Summary: Ms X complained the Council delayed in issuing her daughter’s Education, Health and Care Plan and that it failed to complete a child in need assessment. The Council was at fault for delays and failure to complete an assessment. It has agreed to apologise, complete an assessment, and pay Ms X £450 to recognise her frustration, uncertainty and time and trouble. The delay did not cause Ms X’s daughter an injustice.

The complaint

1. Ms X complained the Council:
1. Delayed in issuing her daughter, Y’s, Education Health and Care Plan (EHC Plan) following annual review.
2. Issued an amended final Plan in November 2018, despite agreeing it would finalise the plan after it had received additional reports.
3. Failed to respond to her request for a Child in Need assessment in December 2018.
4. Failed to provide details of the Council’s mediation service in January 2019.
5. Failed to provide the detailed response from the Head of Service as promised in the Council’s 2019 stage three complaint response.
6. Failed to make service improvements following her 2018 complaint about the Council’s Special Educational Need Assessment and Review (SENAR) Service.
7. Failed to include information from additional reports she had commissioned within the amended EHC Plan issued April 2019.
8. Refused to complete an Educational Psychologist assessment as part of the 2018 review process.
2. She said the Council’s faults meant that Y was without the educational provision she needed for a full school year. She said she had to repeatedly chase the Council about its timeliness and had to correct the EHC Plan. She said the faults by the Council and need to complain have put her to avoidable time and trouble, stress and frustration.

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What I have investigated

3. I have investigated the complaints a) to f). The reasons for not investigating complaints g) and h) are explained at the end of my decision statement.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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).
7. 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)
8. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
9. 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)
10. 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

11. I discussed the complaint with Ms X and considered the Council’s complaint responses.
12. I made enquiries of the Council and considered its response and evidence provided.
13. I referred to the relevant law and statutory guidance including the ‘Special educational needs and disability code of practice:0 to 25 years’ Department for Education, January 2015 (the Code).
14. Ms X and the Council both had the opportunity to comment on my draft decision. I considered their comments before completing my final decision.

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What I found

Education, Health and Care Plans

15. A child with special educational needs (SEN) 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.
16. EHC Plans must be reviewed yearly at a minimum. Within four weeks of a review, the Council must send the child’s parents a decision notice saying whether the EHC Plan is to continue; needs changes or if it is to end.
17. If the EHC Plan needs amending, the Council must “start the process of amendment without delay”. It must send the parents a copy of the existing plan and a notice explaining the proposed amendments and the evidence for these. The child or parents then have 15 days to comment on, or to request a meeting to discuss the changes in the EHC Plan.
18. The Council must issue the amended final EHC Plan within eight weeks of the amendment notice. When the Council issues the final amended Plan, it must tell parents about their right of appeal and the timeframes for doing this.

Child in Need

19. Local authorities have a duty to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child's needs. (Children Act 1989, section 17). A disabled child is a child in need.
20. Local authorities have a positive duty to take reasonable steps to identify children in need within their area and, when identified, to undertake an assessment of those needs.
21. If a parent of a child in need requests it, the local authority must assess whether the parent has support needs and, if so, what those needs are. This is known as a parent carer assessment. The local authority may combine the assessment with an assessment of the needs of the disabled child. The assessment must consider:
• whether the parent has needs for support in relation to the care which he or she provides or intends to provide;
• whether the disabled child cared for has needs for support;
• whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and
• whether or not to provide those services. (Children Act 1989, sections 17ZA–17ZF)
22. As part of their services to families, councils must offer carers of disabled children short breaks from caring to help them look after their children at home. (Children Act 1989, Schedule 2, paragraph 6)
23. The Council’s policy states that its disabled children service assesses disabled children with the most complex needs. For disabled children with less complex needs, the Council passes the referral to its early help service.

Background

24. Ms X’s daughter, Y, is profoundly deaf. She has had an EHC Plan since she was two. Y attended a specialist nursery and primary school for children who are profoundly deaf.
25. Mrs X previously complained about the Council’s SENAR service in 2018. It upheld her complaint and as part of its remedy agreed to make service improvements.

What happened

26. In May 2018, the Council reviewed Y’s EHC Plan. Y was four years old. In the September, Ms X contacted the Council as she had not received the amended EHC Plan. The Council subsequently issued the amendment notice and draft EHC Plan on 25 September 2018. Ms X said she did not receive that until the start of October.
27. On receipt, Ms X contacted the Council and asked for an extension to the 15 days to respond to the draft Plan, as she had arranged for additional specialist reports. She said she was likely to receive the reports by the end of October.
28. The Council agreed to delay issuing the final amended Plan. However, it then issued the amended final Plan on 20 November 2018 before it had received Ms X’s feedback.
29. Ms X contacted the Council who accepted it had sent out the final amended EHC Plan in error. It agreed to reissue a draft Plan once it received the additional reports. Ms X sent these to the Council on 3 December 2018. At the same time, she asked for a Child in Need assessment. The Council did not respond to that request.
30. On 18 January 2019, Ms X emailed the Council asking for information on its mediation service. The Council said it did not receive that email. She sent a further email two working days later. In that she said she would need the contact details of the mediation advisers if “the revised plan was not forthcoming”.
31. The Council sent an email apologising for the delay. It issued the notice of amendment on 30 January 2019 and the draft EHC Plan on 5 February 2019.
32. On 7 February 2019, Ms X complained to the Council. She made several complaints about the Council’s SENAR Service including its delay in issuing Y’s ECH Plan
33. The Council met with Ms X in March 2019 to discuss her complaint and the content of the EHC Plan. There are no minutes of that meeting. In that meeting the Council told Ms X she needed to self-refer to the Council for a social care assessment which she did.
34. The Council’s screening service contacted Ms X to discuss the referral. The case record shows that Ms X wanted adjustments to the home; that she had no extended family support and that they were struggling to support Y with social activities outside of school. The screening service discussed the case with the Council’s disabled children’s service. That said profound deafness did not meet the threshold for their service. The screening service decided Y did not meet the threshold for a child in need assessment because:
• Y did not meet the threshold for complex and significant needs; and
• It did not assess her as having any unmet social care needs, as her needs were known and being met by various services.
35. The Council issued the final amended EHC Plan in April 2019. That Plan was the same Plan it had issued in November 2018. The Council provided Ms X information about her right to appeal.
36. Ms X asked the Council to escalate her complaint to stage three because the Council had failed to make the amendments to the EHC Plan as agreed in the meeting in March. She also said the Council’s meeting had not addressed all her complaints.
37. The Council sent its final response to Ms X on 18 June 2019. It said the Head of Service would provide a response within ten days to clarify remaining issues but that it had reissued the EHC Plan from November 2018, because the changes that Ms X had asked for were not consistent with the EHC review meeting held the previous year. The Council said it had planned to consider the additional changes Ms X had asked for at the annual review. However, that review had not been held because Ms X had asked for mediation.
38. Ms X and the Council had mediation on 4 July 2019. The Council held Y’s annual EHC Plan review on 12 July 2019. The Council issued a notice of amendment on 31 July 2019.
39. In August 2019, Ms X complained to the Ombudsman. In addition to her original complaints she said the Council had not provided a written response from the Head of Service and that it had failed to make improvements to services as promised in its stage three complaint response in 2018.
40. On 6 September 2019, Ms X provided comments on the draft EHC Plan and sent these back to the Council. The Council issued a further notice of amendment in December 2019. Emails between the Council and Ms X at the time show the delay in issuing the amended plan was because of long-term sickness.
41. The Council issued Y’s final amended Plan on 10 January 2020. That Plan named a new mainstream school for Y to attend but said that Y’s current school continued to meet her needs until ready for transfer.

Council’s response to enquiries

42. The Council said that after Ms X complained in 2018 it reviewed its administrative processes and created a generic email box to monitor work on a weekly basis, to ensure it was sending responses within statutory timeframes.
43. It said it was also in the process of reviewing the SENAR Service. As part of that review the Council was considering its interagency working; the coordination of assessments; parental engagement with the SENAR Service and satisfaction and the quality of EHC Plans.
44. It accepted it had issued the EHC Plan in November 2018 despite telling Ms X it would delay. That was because it had recruited an additional officer to work on amendments to EHC Plans and they were not aware of the agreement to extend the time offered to Ms X to make representations.
45. It accepted it did not respond to Ms X’s request for a Child in Need assessment, but that Ms X would be “aware that she needed to make a self-referral to social care as she had made a previous referral”. It accepted it had not made that clear in writing.
46. It accepted the Head of Service had not responded to Ms X’s outstanding issues as promised in its stage complaint three response. It said the final response had not been copied to the Head of Service and that the Council was in mediation with Ms X.

My findings

Delays in the statutory assessment process

47. After the annual review in May 2018, the Council did not issue the notice of amendment until September 2018. It should have started the amendment process “without delay”. Failure to do so was fault.
48. The Council agreed to consider the additional reports Ms X had commissioned and reissue a draft amended EHC Plan. It received the reports on 3 December 2018 and issued the final amended Plan on 23 April 2019. Although there was some delay in its consideration of these reports, the Council was not bound by statutory timeframes as it had already issued the final EHC Plan that Ms X could have appealed. The Council was not fault.
49. The Council held Y’s most recent annual review on 12 July 2019. It sent the amendment notice on 31 July 2019. The final amended EHC Plan was due by 25 September 2019. After Ms X’s comments, the Council decided to issue a further notice of amendment instead of a final Plan. The Council should have issued that amendment notice by 25 September 2019 (as that was the date the final Plan was due) and the final Plan within a further eight weeks. The Council issued the final amended Plan on 10 January 2020. That was a delay of seven weeks. That was fault.
50. Although the delays in issuing the final Plan delayed Ms X’s right to appeal, Ms X has not appealed at any stage. However, the delays have caused Ms X frustration and she has gone to avoidable time and trouble chasing up the Council.
51. The delays did not cause a significant injustice to Y. Y received the provision as set out in her EHC Plan and this provision did not change throughout the time of Ms X’s complaint. Although the most recent Plan names a different school, it states her current school meets her needs.

The Council’s decision to issue the amended final plan in November 2018.

52. In November 2018, the Council issued the final Plan despite telling Ms X it would wait until it had received the additional reports from her. In isolation, I would not consider that fault. However, taken alongside the delay in issuing the Plan and Ms X’s communication with the Council, I consider it fault. That caused Ms X additional frustration and avoidable time and trouble.

The Council’s failure to respond to and complete a Child in Need assessment for Y.

53. The Council accepts it did not respond to Ms X’s email asking for a Child in Need assessment. That was fault. That fault has caused Ms X an injustice as the Council should have responded to her request for information.
54. Following the meeting in March 2019, Ms X self-referred to the Council. It decided Y was not eligible for an assessment by its children with disabilities team. It did not refer Y to its early help service either.
55. As a disabled child Y was entitled to some form of assessment from the Council. It failed to complete that, that was fault. In addition, the case record of Mrs X’s discussion with the Council indicates that Mrs X was asking for support for herself. The Council should have identified that and offered a parent carer assessment. Its failure to do that was fault.
56. The Council failed to take minutes of the meeting held with Mrs X in March 2019. The Ombudsman would expect the Council to keep a record of this meeting as it was held in response to Ms X’s complaint. Failure to do so was fault.

The Council’s failure to provide details of its mediation service in January 2019.

57. Ms X emailed the Council asking for the mediation contact details on 18 January 2019. The Council said it did not receive that email. Within two working days, Ms X sent a follow up email. That said she only wanted the mediation service details if there was to be ongoing delay in issuing the final EHC Plan. The Council responded to that email and apologised for the delays.
58. The Council did not deliberately withhold the mediators contact details or delay Ms X’s access to mediation. The Council was not at fault.

The Head of Service’s failure to provide a detailed response to Ms X’s complaints as promised in the Council’s complaint response.

59. The Council accepted that it did not send an explanation from the Head of Service to address Ms X’s outstanding areas of complaint. That was fault. That has added to Ms X’s ongoing frustration with the Council and meant she had to go to the avoidable time and trouble of bringing her complaint to the Ombudsman.

Failure to make service improvements following her complaint about the administrative processes of the SENAR Service.

60. The Council says it has started a review of its SENAR Service. It also provided evidence of how it had introduced new administrative processes to help it track work. The Council was not at fault.

Agreed action

61. Within one month of my final decision, the Council has agreed to:
• Apologise to Ms X and pay her £250 to remedy the uncertainty and distress caused by the delays in issuing Y’s EHC Plan; for issuing the EHC Plan in error and for failing to respond to her request for a Child in Need assessment.
• Pay Ms X £200 for the avoidable time and trouble in bringing the complaint to the Ombudsman after the Council failed to send the Head of Service response and to recognise that this is the second instance Ms X has complained about the Council’s SENSAR Service.
• Complete an assessment of Mrs X’s and Y’s social care needs.
• Remind staff of the need to keep contemporaneous records of all meetings.

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Final decision

62. I have found fault causing injustice and made recommendations to remedy the injustice caused. As the Council has agreed with my recommendations, I have completed my investigation.

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Parts of the complaint that I did not investigate

63. We cannot investigate late complaints unless we decide there are good reasons. Ms X’s complaint about the lack of educational psychologist assessment as part of the annual review in 2018 predates her first complaint to the Council. She did not bring the complaint to the Ombudsman within twelve months of becoming aware of it. Therefore, I have not investigated it.
64. Ms X has the right to appeal to Tribunal if she is unhappy about the content of the EHC plan.

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Investigator's decision on behalf of the Ombudsman