Summary: Mrs X complained about the way the Council handled her son’s Education Health and Care Plan. We found the Council delayed finalising the Plan which led to Mrs X’s son being in inappropriate education for longer than necessary. We recommended a remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs X, said that the Council failed to properly consider her complaint about the Council’s delay in ensuring her son B, had a final Education Health and Care Plan (EHCP) that could be appealed.

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The Ombudsman’s role and powers

2. 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)
3. 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).
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. 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 have discussed the complaint with the complainant and considered the complaint and the copy correspondence from the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. Mrs X and the Council had an opportunity to comment on my draft decision. I considered Mrs X’s comments before making a final decision.

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What I found

Education, Health and Care (EHC) plans

8. Under the Children and Families Act 2014, when an Education, Health and Care assessment is completed by a local authority and it shows a need for special educational provision, the local authority must prepare and maintain an Education, Health and Care (EHC) plan.
9. Council’s must carry out annual reviews of children’s EHC plans. Councils have four weeks to decide whether to amend the EHC Plan. If a Council does decide to amend, it has a further eight weeks to issue the amended versions, which parents can then challenge via the SEND Tribunal if dissatisfied.

What happened

10. Mrs X noticed her 3 year old son, B, was not developing the same as his peers from 2017 and he was non verbal. Mr and Mrs X thought that B may be autistic, and this diagnosis was confirmed in February 2018.
11. An educational psychologist recommended a placement at a mainstream school with a specialist unit. The Council completed B’s final EHC plan in July 2018, naming a mainstream school, with 30 hours of teaching assistant support. This was if Mr and Mrs X decided not to defer entry to primary for a year. Mr and Mrs X preferred a special school for B, but said the EHC plan was finalised too late for them to apply for a reception place in a special school. Mrs X said they accepted the school place because if they did not, he would be out of school completely.
12. Mrs X said B started showing signs of anxiety in August 2018, particularly when going to bed.
13. B started part time at a mainstream primary in September 2018. However, Mrs X asked a local special school outreach team to assist her son’s school as she considered the mainstream school did not have the expertise to meet her son’s needs. The special school suggested B would benefit from being with similar peers and more specialist staff.
14. In January 2019 the Council started a review of B’s EHC plan.
15. Mrs X asked the Council to review his current placement. She wanted B to transfer to a mainstream school with a specialist unit for communication and interaction needs (COIN). She felt this would best suit B’s needs because he would benefit from specialist provision, being with similar peers and would also benefit from being with neurotypical peers in the mainstream strand.
16. An educational psychologist assessed B. She said the gap between B and his peers was not so pronounced at this stage, and it may be best for him to change provision at a later stage. But Mrs X said this assessment was only for an hour and she challenged the comment about the gap between B and his peers. She said that the gap was significant, and B was non verbal.
17. The Council noted B’s school said it was finding it difficult to provide the communication and sensory needs support B should have. The review report stated B’s current provision and placement was not appropriate. There was discussion at the review meeting about COIN units, and Mr and Mrs X were advised to visit 3 schools with COIN units. They found one school they preferred.
18. The Council’s Partnership Resources Forums agreed B’s change in placement to a High COIN unit on 27 February 2019. At this point the Council should have issued a draft revised EHC plan naming a different type of school, as this had been agreed. In its response to my enquiries the Council accepts it should have done this by 8 March 2019. Mrs X would then have had an opportunity to comment on the draft within 15 days and the Council should have sent the final EHCP by the end of March. As the Council did not do this Mrs X could not appeal.
19. The Council contacted six schools with COIN units in March 2019. The school that Mrs X preferred was full. The other schools were also full, or they were not suitable or too far away in Mrs X’s view. The Council received the final response from the schools at the end of April 2019.
20. By May 2019 Mr and Mrs X said that B was showing signs of extreme anxiety. They contacted Child and Adolescent Mental Health Services (CAMHS).
21. In June 2019 the Council agreed to contact non maintained independent schools (NMI) as well as other maintained schools. It contacted School G, an NMI which Mrs X visited.
22. On 3 July 2019 CAMHS confirmed its assessment to the Council that B was suffering with anxiety, particularly in loud and uncontrolled situations and where he could not communicate his needs effectively. The consultant recommended that B “may benefit from a specialist provision either in a special unit attached to a mainstream school where he could have normal role models or in an autistic specific provision in order to help reduce his anxiety levels.” The consultant asked the Council to provide an update regarding securing specialist provision for B. I have not seen evidence the Council responded to this letter.
23. On 20 August 2019 Mrs X complained to the Council regarding its delays finding more suitable provision for B. She said the Council failed to communicate with her and had not progressed matters despite receiving the consultant’s letter about B’s anxiety being due to his provision,
24. The Council responded to Mrs X’s complaint on 16 September 2019. It confirmed school G had offered a place and that the NMI moderation panel would need to consider this. It accepted it had taken longer than usual to find a school place for B. It also agreed it had not responded promptly to Mrs X. The Council confirmed that there had been a number of staff changes and therefore she did not have a consistent point of contact. The Council apologised and said:
• It was actively working to improve the SEND Service. This included how it worked with children, and their parents or carers, and the timeliness and quality of its communication.
• It said it was actively seeking to identify an appropriate school for B and would confirm the outcome of the panel by 20 September 2019.
• It would communicate any further change in B’s case officer in a timely manner.
25. At the NMI moderation panel in September 2019, the panel decided it should not fund the place at school G. The minutes of the decision refer to the school G as being for pupils with profound autism and “transport costs high.” The panel’s decision advised the Council should consult three other schools for children with complex social and communication needs, one of which focused on pupils with a diagnosis of autism. However, two of the schools said they were full and the final one did not respond. Meanwhile B started reception again at from September 2019, as Mr and Mrs X and the school felt that he would not manage in year one.
26. In October 2019 Mrs X complained and stated she wished to appeal the Council’s refusal to fund school G. She said the Council had now told her the EHC plan had not been finalised, 10 months after it had started. This meant she could not appeal.
27. The Council responded to Mrs X’s complaint. It explained it was consulting with other schools and it must give a set time for them to respond. It said that a caseworker had left, leading to some delay. It confirmed it would send a draft EHC plan the next day. Mrs X would then have 15 days to comment. The Council said it would take steps to ensure that clear handover procedures were adhered to and that staff were identified to cover caseloads of a vacant post.
28. The Council sent the draft EHC plan to Mrs X on 4 October 2019. Mrs X returned it within 15 days with her comments. She says that the plan was poor and that she had to effectively rewrite it herself. She said she then heard nothing about a final plan.
29. In October 2019 B’s consultant paediatrician advised the Council that B’s emotional wellbeing had visibly deteriorated and he needed “to settle in an educational setting with small class sizes to reduce his anxiety levels brought on by noise and need[ed] specialist support.”
30. On 17 November 2019 the Council’s NMI moderation Panel considered Mrs X’s request to place B in school G. The panel decided that the Council should explore a setting for children with complex social communication needs and/or severe learning difficulties.
31. It appears the Council then accepted school G was suitable and available and that it should fund the placement. B started at school G in early December 2019.
32. The Council sent Mrs X a final EHC plan in January 2020. Mrs X said that this still had errors and out of date information which needed to be corrected. The Council revised this and the final plan was confirmed on 20 January 2020.
33. Mrs X says that B settled into the school well between December 2019 and March 2020 when schools closed due to Covid 19. Mrs X says B’s anxiety has lessened and his communication improved.
34. The Council replied to Mrs X’s stage two complaint in January 2020. It accepted it had delayed in finding suitable appropriate provision for B.  It also accepted it delayed finalising the revised EHC Plan. However, it considered that B was accessing education during this time, although this was not fully appropriate. The Council said it took steps to find more appropriate provision. The Council also said its internal procedures regarding NMI provision were not as fit for purpose as the Council intended. It said it would review the process. In order to remedy the injustice to B and Mrs X the Council said it had considered the Ombudsman’s guidelines on remedies. The guidelines refer to remedy payments of:
• Up to £300 for delay
• Up to £300 for time and trouble in the pursuit of the complaint
• Up to £1000 for distress and anxiety (taking into account the vulnerability of the complainant or subject of the complaint)
• Up to £600 for each month of missed provision.
35. The Council offered Mrs X the following remedy:
• £800 in recognition of the fact that B’s provision was not fully appropriate
• £500 in recognition of the impact of this on B given his acknowledged vulnerability
• £150 in recognition of delay
• £150 in recognition of the time and trouble taken in the pursuit of your complaint.
• It also offered an additional payment to say sorry to B, equivalent to 10% of the financial remedy, towards an iPad for B.
36. Mrs X rejected this offer as she did not accept it was sufficient in view of all the Council’s errors, its delays and her time and trouble. Most significantly she says the long term impact on her son’s mental health was not properly considered. She referred to B’s consultant paediatrician’s letter which advised the Council that his emotional wellbeing had visibly deteriorated. She also referred to another school, school Z which the Council had mentioned in October 2019, but had not contacted. The school itself had confirmed that a place may have been available in June or July 2019. As this was the correct setting in Mrs X’s view and nearer, she said the Council had failed to refer her to this more appropriate school. B now had to travel a long distance each day which should not have been necessary.

Analysis

37. The Council clearly failed to progress the EHC Plan as it should. There was an avoidable delay of around 10 months here. This was fault. I cannot say if there had not been fault here that it would definitely have led to an appropriate school place earlier, as the Council contacted a number of schools, but no places were available, or they were not acceptable to Mrs X. However, I accept that this caused Mrs X uncertainty as she cannot know whether any appeal she may have made would have been successful.
38. The Council accepts that one of the contributing factors to delay was that there were several changes of case officer, and some gaps between officers. Mrs X said that there were at least four changes and that she often had no response at all from anyone. The delay and poor communication here was fault causing injustice. The Council has apologised and says that it has taken steps to address this. I have asked the Council to provide evidence of the steps it has taken as part of the remedy.
39. Mrs X complained the Council should have identified and sought a place at school Z. The Council said that at the time a place may have been available at school Z, it was seeking COIN unit schools, in accordance with the yet to be revised EHC plan, which Mrs X agreed. It was not until November 2019 that the Council reviewed the setting and decided schools for complex social communication needs and/or severe learning difficulties should be approached. By this time school G had offered a place. So I cannot say that even if there had not been fault in terms of delay progressing matters that B missed out on a place at school Z.
40. The Council offered a total of £1600 in view of its delays in finalising the EHCP. It said it considered the Ombudsman’s guidance on remedies and indicated how it had calculated this. I consider the Council should increase this to £2500. While I note the Council offered £800 for B’s provision not being fully appropriate, this equates to £100 per month. I do not consider this is an adequate amount. It appears B did not progress within the provision and this is evidenced by his repeating reception. I have also recommended an increase to the amount offered for time and trouble, as it appears Mrs X had to spend a significant amount of time chasing the matter, and dealing with the EHC Plan.
41. I have considered Mrs X’s complaint that the incorrect provision has had a significant long term impact on B. The Ombudsman does not consider claims for negligence and damages. That is a matter for the courts. However, we consider a token amount to remedy impact up to £1000. I have noted all Mrs X’s comments and considered the consultant’s letter. Taking these into account I consider the Council’s offer of £500 for the impact on B is appropriate.

Agreed action

42. I recommended, and the Council has agreed, that within 6 weeks of my decision the Council will pay Mrs X £2750. This is calculated as follows:
• £200 per month for the period B was not in fully appropriate education. This is 8 months from the end of March 2019 to December 2019, excluding school holidays, £1600 in total.
• £500 for the impact on B
• £250 for Mrs X’s time and trouble
• £150 for delay.
• £250 as a gift to B to apologise. This is be used towards the purchase of an iPad.
43. The Council says it has made service improvements to address the officer handover arrangements and cover for vacant posts. Within 6 weeks of my decision, the Council should provide evidence of the service improvements it has made.

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Final decision

44. I have found fault by the Council causing injustice. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman