The Ombudsman's final decision:
Summary: Ms X complained about the Council’s actions in relation to her son, Z’s, Education, Health and Care (EHC) Plan. She also complained the Council delayed carrying out an assessment to determine if Z and his sibling were children in need. The Council was at fault when it delayed finalising Z’s EHC Plan, did not issue an amendment notification after his annual review and did not provide all the support in his Plan. The Council should make Ms X a payment to acknowledge the injustice this caused her and Z. The Council was at fault when it delayed in carrying out a child in need assessment, but this did not cause Ms X an injustice.
- Ms X complained the Council:
- delayed in finalising her son, Z’s, Education, Health and Care (EHC) Plan, dated March 2018;
- failed to issue an amendment notice following the annual review held in January 2019 and delayed in issuing a final amended EHC Plan;
- failed to ensure Z was assigned a buddy under the provisions of his EHC Plan; and
- failed to carry out a child needs assessment under s17 of the Children Act 1989 or respond to her request for one which she made in May 2019.
The Ombudsman’s role and powers
- 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)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- 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)
- 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.
How I considered this complaint
- I considered documentation sent to me by Ms X and gave her the opportunity to speak to me about her case.
- I made enquiries of the Council and considered its response. This included case notes, copies of emails between the Council and Ms X, complaints correspondence and a copy of the child and family assessment.
- Ms X and the Council had an opportunity to comment on my draft decision. I considered these before I made a final decision.
What I found
Children with special educational needs
- A child with special educational needs may have an EHC Plan. This sets out the child’s needs, what arrangements should be made to meet them and where or how the child will be educated. The EHC Plan is set out in sections. The Ombudsman cannot make changes to the sections about special educational provision or name a different school. Only the SEND tribunal can do this.
Timescales for EHC need assessments and preparation of the EHC Plan
- If a parent or school believes a child needs an EHC Plan, it can ask the Council to carry out a needs assessment to determine if, and what, special educational support the child needs.
- Councils can decide not to carry out a needs assessment. It must let the parent know of this decision within 6 weeks of the request being made.
- The parent can appeal the Council’s decision to the tribunal.
- If the Council decides to carry out a needs assessment, or is directed to do so by the tribunal, the statutory guidance states the process from the date of the decision to carry out the assessment to the issuing of the final EHC Plan must take no longer than 14 weeks.
- Councils should ensure an annual review of the child's EHC Plan is carried out at least every 12 months.
- Within four weeks of a review meeting, a council must notify the child’s parent of it’s decision to maintain, amend or discontinue the EHC Plan.
- Where a council proposes to amend an EHC Plan, it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The council should inform the child’s parent or the young person that they may request a meeting with the council to discuss the proposed changes.
- The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes.
- Following representations from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as quickly as possible and within 8 weeks of the original amendment notice. If the council decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.
- If the Plan needs to be amended, the council should start the process of amendment without delay.
- When sending the final amended EHC Plan, the council must notify the child’s parent or the young person of their right to appeal.
Child in need assessments
- Section 17 of the Children Act 1989 imposes a duty on councils to safeguard and promote the welfare of children within their area who are in need, and promote their upbringing by their families, by providing a range of services appropriate to those children’s needs.
- If the council receives a referral, it should assess the child and family quickly and decide if it needs to carry out a full assessment or take urgent action.
Z’s initial EHC Plan
- Ms X’s son, Z, has a diagnosis of Autism Spectrum Disorder.
- In May 2017, the Council received a request to assess Z to determine if he needed an EHC Plan. The Council issued a letter of refusal which Ms X challenged at the SEND tribunal.
- The Council conceded the appeal and on 20 October 2017 it informed Ms X it would proceed with an EHC needs assessment. The Council issued Z’s final EHC Plan on 31 March 2018.
- Z’s EHC Plan included the assigning of a buddy of his own age to support him at school lunch and break times. In addition, the Plan specified 25 hours a week support from a teaching assistant, increasing to 30 hours a week between June and July 2018 to support Z’s transition to a new school.
Z’s annual review
- On 30 January 2019, Z’s annual review was held at his school. Following the meeting, on 7 February, the school told the Council that Z’s EHC Plan required amending.
- On 16 April 2019, the Council sent Ms X a copy of the amended final EHC Plan. The Council has not provided evidence it issued her with a notification letter setting out its proposal to amend the Plan.
- On 29 April 2019, Ms X emailed the Council to ask why it had not issued a draft amended EHC Plan. The Council resent the EHC Plan but this time it entitled it ‘proposed amended EHC Plan’.
- On 1 May 2019, Ms X made a formal complaint to the Council. She complained about the delays to the EHC Plan process and about the buddying system specified in Z’s existing Plan. Ms X said the school refused to implement the scheme, stating it was unfair to put such pressure on one of Z’s cohort to monitor him. She said that as a result, Z had been isolated at breaks. In addition, a serious physical incident had occurred between Z and another child and Z had been excluded from school for one day. Ms X said the buddying system was in the Plan specifically to avoid such situations.
- On 14 May 2019, Ms X responded to the Council. She requested some amendments to the proposed Plan. Ms X also repeated her comments that the school had failed to implement the buddying system.
- An Officer from Children’s Services responded to Ms X. They said “There is… a cause for concern around the Buddy system that appears to have not successfully been implemented and a serious incident that occurred. I also note that [Z’s] understanding is limited socially, and requires protection and support during unstructured times, evident from conflicts between peers on numerous occasions. This will be fed back immediately to the Specialist Teacher Service for ASD to see how this service can support the school and [Z] in this area and provide strategies that can inform his EHCP”. The response also addressed Ms X’s other amendments she had requested to the Plan and referred to an up and coming meeting to discuss all these issues.
- The Council issued Z’s final amended Plan on 18 July 2019. The Plan again referred to a buddying system which would be in place at break and lunch times. In addition, the Plan specified 30 hours a week support from a teaching assistant until January 2020 when the hours would decrease to 25 hours a week. Z would also receive 6 hours during the academic year of speech and language therapy (SaLT).
- Around the same time, the Council responded to Ms X’s complaint. It said her points had been covered by the letter sent earlier by the Officer from Children’s Services. The Council upheld Ms X’s complaint and said there would be a meeting to further explore the provision in Z’s Plan and address Ms X’s specific concerns.
- Ms X made a stage 2 complaint on 5 August 2019. She said Z still required additional support and she was no closer to resolving this matter.
- The Council responded on 8 October 2019. It said it would review the effectiveness of the Plan in January 2020. It acknowledged the EHC Plan process had taken too long but considered its apology was sufficient to remedy any injustice caused to Ms X. It said some of the delays had been inevitably lengthened by “some disparity between your views of the level of provision required by your son and those views of the Council”.
- Ms X remained unhappy and complained to the Ombudsman.
- In response to my enquiries, the Council provided feedback from the school about the buddying support. The school had significant concerns about the support and the effects this could have on Z making friends and appearing ‘different’ to the other children. As a result, the school stopped the buddying system in January 2019. At a meeting in July 2019 between the school and Ms X, the school discussed its concerns with Ms X and explained the different system it had put in place. Ms X was unhappy with this as she thought the buddying system was the right support for Z.
Child in need assessment
- Ms X requested a child in need assessment in May 2019 for Z and his sibling. The Council did not respond and she requested one again on 20 October 2019.
- On 28 October, a Council social worker visited Ms X’s home about Ms X’s request. Ms X was not available and so the social worker left a compliments slip to say she had called. Ms X was unhappy with the manner of the contact as she wanted a formal letter about the assessment. On 1 November 2019, Ms X complained to the Council.
- The social worker phoned Ms X the same day and they arranged a meeting for 4 November. Ms X says she informed her son who became anxious about the meeting and said he would not attend. Ms X cancelled the meeting later the same day.
- The social worker phoned Ms X on 8 November to arrange another meeting for 19 November. Ms X agreed at the time to the meeting but later cancelled it because she said she felt pressurised into agreeing. She also said she was unhappy with the social worker’s attitude.
- Ms X continued to correspond with the Council’s complaints department. She said she would not have any further contact with the social worker and asked that she was replaced. The complaints department referred her to the children’s services manager to discuss this because the service area did not have the authority to make decisions about Ms X’s social worker.
- The Council wrote by letter to Ms X twice in November and December to arrange a meeting but she did not reply. Ms X has provided evidence to show these letters were sent to her old address.
- On 14 January 2020, the social worker emailed Ms X to set up the child and family assessment. Ms X replied said she would not communicate with her but only with the manager. On 17 January the manager reviewed the case and closed it.
- In February 2020, the Council received a referral from a homeless charity reporting Ms X was experiencing domestic abuse and could not live at her property. The Council carried out a child and family assessment. It spoke to Ms X and Z and received reports from the SEN Manager at Z’s school, as well as the family’s GP, and the housing department at the Council and a housing association. The assessment concluded “At this time there is no role for Children Social Care. The Police, [the housing association] and [the Council] are working with [Ms X], they stated her case is medium risk and [the person] who threatened her has been arrested and she is safe to return back to her flat”. The assessor recorded Ms X’s children were not children in need.
- In October 2020, a new social worker carried out a child in need assessment. In this Ms X raised concerns about Z’s abilities to care for his personal needs and the effect of the domestic abuse which occurred earlier in the year. The social worker was critical the family had not been offered support following the incidents earlier in the year. The Council provided an initial six months of support from Family Services.
Issuing of Z’s first EHC Plan
- Ms X requested the Council complete an EHC Plan needs assessment on 14 May 2017. The Council refused the request and informed Ms X of its decision on 16 June 2017. Ms X appealed to the Tribunal and on 20 October 2017 the Council conceded the appeal and agreed to carry out Z’s EHC needs assessment. It issued Z’s EHC Plan on 31 March 2018, 23 weeks after it agreed to carry out the EHC needs assessment. The statutory timescales specify councils must issue a final Plan within 14 weeks of the decision to carry out a needs assessment. The Council therefore took 9 weeks longer than the statutory timescales and this is fault.
- This fault caused Z injustice, as it led to 9 weeks delay in Z receiving the special educational provision listed in the Plan. Ms X was also caused frustration and distress because of the delays. The Council has agreed to apologise and make a financial payment to acknowledge this injustice.
Annual review process January 2018 onwards
- The school held the annual review meeting on 30 January 2019. Following this:
- The school sent the Council a notification on 7 February to say the Plan needed amending. There is no evidence the Council issued Ms X with a notification to amend the Plan. This is fault.
- The Council issued Ms X with a copy of the proposed amended Plan on 30 April 2019, which was 13 weeks after the annual review meeting was held. This was a delay of 9 weeks and is fault.
- The Council issued Z’s final amended Plan on 8 July 2019. This was around 24 weeks after the annual review meeting was held. This is 12 weeks longer than the Council should have taken and 15 months since Z’s Plan was finalised. This is fault.
Provision of a buddy for Z
- Both of Z’s EHC Plans specified a pupil should be assigned as a buddy to provide him with support during school.
- This support was in place until January 2019. At that point, the school stopped the support as it felt it was not working and put other systems in place. There is no evidence the Council was aware of the school’s decision until Ms X complained in May 2019. I cannot hold the Council at fault for this period when Z did not receive this support.
- From May 2019 the Council was aware Z was not receiving the support. The Council has a duty to ensure the provision in a Plan is provided. Therefore, from May 2019, the Council was at fault.
- The school will not implement this provision because it believes it is detrimental to Z and will put unacceptable pressure on the pupil assigned as the buddy. The Council cannot compel the school to do so. And I cannot comment on whether the provision is suitable. Only a tribunal can do this.
- The Council has identified Z has a need for a buddy. Whilst this is in Z’s EHC Plan, the Council must ensure it is provided. If the Council believes it is not required or a different system would work better, it should amend Z’s Plan, which would allow Ms X the right to appeal to the tribunal. In the meantime, Z has experienced an injustice because he has not received the support his Plan states he needs.
- The situation has also caused frustration and distress to Ms X who believes Z would benefit from the buddying system.
- The Council has agreed to apologise and make a financial payment to acknowledge this injustice.
Child in need assessment
- Ms X first requested a child in need assessment in May 2019. The Council has admitted officers failed to pass this request onto the relevant department so no action was taken. This is fault.
- Ms X requested a chid in need assessment again on 20 October 2019. The Council responded after 10 days, which is longer than the accepted timescales. This is fault.
- The Council tried on two occasions to hold the child in need assessment in November 2019. Ms X cancelled these both times and has explained the reasons why to me. These were actions she was entitled to take; however, I do not hold the Council responsible for the way it arranged the meetings or for Ms X’s decisions to cancel.
- Ms X was unhappy with the way the Council communicated with her and asked for a letter explaining the child in need process. As a result, following the cancellation of the November meetings, the Council sent her two letters by post. These went to an old address which is fault. However, when the Council did carry out the assessment, following a referral from a homelessness charity, it decided Z and his sibling were not children in need.
- A new social worker carried out a child in need assessment in October 2020. This was critical of the March assessment and recommended an initial six month’s support for the family. Ms X believes this means the Council acted with fault in March leading to injustice to her and Z.
- The new social worker was critical of the previous assessment. That does not mean the previous social worker acted with fault. I have considered the March 2020 child in need assessment. The social worker spoke to the relevant professionals as well as talking to Ms X and Z. The assessment was detailed and the conclusions reached were sound, evidence-based and supported by her manager. The October 2020 assessment contained new information from Ms X which was not available to the previous social worker. This led to a different outcome. There was no fault in the Council’s actions when it carried out the March 2020 assessment and therefore, the delays leading up to the assessment did not cause Ms X or Z an injustice.
- Within one month of the date of the final decision, the Council has agreed to:
- apologise to Ms X for the fault identified in this decision statement;
- pay Ms X £2,175 to be used for Z’s educational benefit, to acknowledge the support he missed out on because of delays in finalising his initial EHC Plan, delays during the annual review process and the lack of provision of the support in his Plan;
- if the school continues not to implement the buddying provision and it remains in Z’s EHC Plan, the Council should review the provision to determine whether or not Z’s Plan needs amending; and
- pay Ms X £300 to acknowledge the distress and frustration caused by the fault identified in this decision statement.
- There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman