that she could have used the appeal right before she did in April 2019.
24. The delay, however, caused avoidable distress and time and trouble for Mrs X, who wanted the final Plan in place prior to her son’s transition into the new school.

A failure to organise an annual review in November 2018

25. Ms X asked the Council to arrange an annual review in or around November 2018 because her son had not been assessed since the previous year. The Council did not arrange a review. It says it had already agreed to a change in the placement.
26. I do not find fault by the Council as the agreement to the change in the placement negated the need for a review.

There was a lack of consideration of autism.

27. Ms X says she explained her needs as a person who is autistic but these were ignored by officers.
28. The Council says its officers tried to make their communication with Mrs X as clear as possible and they took her autism into account. It says the team leader spoke to Mrs X several times to go through questions or queries and offered her a meeting to go through the draft EHCP. The Council emphasises its officers took time to consider amendments suggested by Mrs X and used tracked changes in the draft EHCP. The Council says Mrs X did not bring any other barriers her autism presented to the attention of its officers.
29. Mrs X says the Council’s comments relate to the period from September 2018 whereas she had asked for support for the next steps as a reasonable adjustment in emails she sent to officers from June 2018.
30. I accept the Council responded to Mrs X’s queries and officers set out time to write to and speak with her. However, the Council could have been proactive in handling’s Mrs X’s condition from the point that officers were aware of her autism. For instance, officers could have asked Mrs X what reasonable adjustments she needed at various stages of their dealings with her and formally recorded the steps that were necessary. There is no record of reasonable adjustments made by its officers. By not making a record of reasonable adjustments, it means the Council officers risk asking inconsistently towards people’s disabilities, or placing them in an avoidable situation where they have to re-state their preferred adjustments. I do not find speaking to Mrs X or responding to her queries is sufficient evidence of the Council making reasonable adjustments. This complaint presents a learning opportunity for the Council in dealing with people with autism.

A paralegal who assisted her with a SENDIST appeal asked the Council to send all sections of the proposed EHCP so an update of the pupil and parental voice could be done but the Council refused to do so. The paralegal also asked for an early or emergency review of the parts of the EHCP not included in the appeal but the request was ignored.

31. The EHCP was sent to Mrs X in October 2018. It would normally be due for an annual review in October 2019.
32. Mrs X’s legal advisor contacted the Council’s tribunal officer in October 2019 following conclusion of the tribunal’s proceedings. The advisor told the officer that Mrs X had asked her to contact the officer regarding sections of her son’s EHCP which had not been covered by the appeal documents. The advisor said Mrs X wanted to ensure those sections were brought up to date as they contained outdated information. The advisor said, “I would be grateful if the Local Authority could engage with [Mrs X] and myself on these sections so that they can be brought up to date.”
33. In response, the tribunals officer told the advisor:

“the LA only sends the appealable sections in the working document, which is why the other sections were not included.. as this appeal is now concluded we would not be sending another working document for amendment. I would suggest that these sections are amended at the next annual review”.

34. The Council says the legal advisor did not request an emergency or early review. It says the advisor’s request was made in the context of the tribunal appeal and Mrs X’s legal advisor was fully aware the working document could not include the sections they were seeking to revise and so the tribunal officer’s response was appropriate. It says had Mrs X or her representative requested an early annual review it would have considered their request accordingly. The Council says the words ‘could engage’ do not amount to a request for an emergency or early review and it cannot be criticised for not interpreting them in this way.
35. But the Ombudsman does not expect parents to be as literal with their words as set out by the Council here when seeking reviews. The tribunals officer could simply have asked an officer who conducts assessments to look into a review. This would have represented good practice. However, I do not consider the issue is serious enough to represent a finding of fault.

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Recommended action

36. I recommended a payment of £200 to Mrs X. This reflects the avoidable distress and time and trouble she suffered. The Council agreed to make the payment.
37. The Council’s SEN team should also review how it agrees and records reasonable adjustments for people with disabilities.

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Final decision

38. There was fault by the Council which caused Mrs X an injustice. The Council agreed to provide a financial remedy for the injustice.

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Investigator's decision on behalf of the Ombudsman