Summary: There was fault in how the Council carried out its reviews of Miss C’s son’s Education Health and Care (EHC) plan. The Council has agreed to make payments to remedy the distress this caused.

The complaint

1. The Complainant, whom I shall refer to as Miss C, complains about how the Council has dealt with her son’s Education Health and Care (EHC) plan. I shall refer to Miss C’s son as D. Miss C says say’s the Council’s handling of the case has caused her and D a great deal of distress and has negatively impacted D’s education.
• The Council forced her to go to tribunal in 2013, to get D to the school she wanted. Miss C also complains about the actions of a solicitor representing the Council at the hearing.
• The Council delayed issuing D’s EHC Plan in early 2017.
• The Council carried out a review of the plan in September 2018 but did not issue a final plan, so Miss C was unable to appeal this at tribunal.
• The Council started a new review in January 2019, but no final plan has been issued.

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What I have investigated

2. I have investigated matters relating to the delays to the issuing of D’s EHC Plan in 2017 and how the Council managed the review process in 2018 & 2019.

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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 investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. 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)
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. As part of the investigation, I have:
• considered the complaint and information provided by Miss C; and
• considered information provided by the Council; and
• spoke with Miss C about her complaint.
10. I have also sent a draft version of this document to both parties and invited their comments.

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What I found

EHC assessments and plans

11. Children or young adults with complex needs might need an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and the statutory duty to ensure special educational provisions in the EHC plan is made available.
12. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
13. Councils must review an EHC Plan every twelve months. Reviews must focus on the child’s progress towards targets in the Plan and on what changes might need to be made to help the child achieve those outcomes. Councils can require a school to convene and hold a review meeting on their behalf. The Special Educational Needs and Disability Code of Practice says reviews are generally most effective when led by the school. The council must be invited to attend a review meeting.
14. Councils must decide whether to maintain the EHC Plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The council should issue the final EHC Plan or decide not to amend the EHC Plan at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments.
15. Decisions to amend or cease a plan can be appealed to the SEND Tribunal.

What happened

Background

16. Miss C has a son, D, who is a young adult with Special Educational Needs (SEN) which include including Asperger’s Syndrome, Tourette’s Syndrome, Sensory Processing Disorder, and anxiety. D is therefore subject to an EHC Plan.

2017 review

17. In late 2016, the Council started the review process for D’s EHC Plan, with the final version of the plan due to be issued on 3 January 2017.
18. Miss C and D specified a preferred college for D to attend and the Council sent a draft version of the plan to them for their comments. The Council say the college delayed in responding to this request, until 27 January.
19. The Council say that the delay by the college meant the final version of D’s EHC Plan was not issued until 31 January, some 28 days late.
20. Miss C appealed some of the wording of D’s EHC Plan to SEND. The Council subsequently issued a final amended plan on 12 October 2017.

2018 review

21. In February 2018, the Council started the annual review process for D’s EHC Plan again. The Council shared information with D’s college, for it to complete amendments and updates prior to the annual review meeting in March.
22. The Council did not receive the completed paperwork back from the college, so contacted it again it in August 2018. The College had not been able to send the information to the Council, due to technical issues with the Council email account.
23. The Council say it continued to chase the college for the information until November 2018 but did not receive the information due to issues with the College email account.

2019 review

24. In January 2019, after the Council had still not received the requested information from D’s college, it started a new review of D’s EHC Plan. The Statutory Assessment Team led on the assessment.
25. In April 2019, D’s college contacted the Council to inform it that since January, D’s attendance had decreased and in February, D had stopped attending altogether.
26. The Council say many unsuccessful attempts were made by the college, to hold an EHC Plan review meeting with Miss C and D. In May, a meeting was arranged but Miss C and D cancelled the meeting on the day.
27. The Council say a further meeting was arranged on 20 June, but this was also cancelled at the request of Miss C and D. A further meeting was offered in August, but this was declined.
28. Records show that Miss C was not communicating with the Statutory Assessment Team directly. This was due to previous issues Miss C had with officers on that team, which do not form part of this complaint.
29. On 12 August, the Council wrote to Miss C and offered dates for a meeting. The Council said that as Miss C had requested that no involvement from the existing casework officer and team leader, these roles were reassigned.
30. The Council say it made several attempts to contact Miss C in the days after sending the letter but was unable to reach her on the telephone, and neither Miss C nor D attended the two meetings.
31. A meeting in early September was offered, which Miss C felt she could not attend. The Social Worker and Team Leader subsequently made a home visit, during which Miss C expressed a preference for home tuition for D, paid for with a personal budget.
32. A full review meeting was arranged for the 17 September. However, before the review could be discussed a carbon monoxide alarm was activated and the meeting had to be cancelled. The Council say that during the meeting D stayed in his room.
33. The meeting was re-arranged for the 26 September. The Council say that during the meeting Miss C stated that she did not wish to discuss the contents of the EHC Plan, as she did not consider that there needed to be any amendments.
34. Miss C expressed a preference for home tutoring, which she wanted to arrange herself. During the meeting the Council and Miss C discussed the option of a personal budget to enable home tuition.
35. The Council subsequently sent Miss C a personal budget application form and asked her to complete it within three weeks in order for the panel to consider it at their next sitting. The Council explained that if Miss C was unable to complete the form in time, the panel would be sitting again on three further occasions before the end of the year.
36. After the Council did not receive a response it wrote to Miss C in February. It encouraged Miss C to complete the application form as this would be needed to arrange home tuition and enable the Council to issue a final EHC Plan.
37. The Council say that, due to Miss C not wishing to work with the existing casework officer, it had allocated a new officer to support the family.
38. The Council has told the Ombudsman that Miss C informed the families Social Worker that she will not work with members of the assessment team, nor will she work with the Additional Needs Team, who specialise in providing packages for young adults, such as D.

Analysis

2017 review

39. Miss C complains about the length of time the Council took to review D’s EHC Plan in 2017.
40. The Council accept that there was a delay in issuing the final plan of approximately 1 month. This if fault

2018 review

41. Miss C complains that no review of D’s EHC Plan took place in 2018.
42. The Council started the review process in February 2018. However, no draft or final EHC Plan was ever issued, as the required information from D’s college was never received.
43. The information was sent to the college in January, but the Council did not contact it again for more than seven months.
44. The Council say there were technical issues with the school sending it the information. However, it accepts that this should not have halted the issuing of D’s final EHC Plan. This is fault.
45. This fault meant that the Council failed to complete a review and issue a final EHC Plan in 2018.

2019 review

46. Miss C complains about how the Council managed the review it started in January 2019.
47. The evidence I have seen satisfies me that the Council sought to engage with Miss C and D with a view to completing D’s EHC review.
48. The evidence shows that the Council went to some considerable effort in arranging meetings with the relevant parties and make accommodations for Miss C and D to attend.
49. When the meeting did go ahead Miss C told the Council she wanted home tuition for D and that she wanted the Council to arrange direct payments to pay for this.
50. The evidence I have seen satisfies me that the reason the Council were unable to complete the review, and issue the plan was because Miss D failed to return the documents needed to arrange direct payments, to pay for home tuition.
51. However, whilst I am satisfied that the Council has provided sufficient evidence in relation to this element of the complaint, I do have concerns with how the Council recorded its communication between it and Miss C.
52. Whilst the Council did provide the Ombudsman with copies of emails demonstrating that phone calls were made, it has not provided any formal case notes detailing calls made to Miss C.

Injustice and remedy

53. Having found fault with how the Council has dealt with D’s EHC Plan reviews, I have considered what, if any, injustice this caused to Miss C and D.
54. I find that the Council’s failure to undertake its review in a timely way in 2017, led to a relatively short delay in issuing D’s final EHC Plan. This caused distress to the family as they were left uncertain about the outcome of the review, and what impact this would have on D’s education. It also meant that the families appeal rights were delayed.
55. I find that the Council’s failure to undertake its review in 2018 led to further distress and uncertainty for the family.
56. An injustice such as distress is unlikely to be remedied by a payment, so we often seek a symbolic amount to acknowledge the impact of fault on a complainant. In this case I consider a payment of £100 to be appropriate for the short delay in 2017 and a further £300 for the Council’s failure to carry out a review in 2018.

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Agreed action

57. The Council has agreed, that within one month of the date of the Ombudsman’s final decision, it will:
• Apologises to Miss C and D for the faults identified above.
• Offer to pay the family £100 for the distress caused by the delay in issuing D’s final EHC Plan in 2017.
• Offer to pay the family a further £300 for the additional distress caused by the Council’s failure to carry out an assessment in 2018.
• Remind staff of the importance of maintaining accurate records of telephone calls with parents of children with SEN.

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Final decision

58. I have concluded my investigation on the basis that there was fault leading to an injustice.

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Parts of the complaint that I did not investigate

59. I have not investigated matters relating to the EHC Plan in 2013. This is because Miss C has appealed this at tribunal, so it is out of the Ombudsman’s jurisdiction. Furthermore, this element of Miss C’s complaint is late.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman