Summary: Ms F complains the Council took too long to hold a review of her son’s EHC Plan and to issue an updated Plan. She says this has prevented her from using her right of appeal to the SEND Tribunal and denied her son the SEN provision he needs. We have found fault. The Council has agreed to apologise and make a payment to Ms F.

The complaint

1. Ms F complains the Council took too long to hold a review of her son’s EHC Plan and to issue an updated EHC Plan afterwards. She says this has prevented her from using her right of appeal to the SEND Tribunal and denied her son the SEN provision he needs.

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The Ombudsman’s role and powers

2. 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)
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)

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How I considered this complaint

4. Another investigator spoke to Ms F about her complaint. I considered the information she sent, the Council’s response to our enquiries and the Special Educational Needs and Disability Code of Practice 2015 (“the Code”).
5. Ms F 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

6. A child with special educational needs 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.
7. Some children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. When carrying out an EHC needs assessment, councils must gather advice and information from relevant professionals such as educational psychologists. A final EHC plan will name the type of institution the child or young person will attend, and it will normally also have the name of a particular school or college.
8. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
9. 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

10. The Code says EHC plans must be reviewed as a minimum every 12 months and that local authorities should consider reviewing an EHC plan for a child under five at least every three to six months. The annual review considers whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan. Schools are responsible for convening a review. Attendees must be given at least two weeks’ notice of the date of the meeting.
11. Parents or schools may ask for an early or interim review if they consider the child’s needs have significantly changed or that the provision is no longer meeting the child’s needs.
12. 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.

EHC plan timescales

13. 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 the plan, or cease to maintain the plan. It must then tell the child's parent and the school its decision.
14. If the plan needs to be amended, the council should start the process without delay. It must send the child's parent 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 parent must be given at least 15 calendar days to comment on the proposed changes.
15. If the council decides to continue to make amendments, it must issue the final amended EHC plan as quickly as possible and within eight weeks of the amendment notice.

What happened

16. Ms F’s son, D, has autism, ADHD, epilepsy and learning disabilities. An EHC plan was issued in May 2018, when he was three years old attending nursery, naming School X, which is a mainstream primary school. He started at School X in September 2018.
17. The Plan said D required a high level of speech and language therapy (SALT) intervention, including sixteen sessions during the academic year, and an updated SALT assessment in summer term 2018. It says this recommendation should be reviewed before D changed schools.
18. In November 2018 Ms F raised concerns that D needed more SALT input, and that his SALT assessment had not been updated as the Plan required. She says the Council advised that an interim review of D’s EHC plan was therefore needed, although another officer advised her an interim review was not needed and instead SALT should review the Plan recommendation and write a report if they considered D needed more input.
19. Arrangements were made for an interim review to be held in February 2019. However, it was re-scheduled for 1 April 2019 as the SALT report was not available. On 27 March 2019 the Council emailed Ms F that the meeting would again need to be delayed as the SALT report would not be ready and would now be held on 26 April 2019. The email does not say whether the meeting would be a full annual review or an interim review to discuss SALT.
20. Ms F says that at the meeting the professionals decided to change the review from being an interim review to an annual review. She says as a result she was unprepared and did not have the evidence she would have taken to the annual review. She asked for a personal budget to fund an applied behaviour analysis (ABA) programme and for the teaching assistants supporting D to be trained in dealing with challenging behaviours. Ms F says these suggestions were dismissed and she left the meeting feeling confused, upset and that her views had been disregarded. The review agreed that D’s EHC plan needed changes.

Ms F’s first complaint

21. Ms F complained to the Council on 30 April 2019 that it had:
• failed to notify her that an annual review would be held
• told her the EHC plan could not include support for challenging behaviours, as this was not recommended in professional reports, despite those reports referring to D’s challenging behaviour
• unfairly refused to update the psychologist’s assessment
• failed to advise her about how to apply for a personal budget.
22. The Council replied on 28 May 2019. It accepted there had been confusion about whether an interim review should be held and delay holding the meeting. As Ms F had felt the provision specified within D’s EHC plan was insufficient to meet his needs, it had been appropriate to suggest an interim review, but it was decided to change this as the annual review was due. The Council said it therefore had not obtained updated advice from all professionals or shared this with Ms F ahead of the review.

Amending the EHC plan

23. The Council said it would amend D’s EHC Plan but had decided not to seek updated advice from an educational psychologist. It asked Ms F for information about the provision she wished to secure through a personal budget.
24. Ms F says she was unable to provide additional information straightaway as there were no minutes of the review meeting. When she did provide additional documents, they were mislaid by the Council. The Council received reports from SALT and an educational psychologist in August and September 2019. A draft EHC plan was issued on 21 October 2019; it does not say D required ABA to meet his needs and there is no reference to Ms F’s request for a personal budget.

Complaint to the Ombudsman

25. Ms F complained to the Ombudsman in January 2020. She said there was still no final EHC plan and the Council had repeatedly delayed taking the personal budget request to its panel. As a result her son was not receiving the support he needed, his behaviour had deteriorated and he had started self-harming.

Ms F’s second complaint to the Council

26. In March 2020, Ms F made a second complaint to the Council that:
• It was not providing D with adequate support.
• Managers had not responded properly to her since January 2020.
• Personal medical reports she had handed in had been lost, causing delay.
• D’s case worker had told her that she was taking D’s personal budget request to panel three times but did not.
• When D’s personal budget was finally taken to panel, incorrect information was presented.
• It had delayed informing her for four months that she needed a more detailed report from the ABA therapist.
• It had failed to meet her to discuss services available in the local offer.
• D’s draft EHC plan was sent to an incorrect email address at School Y.
• It delayed responding to her about its consultation with School Y.
27. Ms F said she and the school were struggling to manage D’s challenging behaviour. The lack of support had caused her to feel low and frustrated, affecting her and D’s wellbeing to the extent that D was self-harming and she had had to take time off work.
28. In response to our enquiries the Council said it had been working with Ms F to update the EHC Plan but did not have an assessment that confirmed D required an ABA programme, the Council had therefore not agreed to the request for a personal budget. Ms F says she gave the Council an assessment in September 2019 that said D would benefit from ABA. The Council accepted that, whilst D was receiving SEN provision at his current school, School X had confirmed in January 2020 it was no longer able to meet D’s needs.
29. Ms F had expressed a preference for School Y. The Council had consulted with School Y and another school. It said it would finalise the EHC Plan once a placement was secured.

My findings

30. I find there was fault in the arrangements for the April 2019 annual review. Whilst Ms F had had two weeks’ notice of the date of the meeting, in line with the Code, she understood it was to be an interim review and I have no reason to question her assertion she was therefore not prepared to request ABA. The Council has also accepted that the late change to an annual review meant that professional reports had not been sought in advance and no minutes were taken, which caused delay later.
31. The Council says it was agreed at the meeting that changes were needed to D’s EHC plan but I have not seen the formal notification of this decision to Ms F, which should be sent within four weeks of the meeting. This is fault.
32. If the Council decide to change an EHC plan after a review, they must start the process without delay but there is no deadline for this in the Code. I can see that the Council was waiting for professional reports, including a diagnosis which was provided in September 2019. So I cannot say there was delay or fault in not issuing the draft EHC plan until 21 October 2019.
33. However, once the Council had notified Ms F of the amendments to the EHC plan (by sending the draft Plan) it was required to issue a final EHC plan within eight weeks, i.e. by 16 December 2019.
34. The Council says it could not because there was no named educational provider to ensure provision was in place to meet D’s assessed needs and that there are risks inherent in naming a type of provision. This is fault. The Council should have met the statutory deadlines. It can issue a final EHC plan without naming a school or it can specify the type of education provider that would meet D’s needs.
35. The Council’s fault caused Ms F an injustice as she lost her opportunity to appeal to the Tribunal, causing her uncertainty about what it may have ordered.
36. The Council has accepted that School X said in January 2020 that it could not meet D’s needs. In my first draft decision I therefore found the failure to issue a final EHC Plan in December 2019 meant that D missed out on SEN provision for seven school months.
37. In response the Council said it did not agree D’s needs had not been met. I have considered the Council’s comments and accept that D was in school and receiving some support, but my view remains that the Council failed to ensure all of D’s SEN provision was being made from January 2020 to March 2020. This is fault.
38. The COVID-19 pandemic meant that schools were closed from the end of March 2020. The Council has sent evidence that D attended school four days a week throughout the lockdown period.
39. The Government also made changes to SEN legislation due to the pandemic. This meant from 1 May 2020 the Council’s absolute duty to secure or arrange provision set out in the EHC Plan was temporarily modified to a duty to use ‘reasonable endeavours’ to do so.
40. The Council has now provided evidence that in May 2020 it gave additional SEN funding of £5,000 to School X to enable support to be put in place for D whilst the school was not operating normally. I have therefore changed my view and now consider that from May to July 2020 there was no fault. The Council was not required to ensure D was receiving his SEN provision and it made reasonable endeavours to provide support.
41. However I must consider that from January to July 2020 he remained in a school that could not meet all of his needs. I therefore find the failure to issue a final Plan in December 2019 meant D was caused uncertainty about what provision he may have had from April to July 2020.
42. I have found that D lost some SEN provision for three school months (January to March 2020). The Ombudsman’s guidance on remedies says where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a school month to acknowledge the impact of that loss. I have considered that D was attending school with some support, albeit insufficient, and whether additional provision now could remedy some or all of the loss.
43. Ms F complains the Council delayed taking her request for a personal budget to panel. I have not seen when her request was made or considered, but details about the personal budget should have been included in the final EHC plan that should have been issued in December 2019, so it was fault not to have determined the personal budget request by then. However, this has not caused injustice to Ms F as the Council has refused the request.
44. Ms F considers D requires ABA therapy but it is not the Ombudsman’s role to determine the content of the EHC Plan, that is for the Tribunal.
45. In response to my first draft decision the Council said a final EHC plan had been issued on 11 September 2020. Ms F disputes this, she says she has not received a final plan following a draft being sent to her on 2 September 2020. The plan is under review due to D suffering a medical emergency in school, as additional health information has to now be included.

Agreed action

46. Within a month of my final decision, the Council has agreed to:
• Apologise to Ms F
• Pay her £1,200 to be used for D’s educational benefit
• Pay her £200 to acknowledge the uncertainty caused by losing the opportunity to appeal to Tribunal

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Final decision

47. 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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Investigator's decision on behalf of the Ombudsman