Summary: Mrs X complained about the statutory assessment and review process of her daughter’s, Y’s Education, Health and Care Plan. The Council has already accepted there were delays in the assessment process that affected Y’s provision and has paid Mrs X a financial remedy and made service improvements. However, there were further faults that occurred whilst the Council dealt with Mrs X’s complaint which has caused further avoidable frustration. The Council has agreed to apologise for those.

The complaint

1. Mrs X complained about the statutory assessment and review process of her daughter’s, Y’s Education, Health and Care Plan (EHC Plan). She said the Council failed to:
1. complete the EHC Plan review within the statutory timeframe;
2. attend Y’s EHC Plan review meeting;
3. share Y’s amended EHC Plan with her nursery;
4. communicate with her in a timely manner;
5. make improvements to its Statutory Assessment and Review Service (the Service) as promised in its stage two complaint response; and
6. consider the complaint at stage three.
2. Mrs X said the ongoing difficulties have affected her mental health and she feels let-down and frustrated by the Council. She says that despite complaining she is still unclear which Council officer is responsible for her daughter’s EHC Plan.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
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)
6. 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

7. I discussed the complaint with Miss X and considered the Council’s response to enquiries.
8. I referred to the Special educational needs and disability code of practice: 0 – 25 years (the Code).
9. Miss X and the Council both had the opportunity to comment on my draft decision.

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What I found

The law

10. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. We cannot change the contents of an EHC Plan or name a different school. Only the Tribunal can do this.
11. A parent, education provider or the young person (when aged over 16) can ask for an EHC needs assessment. Following that request, the Council has six weeks to decide if an assessment is necessary and tell the parents. A decision not to complete an assessment is appealable to Tribunal.
12. Councils can develop criteria as guidelines to help them decide when it is necessary to complete an EHC needs assessment. However, councils must use their discretion and depart from any policy if there is a good reason to do so.
13. If the Council agrees to complete an EHC assessment and decides to issue an EHC Plan, it must complete that process within 20 weeks of the initial request. The Council must then ensure the EHC Plan is reviewed at least once year. For children aged between 0-5 years, the Code suggests councils consider reviewing EHC Plans every three to six months. It says those meetings may not need to involve the full range of professionals.
14. The Council can delegate responsibility for completing reviews to the educational provider. The provider must invite relevant professionals to the review and ask them for advice before the meeting. After the review, the Council has four weeks to send the child’s parents a decision notice. This outlines whether the EHC Plan is to continue; whether it needs changing or if it is to end. An amended EHC Plan must be issued within eight weeks of the review meeting.
15. The Council’s website provides information on the support it offers for children with special educational needs aged between 0-5.

Background

16. Mrs X’s daughter Y is four years old. Y has global developmental delay. That means it will take her longer to reach developmental milestones (such as walking, talking and movement skills) than other children her age. Y also has epilepsy.

What happened

17. Mrs X initially asked for an EHC needs assessment in June 2017, when Y was aged two. The Council issued a notice of rejection 16 weeks later, in October 2017.
18. In September 2017, Y started to go to nursery for two mornings a week. Following a second request for assessment in November 2017, the Council agreed to complete an EHC needs assessment and to issue a Plan. The Council issued the EHC Plan at the end of July 2018; that was 35 weeks after the second request for assessment. That Plan said Y needed 20 hours a week access to a specialist support assistant.
19. On 30 July 2018 Mrs X complained to the Council about the delays in issuing the EHC Plan. The Council accepted there were delays but said that she should have now received a copy of it. It offered to meet and discuss her complaint.
20. At the start of September 2018, Mrs X emailed the Council and said Y’s nursery had not received funding for the one-to-one support despite the Council issuing the EHC Plan. She agreed to meet to discuss her complaint in more detail.
21. The Council issued a final amended EHC Plan on 19 September 2018. That said Y needed 30 hours of specialist support.
22. The Council met with Mrs X at the start of October 2018. It sent a stage two written response to her complaint later that month. In that response the Council apologised for delays in issuing Y’s final EHC Plan. It also agreed to:
• complete an early review of Y’s EHC Plan in late Autumn, ready for her transfer to primary school (reception) the following year;
• review the statutory assessment process for children who were eligible for ‘local early intervention and support’;
• review the statutory assessment process; and
• review how it communicated with parents and its expectations of staff.
23. Mrs X was unhappy with the Council’s response and wanted it to escalate her complaint to stage three. She said the Council had failed to explain the reasons for the delays in Y’s EHC Plan and the lack of support that meant for her daughter.
24. The Council sent a further response and said that gathering information for the assessment had exceeded its timescales as had making changes to information in the draft plan. The Council offered to meet Mrs X again to discuss changes it had made to the Service and to discuss a financial remedy.
25. On 14 January 2019 the nursery held an EHC Plan review for Y. The Council did not attend that meeting. An advocate supporting Mrs X wrote to the Council and said that the nursery had been given the task of sending out invites for the meeting but did not know the review process or have any review paperwork. It reminded the Council that in its stage two response it had said it would attend.
26. On 21 January 2019 a second EHC Plan review was held. The Council did attend that meeting. On 20 February 2019, the Council issued the final amended plan for Y’s transition to primary school in the September.
27. On 2 April the Council wrote to Mrs X outlining the changes it had made to its Service. It offered Mrs X a financial remedy of:
• £250 per month for the nine months between November 2017 and August 2018 when Y did not receive suitable education provision because of delays in the EHC Plan process.
• £500 for Mrs X’s time and trouble in pursuing the complaint.
• £900 reimbursement for the additional mornings at nursery Mrs X had to pay for because of the time she had spent working through the EHC Plan process.
28. Mrs X emailed the Council at the start of May and accepted its financial remedy. However, she said she wanted the complaint to be heard at stage three so the Council could fully understand the extent of the mismanagement of the case. She also said the Council had failed to send Y’s most recent EHC Plan to Y’s nursery school and that despite emailing the Service, was told they could not deal with the enquiry.
29. The Council sent the EHC Plan to the nursery in June 2019. The nursery confirmed it had already received a copy from Mrs X.
30. In June 2019 the Council wrote to Mrs X and said it would not consider her complaint at stage three. It said it had fully upheld the complaint and that a stage three committee meeting would not produce a different outcome. In July 2019 Mrs X brought her complaint to the Ombudsman. She said the Council had not properly addressed her complaint or done anything to remedy the difficulties she experienced.

The Council’s response to enquiries

31. The Council said it had experienced a significant increase in demand for EHC needs assessments alongside having a higher number of EHC Plans to maintain. That resulted in it not completing EHC assessments and Plans within statutory timeframes. It said it had made several improvements to the Service which included:
• A recurring investment of £350k to recruit five additional SEND Officers, two Senior SEND Officers and a Team Manager.
• Introduced a Quality Assurance Framework (June 2019) to ensure robust oversight of all EHC assessment requests and EHC Plans.
• Developed a new SEND Support Service Operating Model (October 2019).

My findings

Complaint a) the Council failed to complete the EHC Plan review within the statutory timeframe.

32. The Council has already accepted fault for the delay in responding to Mrs X’s initial request for an EHC needs assessment, and in issuing the EHC Plan. It has financially remedied Mrs X for the lack of educational provision for Y and for additional nursery costs. That remedies any injustice caused.
33. As Y was under five her EHC Plan should be reviewed every six months. The Council reviewed Y’s EHC Plan in January 2019- that was six months after it issued the previous Plan. The Council was not at fault.
34. Following a review of an EHC Plan the Council has eight weeks to issue the final amended plan after sending the amendment notice. The Council has not provided a copy of the notice of amendment. However, it issued the final amended EHC Plan on 20 February 2019 a month after the review. The Council was not at fault.

Complaint b) the Council failed to attend Y’s EHC Plan review meeting

35. Although the Council is responsible for ensuring that reviews of EHC Plans are completed within statutory timescales, it can delegate the responsibility of reviewing the Plan to educational providers.
36. In January 2019, Y’s nursery arranged the EHC Plan review meeting; it did not invite the Council. Feedback from Mrs X’s advocate indicates the nursery was not confident in the review process or what it needed to do. In response to my enquiries the Council acknowledged the nursery was ill equipped to carry out the meeting and accepted that it should have attended. In these circumstances its non-attendance was fault. The Council held a second review the following week which was attended by a Council case officer. Therefore, that fault did not cause a significant injustice.

Complaint c) the Council failed to share Y’s amended EHC Plan with her nursery

37. The Council issued the amended EHC Plan in February 2019. The Council did not share Y’s EHC Plan with the nursery until June 2019. Although that was fault, it did not cause Y an injustice. There was no significant change in provision, therefore Y’s educational needs were met. The nursery attended the EHC Plan review meeting therefore were aware of the changes that were made. It also told the Council it had received a copy from Mrs X.
38. Although there was not an injustice to Y, the Council issued practice guidance in 2019 that directs officers to send final EHC Plans to educational providers. That service improvement will prevent a reoccurrence of the fault.

Complaint d) the Council failed to communicate with her in a timely manner

39. Mrs X said there were delays in the Council responding to her. The Council’s records show four telephone conversations with Mrs X between May 2018 and September 2018. Given Mrs X initially contacted the Service in June 2017 and the Council is still working with the family, I’d have expected to see more extensive records of the Services involvement with the family such as emails, written letters and meeting minutes. In the absence of evidence provided by the Council and on the balance of probabilities, the Council was at fault for failing to communicate with Mrs X in a timely manner.
40. Mrs X said she emailed the Service in May 2019 to say that Y’s nursery had not received a copy of Y’s most recent final amended EHC Plan; however, it did not deal with this and directed her to a generic emails address.
41. The Council’s failure to deal with Mrs X’s request was fault. It left Mrs X unclear which Council officer was responsible for overseeing Y’s EHC Plan. In addition, the Council was responsible for sending the amended final plan to the nursery; therefore, it should have been proactive in ensuring that was done.
42. In isolation that fault would not have caused Mrs X a significant injustice, but as she had already met with the Council to discuss her complaints about the Service, it caused further avoidable annoyance and frustration.

Complaint e) the Council failed to make improvements to its Statutory Assessment and Review Service as promised in its stage two complaint response

43. Mrs X complained the Council had not made improvements to its early year’s pathway for pre-school children. It is not for the Ombudsman to say what changes to its services the Council must make. It is for the Council to decide how it designs and provides its services.
44. The Council made service improvements after Mrs X’s complaint. It introduced these from June 2019 onwards. These improvements included: operational guidance that sets out communication with parents; the steps the Council must take once it has received a request for an EHC needs assessment; additional funding and, quality assurance of the statutory assessment process. The Council’s website provides information for support available for pre-school children with special education need. The Council was not at fault.

Complaint f) the Council failed to consider Mrs X’s complaint at stage three

45. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
46. The Council’s policy states that the senior complaints officer decides whether a complaint needs to be taken to stage three of its procedure, for consideration by the Council’s committee.
47. Despite Mrs X’s request, the Council said it would not consider Mrs X’s complaint at stage three because it had been fully upheld at stage two. It said that the Council had already made service improvements and recommendations therefore it was unlikely that consideration at stage three would bring a different outcome.
48. The Council has provided reasons for its decision. There was no fault in how the Council made that decision.

Agreed action

49. Within one month of my final decision the Council has agreed to:
• Write to Mrs X and apologise for the avoidable frustration caused when it failed to send Y’s EHC Plan to the nursery on-time and for how it dealt with her request for service. It should also ensure Mrs X is provided with the named case officer responsible for Y.
• Remind staff in the Service about the level of communication it expects with parents and carers.
• Remind staff in the Service of the need to maintain comprehensive records for the children and young people it is working with.

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Final decision

50. There were faults in how the Council communicated with Mrs X and dealt with her daughter’s EHC Plan review. The Council has agreed to my recommendations therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman