The Ombudsman's final decision:
Summary: Mrs F complains the Council delayed finalising an EHC Plan for her son, D, and proposed an inappropriate date for the annual review. The Council has accepted there was delay and has apologised, which is a suitable remedy for the injustice caused.
- Mrs F complains the Council delayed finalising an EHC Plan for her son, D, and proposed an inappropriate date for the annual review.
The Ombudsman’s role and powers
- 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)
- 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)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- 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)
- 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.
How I considered this complaint
- I spoke to Mrs F about her complaint and considered the information she sent, the Council’s response to my enquiries and:
- The Children and Families Act 2014
- The Special Educational Needs and Disability Code of Practice January 2015 (“the Code”)
What I found
Special educational needs
- A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
- Some children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. When carrying out an EHC needs assessment, councils must gather advice and information from relevant professionals such as educational psychologists.
- The Code says the process of EHC needs assessment and EHC plan development must be completed as soon as practicable and must take no more than 20 weeks.
- Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
- The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
- The annual review of an EHC plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan.
- The Code says the first review must be held within 12 months of the date when the final EHC plan was issued, and then within 12 months of any previous review.
- Mrs F’s son, D, has a diagnosis of autistic spectrum disorder and a developmental disorder which affect his ability to learn. He has significant problems with social communication and anxiety. D started at a mainstream primary school in 2015 with one to one support. He had challenging behaviours which resulted in a number of fixed term exclusions.
- Mrs F requested an EHC needs assessment on 21 May 2018 and visited several specialist services and alternative providers. The Council obtained advice from educational psychology, occupational therapy, speech and language therapy.
- The school allocated D a full-time key worker to provide one to one support from September 2018.
- The Council issued a draft EHC plan on 11 September 2018 (Version 1). Mrs F says it was badly written, did not properly describe D’s needs or specify the support he needed. She also says information was missing, in particular the fact that D was receiving one to one support and a report from a playcare service he used. She contacted the Council and school and raised concerns that the one to one support may not be in the plan due to a problem with its funding.
- The Council issued a revised version of the draft plan on 21 November 2018. Mrs F says it still did not contain the correct information. She also said that the wording in the plan had lost the meaning intended by the educational psychologist and speech and language therapist. She asked for a multi-agency meeting to discuss the plan. A further draft (Version 3) was issued in advance of the meeting on 28 November 2018. Further changes to the plan were agreed at the meeting.
- The final EHC plan was issued on 19 December 2018. Mrs F refers to this as Version 4. The plan said D needed one to one support. It also outlined the strategies which should be used to help D achieve his outcomes, such as teaching approaches, individual teaching sessions, small group work and support from speech and language therapy. Mrs F remained dissatisfied with the plan as the playcare service report and an updated report reflecting the success of D’s one to one support were still missing.
- The Council submitted D’s support package to its SEN panel in January 2019, but it could not be considered as the playcare service report had not yet been received. The panel agreed the provision on 1 February 2019. It then asked the school to submit a request for funding.
- Mrs F made a formal complaint to the Council on 18 March 2019 that the final EHC plan had still not been issued since she requested the assessment in May 2018.
- The Council sent a final EHC plan (Version 5) on 26 March 2018 which named the school. Mrs F remained unhappy as it continued to have some missing information and did not describe D’s condition correctly. She was also concerned that the annual review date of 7 December 2020 was too long from D’s original assessment.
- The Council amended the plan and issued a revised version dated 18 April 2019 (Version 6). It said the annual review would take place 12 months from the date of the final plan, i.e. April 2020. The school’s request for funding was approved on 2 May 2019.
- The Council responded to Mrs F’s complaint on 16 May 2019. It apologised for the delay in issuing the final EHC plan, which had been caused by a lack of capacity in the service. The Council said that the information in the previous draft plans and the December 2018 final plan had been sufficient to enable provision to be put in place for D whilst further amendments were being made to the plan. The Council referred to the final EHC plan as “version 3” as it did not number the various versions of the draft plans.
- Mrs F was dissatisfied and on 3 June 2019 she asked how to take her complaint forward. She said the delays had been caused by a lack of care by the Council and the final plan was now out of date because it had taken so long to complete. She complained about the Council not acknowledging there had been six versions of the plan, as this diminished the time and effort she had put in to correcting it.
- The Council sent its Stage 2 response on 25 June 2019. It said it had asked the school to convene an annual review before the end of the usual 12-month period. Mrs F remained dissatisfied and said she wanted the annual review to be held in September 2019 because if there had been no delays the final EHC plan would have been issued by October 2018 and the review due by October 2019.
- Mrs F approached the Ombudsman in July 2019. D’s annual review was held on 27 September 2019 following Mrs F’s request.
- After Mrs F requested an assessment on 21 May 2018, the final EHC plan should have been issued by 5 October 2018. The Council has accepted it was fault that it was not issued until 19 December 2018 and has apologised for this.
- Mrs F says the Council’s poor administration meant she had to make many changes to the plan and this caused delay. In response to my draft decision, she said D’s needs were only met because she had amended the plan and had argued for the one to one support to be put in place.
- I acknowledge the Council was trying to be helpful in working with Mrs F on various versions of the draft plan to ensure Mrs F was happy with it before it issued a final EHC Plan. However, the statutory deadlines and the government's intentions are clear; the whole EHC plan process should be completed as soon as practicable or within 20 weeks. A reason for this is to ensure that the right to appeal to the Tribunal is not delayed, as it is in the child’s best interests to settle their education promptly.
- It is therefore not fault for a council to issue an EHC plan a parent disagrees with. The Council should have done so, so that Mrs F could have gone to mediation or appeal if she remained dissatisfied.
- Mrs F complains about the annual review dates stated in the final EHC plan. There was no fault by the Council here. The Code says an annual review must be held 12 months after the date of the issue of the final EHC plan. Whilst the plan had been delayed, it was not fault for the Council to say the review dates were December 2019 and April 2020.
- I do not consider that D was caused significant injustice by the delay in issuing the final EHC plan from October 2018 to December 2018. This is because, whilst there was no final plan, he was receiving the full time one to one support at school that was later set out in his plan. I therefore consider an apology to be a sufficient remedy for the injustice caused. I note the Council has already apologised to Mrs F.
- There was fault by the Council when it delayed issuing a final EHC plan. I am satisfied the Council has already taken action to remedy the injustice caused. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman