Summary: The Council were at fault in how it dealt with a review of Mrs Y’s daughters Education Health and Care (EHC) plan. The Council has now agreed to make a payment that recognises the injustice this caused.

The complaint

1. The complainant, who I will refer to as Mrs Y, complains about how the Council dealt with the review of her daughter’s Education Health and Care (EHC) plan. I will refer to Mrs Y’s daughter as D. Mrs Y says the Councils actions have negatively impacted D’s education and Special Educational Needs (SEN) provision and caused Mrs Y distress. Mrs Y complains that the Council:
1. Failed to obtain relevant advice from professionals and failed to consider advice she sought independently. Therefore, D’s needs were not properly assessed.
2. Failed to ensure an Occupational Therapy assessment was progressed, despite D being on the waiting list since 2018.
3. Failed to review D’s EHC plan on time, delaying her opportunity to appeal and meaning there was a period where D did not receive the necessary provision.
4. Failed to properly consider Mrs Y’s views during the process.
5. Failed to properly deal with Mrs Y’s complaints about these matters.

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What I have investigated

2. I have investigated the complaint points c-e above. I have explained why I have not investigated points a & b at the end of this decision statement.

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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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate a complaint if someone can appeal or has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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)
8. 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

9. I considered the information and documents provided by Mrs Y and the Council and I communicated with Mrs Y about her complaint.
10. I considered the relevant legislation, statutory guidance, and policies, set out below.
11. I also sent a draft version of this decision to both parties and invited their comments.

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What I found

Education, Health and Care (EHC) plans

12. 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.
13. 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.

Complaints procedure

14. The Council has a two-stage corporate complaints procedure. This says that at stage one, the Council will aim to respond to a person’s complaint within 10 working days. If it is going to take longer than this the Council will let the complainant know.
15. At stage two, the procedure says the Council’s response should normally be completed within 20 working days.

What happened

16. Mrs Y’s daughter, D, has significant language difficulties and has therefore been subject to an Education Health and Care (EHC) plan since April 2017, prior to her starting reception in September 2017.
17. In September 2018, D started year 2 at a mainstream school with an SEN unit attached. I will refer to this school as School A.
18. An annual review of D’s EHC plan took place on 1 April 2019. School A had two weeks from this date to provide the Council with the review documentation. However, it did not provide this information until 27 June. The Council accept that it should have done more to follow this up.
19. School A requested that D be transferred to a special school. Mrs Y told the council that her preference was a special school which I will refer to as School B.
20. In August, the Council’s SEN review panel sat and concluded that the Council should seek a special school for D, and that School B should be included in those schools consulted.
21. The Council contacted schools in September, but no offers were received from maintained schools. The Council therefore put D’s case forward to for a Non-Maintained and Independent (NMI) Moderation Panel to consider whether the school should be named on D’s plan.
22. The NMI Consideration Panel sat in October but felt it could not reach a decision due to conflicting information about D’s needs. It therefore requested the plan be shared with an Educational Psychologist and Speech and Language Therapist.
23. In December, a maintained school told the Council it could meet D’s needs. I will refer to this school as School C.
24. On 17 October, the Council issued a draft version of D’s plan. The following day, Mrs Y submitted 19 pages of comments on the plan. However, nobody at the Council contacted her to discuss her comments.
25. On 20 December, the Council issued D’s final EHC plan naming School C. Dissatisfied with its contents, Mrs Y submitted an appeal via the SEND Tribunal.
26. On 9 June, the tribunal hearing issued a consent order, instructing the Council to issue an amended EHC plan based on a working document agreed by both Mrs Y and the Council.
27. The Council subsequently issued a final EHC plan for D, naming School B as her education placement.
28. D’s EHC Plan included additional therapy provisions not previously included in the plan. This included provision for Speech and Language Therapy (SaLT) and Occupational Therapy (OT).
29. Mrs Y complained to the Council in November about its handling of D’s EHC review. It responded in December, in which it apologised for the delay which is said was caused by pressures on the department.
30. Mrs Y asked for a review at stage 2 of the Council’s complaints process. It said it would provide a response after the tribunal hearing. It subsequently provided a response in mid-September, when it apologised again for further delays.
31. The Council concluded that there was a delay in the annual review process, its communications during the process had not been of an acceptable standard and it had delayed responding to her complaint.
32. The Council apologised to Mrs Y and said it had put in place training for staff and had implemented a duty system to ensure staff absences are covered.
33. The Council also offered Mrs Y a financial remedy. It offered Mrs Y:
• £150 for her having to follow up the Council for updates during the EHC process.
• £100 to recognise the delay in dealing with her complaint.
• £150 for the distress caused.

Analysis

34. From the date of the review on 1 April, the Council had four weeks to decide whether to amend D’s EHC plan and a further eight weeks to issue the plan The Council therefore should have issued the plan on 24 June. However, it did not do so until 20 December, this means it missed the statutory timeframe for issuing the plan by some six months.
35. The Council has explained some of the reasons for the delay. It says School A took too long to provide the Council with review documents, and without these documents it was unable to proceed with issuing the final plan. The Council said that the Case Officer dealing with the plan was also off work long term sick
36. Nevertheless, the Council’s failure to meet the statutory timescale for issuing D’s final EHC plan is fault. Whilst I acknowledge that School A took too long to provide the review documents, the Council itself acknowledge that it could have done more to follow this up with the school. Furthermore, this delay does not account for the full six-month period.
37. Upon issuing a draft version of D’s EHC plan, Mrs Y submitted comments. The Council say the Case Officer was due to contact Mrs Y to arrange an appointment to discuss her comments, but due to sickness no such meeting was arranged.
38. The Council accepted that its communication had not been up to standard and apologised to Mrs Y for this. It also accepted that it had delayed responding to Mrs Y’s complaints about the matters.
39. The Council offered a remedy payment to acknowledge the time and trouble Mrs Y went to pursuing the EHC process and her complaint and the additional distress its faults had caused her.
40. Having considered the remedy payments offered I have concluded that they are in line with the Ombudsman’s Guidance on Remedies and are therefore an appropriate remedy to the injustice to Mrs Y, caused by the Council’s faults.
41. I also consider that the service improvements the Council has implemented are appropriate and I therefore do not propose making any further service improvement recommendations.
42. However, I do not consider that the Council considered what impact the delay completing the EHC review had on D.
43. The final plan was issued some six months late, meaning Mrs Y’s appeal rights were delayed by this period. Mrs Y’s appeal was successful, and amendments were made to the final plan, including additional SEN provision in the form of SaLT and OT sessions.
44. If the EHC process had been completed sooner, a revised plan would have been completed sooner and D would have had access to the additional provision sooner.
45. I therefore conclude that, because of the Council’s failure to conclude the EHC process within the statutory timescales, D suffered an injustice in the form of lost SEN provision for five months (when taking into account school holidays)
46. Where fault has resulted in a loss of educational or SEN provision, we normally recommend a remedy payment. Having considered the factors in this case I have concluded that a remedy payment should be offered at £200 for each month D’s provision was delayed.

Agreed action

47. In addition to the remedies the Council has already proposed, the Council has agreed that within 1 month of the date of my final decision it will offer to pay Mrs Y an additional £1000 to remedy D’s lost SEN provision. This amount should be used by Mrs Y to benefit D’s education.

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Final decision

48. I have concluded my investigation with a finding of fault leading to an injustice.

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Parts of the complaint that I did not investigate

49. Mrs Y complains that the Council failed to obtain or consider relevant advice from professionals to properly assess her daughter’s education, health and care needs (parts a & b of the complaint). Mrs Y says the Council delayed in carrying out an OT assessment and she therefore had to organise her own.
50. Having carefully considered the evidence regarding Mrs Y’s appeal and what the tribunal considered I find that we do not have any discretion to consider this part (parts a & b) of Mrs Y’s complaint. This is because Mrs Y appealed the EHC plan which takes this element of the complaint out of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman