Summary: Mrs D complains about matters relating to her son’s Education, Health and Care Plan. There was fault by the Council. It should apologise and make a payment to Mrs D to acknowledge the uncertainty caused.

The complaint

1. Mrs D complains that:
1. The Council failed to amend her son’s Education, Health and Care plan (EHC plan) following the February 2018 review and the Council did not provide all the provision she requested.
2. Her son has been out of school since late 2019 due to a dispute with the school. She complained the Council failed to consider a safeguarding report she made about the school’s actions.
3. The Council has adopted an unreasonable blanket policy not to make amendments to EHC plans unless the child is moving into a new phase of education.
4. The Council failed to hold an early review of her son's EHC plan after initially agreeing it would do. The review was due in February 2019. The Council agreed to carry out the review early in October 2018, but it was cancelled without reason.
5. The Council failed to carry out a social care assessment of her son’s needs that she requested in February 2018.
6. There was a lack of inter-agency co-ordination in relation to reviews of EHC plans. She stated key people were not invited and reports were not circulated ahead of EHC plan review meetings.
7. The Council failed to follow the correct policy and acted unreasonably when it imposed contact restrictions after invoking its unreasonable customer policy.

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What I have investigated

2. I have investigated parts c) to g) and some of parts a) and b). I explain at the end of this statement why I have not investigated all of parts a) and b).

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
4. 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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. 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)
9. 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

10. Another investigator spoke to Mrs D about her complaint. I have considered the notes of that discussion, the information Mrs D sent, the Council’s response to our enquiries and:
• the Special Educational Needs and Disability Code of Practice 2015 ("the Code")
• the Special Educational Needs and Disability Regulations 2014
• the Special Educational Needs (Personal Budgets) Regulations 2014
• Statutory Guidance: Working Together to Safeguard Children
11. Some of the events Mrs D complains about occurred more than twelve months before she complained to us. However, I have exercised my discretion to consider them as she complained to the Council in September 2019.
12. In addition, in complaining to the Ombudsman Mrs D raised a number of new issues that were not included in her September 2019 complaint to the Council, including some about events which happened after her complaint. The law says that, before investigating a complaint, we must normally be satisfied the Council knows about the complaint and has had an opportunity to investigate and to reply. I have again exercised discretion to consider these matters as we contacted the Council in December 2019 and it asked us to consider Mrs D’s complaint. I have not investigated any matters that occurred after 1 November 2019. The length of our investigation was affected by the coronavirus pandemic.
13. Mrs D and the Council had an opportunity to comment on two draft decision statements. I considered any comments received before making a final decision.

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What I found

Special educational needs

14. 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.
15. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
16. 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.

Annual reviews

17. The Code says councils must review a child’s EHC plan every 12 months. These annual reviews consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan.
18. Councils are responsible for ensuring annual reviews take place, but they ask schools to convene them. Schools must invite a local authority SEN officer and a local authority social care representative, and circulate any information, at least two weeks before the meeting. Following the review, the school must send a report of the meeting to everyone invited within two weeks. The report must set out recommendations on any amendments required to the EHC plan. (SEND Code of Practice 2015, paragraph 9.176)
19. The Code says that within four weeks of the review, the council must decide whether it proposes to keep the EHC plan as it is, amend it, or cease to maintain the plan. It must then tell the child's parent and the school its decision.

Personal budgets and direct payments

20. A personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC plan, where the parent or young person is involved in securing that provision. The personal budget regulations say parents and young people can request a personal budget when the draft EHC plan is being prepared, reviewed or re-assessed.
21. A personal budget may be provided in the form of direct payments to the young person or their parent, for them to purchase the support themselves. It is also possible for the funds to be held by the council or school, which will then commission the support specified in the plan, or for a third party to manage the direct payments on behalf of the parent or young person. Details of a proposed personal budget should be included in section J of the draft EHC plan.
22. Councils must consider a request for a personal budget and must prepare one, unless disaggregation of funds for a personal budget:
1. would have an adverse impact on other services which the local authority provides or arranges for children and young people with an EHC plan which the authority maintains; and/or
2. would not be an efficient use of the authority’s resources.
23. Councils may only make direct payments in respect of the SEN provision specified in an EHC plan and if the authority is satisfied that:
1. the recipient will use them to secure the agreed provision in an appropriate way; and
2. the recipient will act in the best interests of the child when securing the proposed agreed provision.
24. Where a local authority decides not to make direct payments it must tell the child’s parent its decision in writing and give the reasons for its decision. Parents have a right to request a review of the decision. Councils must consider any representations made and inform the parent in writing of the outcome of the review, giving reasons.

Child safeguarding

25. The Children Act 1989 says councils have a duty to safeguard and promote the welfare of children within their area who are in need, and to promote their upbringing by their families, by providing a range and level of services appropriate to those children’s needs. (Children Act 1989, Section 17)
26. Councils must take reasonable steps to identify children in need within their area and, when identified, to undertake an assessment of those needs. This Section 17 child and family assessment will determine whether the child is a child in need and, if so, which services to provide and what action to take. Where the outcome of the assessment is continued children’s social care involvement, the council should agree a plan of action (known as a “child in need plan”).
27. Local authorities also have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child's welfare. (Children Act 1989, Section 47)

Unreasonable customer policy

28. The Council has a policy to limit contact from customers who it considers are behaving unreasonably, or who are unreasonably persistent because of the frequency or nature of their contact. The policy allows the Council to, for example, limit the customer to communicate only with one named member of staff and refuse to register and process further complaints or requests about the same matter. The Council will usually issue a warning to the customer before invoking the policy. The customer can request a review of the decision at the point the policy is invoked.
29. The Council’s corporate complaint policy says at the initial “resolution” stage the Council would contact the complainant within five working days to discuss the complaint and agree an action plan to resolve it. If no action plan is agreed, the complainant can go to the review stage.

What happened

30. Mrs D's son, M, has physical and learning disabilities and has received SEN provision since 2009. His February 2017 EHC plan, developed when Mrs D lived in another council’s area, detailed his SEN provision at a mainstream primary school. This included:
• 1:1 support and individual programmes and strategies
• Daily physiotherapy and fine motor skills programmes "ideally overseen or guided by a physiotherapist and occupational therapist (OT)"
• Daily speech and language activities, designed and delivered with advice from a speech and language therapist (SALT) and twice weekly teaching from a SALT
• Access to a daily sensory diet
• 1 hour visits every 6 weeks with support staff
• Multi-disciplinary team meetings every 6 weeks to review and update targets
• 10 x discretionary 1 hour sessions
• 4 x physiotherapy sessions per year
• Half termly OT visits
• Support for self-care and appropriate equipment for eating and toileting
• Relevant ICT equipment
31. The family moved to the Council’s area in 2017. In October 2017, the Council confirmed it would carry out its first review of M’s EHC plan in February 2018. M started at an independent secondary school (“the School”) in November 2017.
32. The annual review was held on 8 February 2018. It was attended by a Council officer, a representative of the School and a physiotherapist. I have not seen the School’s report of the review. In response to my enquiries, the Council said it did not recall receiving one and sent the officer’s hand written notes. Mrs D says that at the meeting it was agreed to amend the EHC plan, assess M’s social care needs and consider providing overnight stays at the School. The Council should have written to Mrs D by 8 March 2018 to confirm whether it had decided to amend the EHC plan. I have seen no evidence it did so.
33. The Council issued a final EHC plan on 29 March 2018 naming the School and with the same SEN provision as before. The plan said no personal budget had been requested and “an assessment of need would be completed using the Resource Allocation Tool [to] consider whether a supported local youth club under Short Breaks provision is suitable for M.”
34. At this point Mrs D had a further opportunity to appeal to the Tribunal. Mrs D was unhappy with the plan and has sent emails that show there was some discussion about meeting with the Council to discuss it. Mrs D had queried the purpose of a meeting and the officer replied that the appeal process could be followed. Mrs D says she missed the deadline to appeal partly as she was waiting for this meeting to be arranged and partly due to a family bereavement.
35. Mrs D was concerned the School was not delivering aspects of M's provision, such as SALT or OT, and remained unhappy with the provision in the plan. In August 2018 Mrs D asked the Council to hold an early annual review; she said this had been agreed at the February meeting. The Council contacted the School and suggested a date for the end of September 2018. However, as it was the school holidays, the School was closed and unable to respond. The Council’s records show a proposed 27 September 2018 review meeting was cancelled the day before as it had not been possible to issue papers two weeks in advance of the meeting.
36. I have seen that the School prepared a report dated 16 October 2018 for an annual review to be held on 31 October. There is also an OT report dated October 2018. This meeting did not go ahead, but the Council has no correspondence about arrangements for an October annual review. The Council says it may be that the review did not go ahead as M’s case was moved to a different team following Mrs D’s request.
37. Throughout this period, Mrs D was in frequent contact with the Council about provision for M. On 5 October 2018 the Council sent Mrs D a warning letter that it would invoke its unreasonable customer policy if she continued to:
• “Make unreasonable demands of officers or setting unreasonable timescales for responses.
• Make unreasonable requests in relation to who should deal with a complaint, enquiry or request.
• Send a high volume of emails (sometimes to multiple recipients).
• Add new complaints, requests or enquiries.
• Make many complaints, requests or enquiries about different issues in succession.
• Adopt a ‘scattergun’ approach; pursuing complaints or requests with the authority and at the same time, with legal services/the Ombudsman.”
38. In February 2019 Mrs D asked the Council to carry out a Section 17 assessment of M. I have seen no evidence of a response to this request.
39. The annual review was held on 13 March 2019. It was attended by a Council officer, representatives of the School, and a SALT. Mrs D has sent emails showing she initially was unable to attend but the Council and school wished to go ahead as Mrs D said she would send a representative. In the event, she attended the meeting.
40. The papers for the review show M had a learning support assistant, specialist teacher support, three hours per week 1:1 numeracy and literacy support, OT input and weekly SALT sessions. He had support for his mobility, assistance with using the bathroom and a fatigue management plan. The papers included the School’s October 2018 report which said no changes were needed to the outcomes or strategies in the EHC plan.
41. The OT was unable to attend but her updated report was provided. This said M needed more help with personal care and therefore an alternative toilet system was required in the School. The OT report was also sent to the Council in May 2019.
42. The March 2019 annual review meeting notes say Mrs D would send comments on the EHC plan to the Council. There was a discussion about the frequency of the multi-disciplinary team meetings as they were not being held every six weeks; there was to be an ICT review; there is no reference to social care. The notes say Mrs D asked for a personal budget but did not wish to receive direct payments.

Mrs D’s complaint to the Council – September 2019 to January 2020

43. Mrs D complained to the Council on 26 September 2019 that it had a blanket policy to not amend EHC plans except when the child was at a transfer point. She did not raise any other issues. I have seen no evidence the Council responded.
44. Mrs D approached the Ombudsman in October 2019 but it was too soon for us to investigate as she had not completed the Council’s complaint procedure.
45. On 7 November 2019, the Council wrote to Mrs D invoking its unreasonable customer policy due to the amount of correspondence it was receiving from her. It said if Mrs D needed to contact the Council, she should use a single point of contact and it would reply once a week. There was no reference to whether Mrs D could still make a complaint.
46. Mrs D emailed the Council on 06 December 2019 asking for education to be provided to M. This was followed up by contact from her husband. The Council replied on 20 December 2019 asking for their preference for a school for M.
47. The Council told us in December 2019 that Mrs D’s complaint had not progressed through its procedure. It noted Mrs D was subject to the unreasonable customer policy. We asked the Council whether it would deal with Mrs D’s complaint. In January 2020 it asked us to investigate.
48. Mrs D appealed the decision to invoke the unreasonable customer policy. Her appeal was upheld in January 2020, as it was considered too much time had passed between the October 2018 warning letter and the November 2019 ruling.

School attendance and safeguarding concerns October 2019 to November 2019

49. In October 2019, the School set out a new intimate care plan for M. Mrs D was unhappy with it as it proposed a staff member to provide the care that she felt was inappropriate.
50. On 31 October 2019, the School told Mrs D that M could not attend the next day as there was no one to provide intimate care. Mrs D said she would send M to school and suggested some other staff members. These staff were not named in the intimate care plan, so the School said they were unable to provide the care. The next day M went to school but was not allowed entry. The Council asked Mrs D to collect him. There were discussions between Mrs D, the School and the Council. The School emailed Mrs D that day ending M’s placement with immediate effect.
51. Mrs D says she made a safeguarding referral to the Council about the School’s actions. I asked the Council if it had received a referral, it sent its correspondence with Mrs D but there is no evidence of a referral. I have seen Mrs D emailed the School to say she considered there were safeguarding concerns.

My findings

a) The Council failed to amend her son's EHC plan following the February 2018 review of his EHC plan and the Council did not provide all the provision she requested.

52. There was no report of the February 2018 annual review. It was the School’s responsibility to issue a report so this is not fault by the Council.
53. I have seen no evidence the Council wrote to Mrs D about the decision not to amend the EHC plan. This is fault and meant Mrs D had no opportunity to appeal before the final EHC plan was issued. This injustice was reduced as the final EHC plan was issued on 29 March 2018, giving Mrs D a further right to appeal. She says she missed the deadline and had not realised the plan did not set out all the provision she had asked for at the annual review. That is unfortunate, but it is not an injustice caused by fault by the Council.
54. Mrs D says M was not receiving all the of the SEN provision she considered necessary. It is not for the Ombudsman to say what provision is appropriate for a child. I have compared what is set out in M’s 2018 EHC plan with the provision that is described in the reports I have seen from the School. These show M was receiving 1:1 support and input from a SALT and OT in line with his EHC plan. It appears the multi-disciplinary team meetings were not taking place every six weeks, which is fault, but it is unclear when they were held and I have seen no evidence that their frequency caused any injustice to M. Other than the frequency of the multi-disciplinary team meetings, I have seen no evidence that M was not receiving the SEN support set out in his plan.
55. Mrs D says the Council did not provide the alternative toilet system that the OT recommended. In response to my enquiries the Council said the toilet had not been installed as the School had withdrawn M’s placement. Responsibility for installing the toilet system would have rested with the School. In my first draft decision I found I had seen no evidence of when the Council considered the OT’s recommendation and decided to commission or fund the toilet system. I therefore considered there was delay by the Council, causing uncertainty to Mrs D.
56. In response the Council sent further evidence about what happened. This showed that following the OT’s recommendation to the Council in May 2019, the OT was in discussion with the School and Mrs D about the need for M to trial the toilet. Following this, in September 2019 the School agreed to fund its installation. I have therefore changed my view and do not find there was any delay or drift by the Council.
57. Mrs D says she had asked for a personal budget from the previous council she had lived in and that the March 2018 EHC plan was therefore wrong to say one had not been requested. Personal budgets may only be requested when EHC plans are being reviewed. I cannot say what was agreed at the February 2018 annual review as there is no report. I therefore have no evidence of fault by the Council.
58. However, even if the Council had wrongly omitted her request for a personal budget, I am not persuaded this would have caused significant injustice to Mrs D or M. A personal budget delivers the SEN provision set out in the EHC plan. I have found M was receiving this provision. If Mrs D had been unhappy with the provision, she had an opportunity to appeal to Tribunal in May 2018.
59. There is evidence Mrs D requested a personal budget at the March 2019 annual review. The Council has sent me its subsequent correspondence with Mrs D about the matter. It has provided Mrs D with the education costs and the costs associated with the occupational therapy. The evidence shows the Council has considered Mrs D’s request. These discussions are ongoing, but that is not fault. The personal budget regulations and Code do not set any timescales for the approval of a request, although details of the request should be included in the next EHC plan.

b) Her son has been out of school since late 2019 due to a dispute with the school. She complained the Council failed to consider a safeguarding report she made about the school's actions.

60. I have seen evidence of what happened on 31 October and 1 November 2019, and of Mrs D’s concerns about the Schools actions. However, I have seen no evidence a safeguarding referral was made. I therefore cannot find fault with the Council about the way it dealt with this.

c) The Council has adopted an unreasonable blanket policy not to make amendments to EHC plans unless the child is moving into a new phase of education.

61. I realise Mrs D was unhappy with the Council’s decision not to amend M’s EHC plan in 2018. She says an officer told her this was because EHC plans were only amended at key points of transition. I have no record of this conversation and cannot make a finding about what was said. In response to my enquiries, the Council said it followed the Code, which says plans should be amended at transfer points or when a child’s needs change. I have seen no evidence the Council has a blanket policy and I do not find fault.

d) The Council failed to hold an early review of her son's EHC plan after initially agreeing it would do so. The review was due in February 2019. The Council agreed to carry out the review early in October 2018, but it was cancelled without reason.

62. Mrs D says at the February 2018 annual review it was agreed to hold the next one early. As there is no report for this review, I cannot confirm this; the Council has sent an officer’s hand written notes but these make no reference to an early annual review.
63. However, the Council did agree to arrange an early annual review when Mrs D requested this in August 2018. I can see that attempts were made by the Council to set this up in September 2018. It was then cancelled at short notice. Whilst this was frustrating for Mrs D, it is not fault.
64. I have seen there was possibly a further date being arranged in October 2018 by the School, but the Council has no records of this. It is unclear why the meeting did not take place and I understand Mrs D’s frustration with that. However, I cannot find fault with the Council as the Code says it is the school’s responsibility to convene an annual review. In addition, the March 2019 review was held within twelve months of M’s EHC plan being issued. There was therefore no fault.

e) The Council failed to carry out a social care assessment of her son’s needs that she requested in February 2018.

65. Mrs D says she asked for a Section 17 assessment of M at the February 2018 annual review. I cannot confirm this as there is no report of the review and there is no reference to it in the officer’s hand written note. However, the EHC plan issued in March 2018 says there will be a Resource Allocation Tool assessment (rather than a full Section 17 assessment) to determine whether M should have short breaks. There is evidence that Mrs D formally requested a Section 17 assessment in February 2019.
66. The Council says these assessments have not been carried out due to difficulty engaging effectively with Mrs D. In July 2020 it told us it was in the process of arranging for the Children with Disabilities Social Care Team to do a full family assessment. In November 2020 it said this could be done once Mrs D agreed to the assessment.
67. Whilst I appreciate COVID-19 has generally meant assessments cannot be done in 2020, I find it was fault by the Council not to have started a Section 17 assessment in 2019, after Mrs D’s request. However, I cannot say that this caused M to lose out on short breaks, as I cannot say what services the assessment would have determined he needed. I consider the delay in carrying out a child and family assessment has caused Mrs D uncertainty, as she does not know what social care provision M may have been entitled to.

f) Mrs D complained there was a lack of inter-agency co-ordination in relation to reviews of EHC plans. She stated key people were not invited and reports were not circulated ahead of EHC plan review meetings.

68. It is the School’s responsibility to make arrangements for annual reviews, to invite attendees and to circulate papers. If this was not done it would not be fault by the Council. I have seen that NHS, local authority and school representatives attended the annual reviews. I therefore find there is no evidence of a lack of inter-agency coordination.
69. Mrs D told us council officers had meetings without her involvement and as a result she could not raise issues with the Council or comment on what was said. The Council is entitled to hold meetings between officers and professionals. It is not required to invite Mrs D to all meetings, even where M's needs are being discussed. There is no fault.

g) The Council failed to follow the correct policy and acted unreasonably when it imposed contact restrictions after invoking its 'unreasonable customer' policy.

70. There is no evidence of fault in the Council’s warning letter to Mrs D of October 2018. This was issued in line with its policy due to the amount of correspondence the Council was receiving from her. I have seen that Mrs D continued to maintain very frequent contact during 2019.
71. Mrs D appealed the Council’s decision to invoke its policy in November 2019. The appeal was upheld due to the length of time between the warning letter and invoking the policy. There was therefore fault with the November 2019 letter, but this was remedied by the appeal in January 2020.
72. The Council told us it would not consider Mrs D’s complaint as she was subject to the unreasonable customer policy. I find it was fault for the Council not to reply to Mrs D’s complaint in September 2019. At the point she complained, she was not subject to the policy and the Council should have replied at its resolution stage within five working days. I also consider it could have progressed the complaint to its review stage if necessary. However, I note that Mrs D’s complaint at that point was only about the Council’s policy on amending EHC plans, so I consider the injustice in not receiving a reply to be limited.
73. Mrs D says she was then prevented from complaining further in December 2019. I do not find fault here. I have seen Mr and Mrs D’s emails to the Council in December 2019. The Council replied to their requests for education for M, which was the main subject of the emails. It said it was trying to identify a new placement and asked them to express a preference. In addition, it would not have been fault for the Council to have not progressed any complaint made between 7 November 2019 and January 2020, as she was at that point subject to the unreasonable customer policy.

Summary of findings

74. There was the following fault by the Council:
• It did not notify Mrs D of its decision not to amend the EHC plan in March 2018. However, the injustice was reduced as Mrs D had a further right of appeal in March 2018 when the final EHC plan was issued. (paragraph 53)
• It did not start a Section 17 child and family assessment after Mrs D’s formal request in February 2019. This has caused Mrs D uncertainty, as she does not know what social care provision M may have been entitled to. (paragraph 67)
• There was fault when the Council invoked its unreasonable customer policy, but this was remedied by Mrs D’s appeal in January 2020. (paragraph 71)
• It failed to reply to Mrs D’s complaint in September 2019. However, I consider the injustice was limited. (paragraph 72)

Agreed action

75. Within a month of my final decision, the Council has agreed to:
• Apologise to Mrs D and M
• Pay Mrs D £200 to acknowledge the uncertainty caused by fault

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Final decision

76. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Parts of the complaint that I did not investigate

77. In relation to part a) of Mrs D’s complaint. I have not investigated the Council’s decision not to amend the EHC plan, or the plan’s content. This is because rights of appeal exist specifically to challenge the provision set out in an EHC plan and any decision not to amend it.
78. I have considered the Council’s actions following the 2018 annual review and whether the provision in the plan was made prior to November 2019.
79. In relation to part b) I cannot investigate the actions of a school. However, I have investigated whether the Council considered a safeguarding report Mrs D made.
80. I have not investigated the provision of education to M after 1 November 2019. This is because the law says that, before investigating a complaint, we must normally be satisfied the Council knows about the complaint and has had an opportunity to investigate and to reply. I have not exercised discretion to consider this matter as it was ongoing at the point Mrs D approached us and the Council had not had any opportunity to consider a complaint about it.

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Investigator's decision on behalf of the Ombudsman