Summary: Mr and Mrs X complain the Council delayed in reviewing Ms Y’s EHCP and failed to provide her with full time education and SEN support, resulting in missed provision and distress. The Ombudsman finds the Council at fault and recommends it provides an apology; pays £500 for time and trouble; £500 for distress; £2000 for missed provision and, takes action to prevent recurrence.

The complaint

1. Mr and Mrs X complain the Council delayed issuing a final Education, Health and Care Plan “EHCP” for their daughter, Ms Y, and failed to provide full time education and SEN support. They say Ms Y has lost out on provision and they have suffered distress and inconvenience.

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What I have investigated

2. I have investigated the complaint as summarised above. At the end of this decision I have set out why I have not investigated other matters Mr and Mrs X raise.

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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 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)
5. 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)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
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)

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How I considered this complaint

8. I spoke to Mrs X and I reviewed documents provided by Mr and Mrs X and the Council. I gave Mr and Mrs X and the Council the chance to comment on a draft of this decision and I considered the comments provided.

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What I found

Education, Health and Care Plan; annual review process

9. An Education, Health and Care Plan (“EHCP”) is a legal document that describes a child’s special educational, health and social care needs. The council is responsible for meeting those needs.
10. The SEND Code of Practice, issued by the Department for Education, provides statutory guidance for councils.
11. Councils must review an EHCP at least every 12 months.
12. Within 2 weeks of the meeting the school must provide a report setting out any recommended amendments to the EHCP to the council.
13. Within four weeks of the review meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
14. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views and make representations on the content.
15. When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
16. Where the council does not agree the suggested changes it may still issue the final EHCP.
17. In any event the council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the draft plan. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

What happened

18. Ms Y is 18. She has Down’s syndrome, global development delay and autism. She also has a severe anxiety disorder and post traumatic stress disorder.
19. Ms Y attended School A, a special school for children with severe and complex needs from September 2013. In March 2016, Ms Y’s placement at School A broke down and she stopped attending, although she remained on roll.
20. The Council issued a final EHCP on 31 August 2017 naming School A as Ms Y’s educational placement. However, the EHCP says Ms Y will have a bespoke programme designed to engage her in activities outside the home and prepare her for adulthoood. This could be delivered by Provider A and was to include structured reintegration into a learning environment that was flexible and part time initially.
21. Provider A supported Ms Y from September 2017. The Council says this ended as Mr and Mrs X felt it was not meeting Ms Y’s needs. Mrs X says the placement broke down as it was not suitable for Ms Y. The correspondence shows Ms Y’s last day with Provider A was at the start of February 2018.
22. The Council met with Mrs X on 7 February 2018 to discuss concerns about Provider A and future provision. At this time the Council knew Ms Y was not in school or receiving alternative provision.
23. Ms Y’s Annual Review was due to take place on 7 March 2018. However, the Council says this was rescheduled to 17 May 2018 based on Mr and Mrs X’s availability.
24. Mr and Mrs X say the Council did not identify any suitable placement or alternative provision for their daughter following the Annual Review. However, they found a charity that provided alternative provision; Provider B.
25. The Council says it funded provision at Provider B from May 2018. This was initially for two days per week with an increase to three days per week when Ms Y was able.
26. The Council issued a draft EHCP on 6 August 2018. I note this says Ms Y currently attends Provider B for three days per week, with an increase to four days available when she is able.
27. On 7 August 2018 Mr and Mrs X told the Council they were unhappy with the draft EHCP. However, they agreed for the Council to delay issuing a final EHCP until the Autumn term with Provider B had unfolded and the Council had more information about the support Ms Y needed.
28. The Council says Provider B could not provide the necessary information to complete the EHCP, due to limits on staff. The Council says Mr and Mrs X agreed for it to wait and amend the EHCP after the March 2019 Annual Review. Mr and Mrs X deny this.
29. The correspondence provided by the Council shows Mr and Mrs X had been seeking full time provision for Ms Y from September 2018.
30. In a meeting on 31 January 2019 the Council agreed Ms Y was ready for five days’ provision.
31. The Council says it funded five days provision from February 2019, to allow Ms Y’s attendance to increase when she was ready. However, Provider B did not have the staff to provide full time provision.
32. The Council offered further provision to run alongside Provider B, but Mr and Mrs refused these options.
33. When I spoke to Mrs X she explained the provision offered was either unsuitable, such as a busy school environment or, it was impractical for Ms Y to attend given the location and timings.
34. The Council held Ms Y’s Annual Review Meeting on 27 March 2019.
35. The Council says Provider A did not give it necessary documents following the Annual Review until May 2019.
36. In correspondence of 7 May 2019 and 11 June 2019 the Council recognised the need to secure five days’ provision for Ms Y and that the provision it had offered had not been suitable.
37. On 4 July 2019 Mr and Mrs X complained to the Council about its delay in finalising the EHCP and the lack of full time provision for Ms Y.
38. The Council issued a draft EHCP on 24 July 2019.
39. On 29 July the Council responded to the complaint. It explained:
• Provider B was unable to offer more than three days’ provision. It had offered further provision alongside Provider B however Mrs X felt these were not suitable.
• The Council understood the Annual Review of February 2018 “had not been well attended or facilitated and therefore did not fully support the review of Ms Y’s progress, needs or provision.  The Council had acknowledged and apologised for this during a meeting last year.”
• Mrs X had agreed to delay amending the EHCP until Christmas 2018 to await further information from Provider B. Provider B was then unable to provide information due to limits in staffing.
• It agreed to amend the EHCP following the Annual Review in March 2019. 
• It received documents from Provider B in May 2019 and used these to write the draft EHCP.
• Mrs X agreed to extend the time taken to amend the EHCP to March 2019. It notes the delay from March 2019, in part due to wating for documents from Provider B.
• It apologises for its part in the delay from May 2019.
40. Mrs X responded to say they had not agreed a delay to March 2019.
41. Mrs X contacted the Council again in October 2019 to ask for a final response.
42. The Council confirmed its previous response was its final response and Mr and Mrs X could contact the Ombudsman.
43. The Council issued a final EHCP in November 2019 naming education other than in school. The EHCP says Ms Y will have a bespoke programme designed to engage her in activities outside the home and prepare her for adulthoood. Ms Y will have five days of structured and meaningful activities delivered by Provider B and Provider C.
44. In its response to enquiries the Council accepted there was a delay from May 2019 to November 2019 in finalising the EHCP. The Council apologised and offered £500 for time, trouble and inconvenience.

Findings

45. We cannot investigate late complaints unless we decide there are good reasons. Mr and Mrs X contacted the Ombudsman in October 2019, more than 12 months from the date problems arose. However, I will exercise discretion to investigate their complaints from February 2018. This is because any injustice was ongoing from this date and it was reasonable for Mr and Mrs X to await resolution through the EHCP process before finally complaining to the Council and then the Ombudsman.

EHCP process

46. The Council did not follow the statutory timescales in reviewing Ms Y’s EHCP following the May 2018 Annual Review. I acknowledge Mr and Mrs X agreed at least some extension to the statutory timeframes. However, this was only because they considered the draft inaccurate. The Council accepts failings in the review meeting itself and it has not adequately explained why it did not have accurate and up to date information as needed to issue the final EHCP, without having to wait for more details from Provider B. I find the Council delayed and then failed to issue any final EHCP following the May 2018 Annual Review. This is significant fault.
47. The Council accepts it delayed in the EHCP process following the March 2019 Annual Review. While I note there was a delay between March and May due to Provider B, the Council accepts it delayed in the process from May 2019 until it issued a final EHCP in November 2019. This is significant fault.
48. The Council’s delays caused the family distress and uncertainty.

Provision

49. Under the 2017 EHCP, the Council had to provide a bespoke educational and SEN programme for Ms Y, initially part time but increased as necessary.
50. The Council knew Ms Y had no provision from February 2018 however it did not arrange or put in place any provision until May 2018. This is fault.
51. From May 2018 Ms Y received three days’ provision with Provider B. On 31 January 2019 the Council accepted Ms Y should have 5 days’ provision. While I note the Council offered further provision alongside Provider B, Mr and Mrs X say this was not suitable or accessible to Ms Y. And, the correspondence shows the Council recognised, at least initially, that it had not offered suitable provision. On balance I find the Council failed to ensure Ms Y had five days’ provision from February 2019 to November 2019. This is fault.
52. Mr and Mrs X were put to significant time and trouble in seeking to resolve the problems experienced. Ms Y missed three months’ provision from February to May 2018 and 2 days’ provision per week from February 2019 to November 2019. Ms Y and her family have also suffered distress and uncertainty.

Agreed action

53. To remedy the injustice set out above I recommend the Council carry out the following actions:
54. Within one month:
• Provide Mr and Mrs X with a written apology for the faults identified;
• Pay Mr and Mrs X £500 for time and trouble;
• Pay Mr and Mrs X £500 for the distress and uncertainty experienced by Ms Y and them;
• Pay Mr and Mrs X £2000 for Ms Y’s loss of education and SEN provision and;
55. Within three months;
• Take action as necessary to prevent recurrence of the faults identified and inform the Ombudsman of the actions taken.
56. The Council has accepted my recommendations.

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Final decision

57. I find the Council at fault because it significantly delayed in the EHCP review process and failed to meet Ms Y’s needs as set out in her EHCP. The Council has accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

58. I did not investigate Mr and Mrs X’s complaints that arose prior to February 2018 as more than 12 months has passed; these were not part of the July 2019 complaint to the Council and; these mostly relate to what happens in schools, which is outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman