Summary: Mrs X complains the Council delayed in issuing her son’s final EHC plan following an annual review in April 2018 for over two years. The Council’s delays and errors in the EHC plan process amount to fault. This fault has caused Mrs X and her son an injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X complains the Council failed to issue a final EHC plan following an annual review in April 2018 which identified her son needed OT provision. The failure to issue a final decision, despite two further annual reviews, means Mrs X has been unable to exercise her right of appeal and that her son has missed out on necessary OT provision for the last two years.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. We cannot investigate a complaint if someone has appealed to a tribunal. However, we might investigate whether there may have been a delay in the process which led to the tribunal. (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 Chamber of the First Tier Tribunal (‘SEND’))

Summary of relevant guidance

6. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this.
7. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
8. The annual review of an EHC plan considers whether the provision is still appropriate and whether the child is making progress towards the targets in the EHC plan. 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.
9. 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 with details of the proposed amendments. This should include 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.
10. If the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the amendment notice.
11. When sending the final amended EHC Plan, the council must notify the child’s parent or the young person of their right to appeal. It is only possible to appeal to the Tribunal once the council has issued a final EHC Plan
12. 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

13. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X;
• Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

14. Mrs X’s son, Y has an Education Health and Care (EHC). At the first annual review in April 2018 it was identified that Y’s plan needed to include Occupational Therapy (OT) provision. Mrs X states that over the following months she repeatedly chased the Council for an amended EHC plan and received assurances the Council was progressing this.
15. In December 2018 as Mrs X had not received an amended EHC plan, she made a formal complaint to the Council. The Council upheld her complaint and apologised for the significant delay in progressing Y’s EHC plan. It confirmed the SEN officer would work at pace to rectify the problem and contact Mrs X in the New Year with an update. The Council also confirmed it would seek a place for Y at Mrs X’s preferred school for September 2019.
16. The Council issued a draft EHCP in February 2019. This was considered as part of the annual review which also took place in February 2019. Mrs X raised concerns about aspects of the draft plan and asked for a meeting to discuss it. Mrs X states the officer agreed, but then left the Council before a meeting could be arranged. Y’s case does not appear to have been passed to another officer and there is no evidence of any further action to finalise Y’s EHC plan.
17. In December 2019 Mrs X asked the Council to review her complaint as the issues had still not been resolved. The Council confirmed an officer was working on an amended version of the EHC plan which would incorporate the requested changed from the review meetings in April 2018 and February 2019.
18. The following week, the Council issued a further draft EHCP. Mrs X states she was generally happy with the draft plan but wanted it to specify how the OT provision would be provided. A further annual review took place on 31 January 2020. Mrs X states that at this meeting the SEN officer agreed to check the how the Council would provide the necessary OT provision and would then issue a further draft EHC plan.
19. Mrs X states she heard nothing further from the Council until May 2020, when the Council issued a draft EHC plan. This plan was the same as the previous, save that the Council had removed the OT provision. Mrs X had employed consultants to assist her with the EHC plan process, who responded to the draft plan on her behalf.
20. The consultants noted Y’s EHC plan had not been finalised since it was in draft form following an annual review in April 2018.
21. The consultants questioned the removal of the specific, quantified OT provision which the Council had previously agreed, verbally and in previous drafts. They noted the Council had not provided an explanation or any evidence for the decision to remove the OT provision. And referred to an OT report Mrs X had commissioned which was specific and quantified regarding what Y required to meet his physical and sensory needs.
22. The consultants asserted that the fact neither the Council nor the NHS provided a service should not be a barrier to the provision being implemented if needs had ben identified. They asked the Council to finalise Y’s plan to include the direct, quantified OT input recommended in the OT report.
23. The Council issued the final EHC plan in June 2020. As this did not include any OT provision, Mrs X has appealed to the Tribunal. A hearing is listed for January 2021.
24. Mrs X has asked the Ombudsman to investigate her complaint about the length of time taken to finalise Y’s EHC plan. She states a further annual review is due in December 2020. This will mean that there will have been four annual reviews before she has had the opportunity to appeal Y’s EHC plan.
25. In response to my enquiries the Council assumes Mrs X’s references to delays relate to the errors following the annual reviews in April 2018 and February 2019. It notes it has apologised for errors in response to Mrs X’s complaints.
26. The Council also acknowledges that in 2020 it missed the three-month deadline following the annual review by three weeks. The Council does not consider this delay would have significantly impacted on the provision.
27. In relation to the OT provision, the Council states the NHS OT saw Y in 2017 and decided he did not have any ongoing OT needs. The Council then contacted the OT service for advice in relation to the annual review in 2020. The Council has not provided any details of the OT advice, but states the NHS OT will now re-assess and respond to the OT recommendations from 2018, to support the Tribunal process.

Analysis

28. It is clear from the documentation available that there have been significant failings in the EHC plan process. The Council proposed to amend Y plan following an annual review in April 2018 but did not issue a final EHC plan until June 2020, after two further annual reviews.
29. Delays of this nature are clearly unacceptable and amount to fault. The Council was aware Mrs X disagreed with elements of the proposed plans and should have issued the amended final plan without delay and engaged Mrs X’s appeal rights.
30. It is particularly disappointing that having acknowledged and apologised in December 2018 for the delays and errors in the EHC plan process the Council’s service did not improve. There were further delays and periods of inaction following the annual review in 2019. Although the review took place in February 2019, the Council did not issue a proposed amended plan until December 2019, after Mrs X had asked the Council to reconsider her complaint.
31. There were also delays in 2020. Records of the annual review meeting in January 2020 note the officer now had all the information they needed to write the final EHC plan. The officer intended to clarify by 4 February 2020 who would provide the OT provision and how this would be funded. The notes state the funding might take 2-3 weeks and at that point the officer would issue the final EHC plan.
32. However, this did not happen, and the Council did not issue a proposed amended plan until 20 May 2020 or the final EHC plan until 23 June 2020, over 20 weeks after the annual review. I have not received records of any correspondence or communication from the Council to Mrs X advising her of any changes to the timeframes discussed at the annual review, or that the Council’s position on the OT provision had changed.
33. Mrs X is unhappy that OT provision included in earlier proposed amended plans and discussed at the annual review in January 2020 has been removed from the final EHC plan. I am unable to consider this issue or the content of the plan as Mrs X has appealed to the Tribunal.
34. Having identified fault, I must consider whether this has caused Mrs X and Y a significant injustice. But for the Council’s delays, Mrs X would have been able to exercise her right of appeal two years earlier. This would have meant there was clarity regarding any OT provision to be included in Y’s EHC plan and would have allowed Mrs X to make informed decisions about how to support Y. Mrs X states that had her appeal been unsuccessful she could have done things differently over the last two years, and potentially made her own arrangements.
35. It is unclear what the outcome of the Tribunal will be, so I am unable at this stage to say whether Y has suffered an injustice in the form of missed OT provision. Should the tribunal determine OT provision should be included in Y’s EHC plan, I would expect the Council to consider whether the failure to provide this earlier has caused Y an injustice. If the Council determines it has, it should take action to redress this.

Agreed action

36. The Council has agreed apologise to Mrs X and Y and pay Mrs X £500 in recognition of the distress and uncertainty the delays in the EHC plan amendment process and the lost opportunity to bring her appeal to the Tribunal sooner have caused.
37. The Council should take this action within one month of the final decision on this complaint.

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Final decision

38. The Council’s delays and errors in the EHC plan process amount to fault. This fault has caused Mrs X and Y an injustice.

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Investigator's decision on behalf of the Ombudsman