Summary: Mr A complains the Council has delayed issuing an Education, Health and Care Plan for his son, C, and so he has lost out on support that should have been provided. The Ombudsman finds fault with the Council for delaying reviewing and issuing the Plan for 19 months. The Ombudsman also finds fault with the Council for failing to provide information from the Plan, failing to consider the request for a personal budget, and for poor complaint handling. The Council has agreed to make a payment in recognition of lost provision, and for the distress caused to Mr A. The Council will also review how it monitors annual reviews and requests for personal budgets.

The complaint

1. The complainant, whom I refer to as Mr A complains the Council has delayed issuing an Educational, Health and Care plan (EHCP) for his son, whom I shall refer to as C.
2. Mr A complains the Council failed to provide him with information he has requested about learning and support for C.
3. Mr A also complains that this has wasted time and caused undue stress on his family. He also complains this has caused C to miss support for his development and fall behind his peers at school.

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The Ombudsman’s role and powers

4. 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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), 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 considered Mr A’s complaint and the information he provided. I discussed Mr A’s complaint with him via telephone. I also considered information from the Council. I sent Mr A and the Council copies of my draft decision and considered any comments made prior to making my final decision. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Special educational needs and disability legislation

Reviews

9. EHCP’s should be used to actively monitor children and young people’s progress towards their outcomes and longer term aspirations. They must be reviewed by the local authority as a minimum every 12 months.
10. Where the local authority 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.
11. The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes.
12. Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.
13. When the EHC plan is amended, the new plan should state that it is an amended version of the EHC plan and the date on which it was amended, as well as the date of the original plan. Additional advice and information, such as the minutes of a review meeting and accompanying reports which contributed to the decision to amend the plan, should be appended in the same way as advice received during the original EHC needs assessment. The amended EHC plan should make clear which parts have been amended.

Personal Budgets

14. The child’s parent or the young person has a right to request a Personal Budget, when the local authority has completed an EHC needs assessment and confirmed that it will prepare an EHC plan. They may also request a Personal Budget during a statutory review of an existing EHC plan.
15. Personal Budgets are optional for the child’s parent or the young person but local authorities are under a duty to prepare a budget when requested.

What happened

Background

16. In 2016, C’s statement of special educational need was converted to an EHCP.
17. C is now in his final year of secondary school and due to sit his GCSE’s.

EHCP Review and request for information

18. The Council did not complete reviews of C’s EHCP in 2017 or 2018. It sent a reviewed EHCP to Mr A in March 2019 without holding a review meeting or discussing it with Mr A. It proposed to hold a review to complete the final draft.
19. Mr A contacted the Council after receiving the proposed EHCP to raise concerns about the information in it. Mr A requested copies of the reports that were used to make the proposed amendments. Mr A felt that the information about to Occupational Therapy support did not reflect C’s circumstances.
20. Mr A met with the Council in May 2019 where it was agreed that up to date information would be sought to inform the EHCP. Mr A again requested copies of the reports that had informed the EHCP that was initially proposed. Mr A did not feel the Council followed up after the meeting. He attempted to speak with the Council about his concerns but did not receive a response and escalated this to a complaint with the Council in July.
21. Mr A received a stage one response from the Council to his complaint in August 2019.
22. In September 2019, Mr A wrote to the Council twice more asking for the information about the reports used in the draft EHCP. The Council advised there was a delay in providing the information.
23. In October 2019, Mr A wrote to the Council expressing his frustration the outcomes agreed in the Council stage one response had not taken place, and that he was still awaiting the information he requested.
24. In November 2019, Mr A requested the EHCP review process be paused while he awaited the Council’s response to his requests. Shortly after this, Mr A agreed the annual review meeting for the EHCP can go ahead.
25. In December 2019, Mr A escalated his complaint to the Council, requesting a stage two response.
26. The Council held an annual review for C in January 2020.
27. In February 2020, the Council were able to agree that a new Educational Psychology report would be provided by the end of March 2020. It also recorded that other reports including those from Occupational Therapy were provided between June 2019 and January 2020.
28. In February 2020, the Council received an email from Mr A’s local Member of Parliament, requesting that the Council provide a swift response to the stage two complaint.
29. Council records show the Council did not start collecting information to respond to Mr A’s request to escalate his complaint to stage two until February 2020.
30. The Council provided its stage two response in March 2020. The Council upheld some parts of Mr A’s complaint. It acknowledged it did not use up to date information in the initial EHCP proposed in 2019, and that it had not been able to obtain up to date reports until recently. However, the Council did not fully uphold Mr A’s complaint as it said that part of the delay in issuing an EHCP was due to Mr A not agreeing with the content of the EHCP.
31. Mr A complained to the Ombudsman in March 2020. At this time, C was still without an up-to-date EHCP.
32. The Council provided a second draft EHCP in July 2020, with some amendments for support. This draft proposed some changes to daily support for C in school.
33. Council records indicate that the Council was still chasing the information that Mr A had requested about the reports used in the initial proposed EHCP.
34. The Council issued a final EHCP in October 2020, shortly after receiving a formal enquiry request from the Ombudsman. The final draft also included an amendment to the amount of Occupational Therapy and Educational Psychology support for C.

Analysis

35. Councils are expected to complete annual reviews of EHCP’s. In the case of C, the Council did not complete a review in 2017 or 2018. The Council initiated a review in March 2019. This is fault by the Council, but I do not consider it to have caused C injustice as he was receiving more support than was finalised in the EHCP issued in October 2020.
36. I understand that Mr A asked to pause the EHCP process until the Council responded to his request for information. I find this to be a reasonable request from Mr A, as it is apparent from Council records that his concerns were not responded to when raised. However, Mr A did then agree for the co-production meeting to go ahead to review the EHCP. It is my view that Mr A did not delay the EHCP process by a significant amount of time.
37. The Council has advised that some of the delay was caused by being unable to agree on whether new reports were provided, or updated ones would be issued. The content of an EHCP is a matter which can be appealed to SEND, and the Ombudsman normally expects appeal rights to be used where they exist. I accept the issue between Mr A and the Council as to whether new reports or updated reports could have caused a slight delay. However, I do not uphold that it should have delayed the EHCP significantly. The Council could have included up to date information in the EHCP and if Mr A disagreed with this information, it could be addressed via the tribunal.
38. The Council has also advised that some of the delay was due to service restructures. I note the Council’s reason, but restructures should be managed so they do not delay the provision of statutory services. My view is the Council was at fault for this happening.
39. The guidance says the EHCP should have been completed by March 2019, it was completed in October 2020. My view at present is there was an unnecessary delay of 19 months. The final EHCP recommended additional support that was not in place in the proposed March 2019 draft. This included additional daily support in school and additional Occupational Therapy and Speech and Language support. C therefore missed out on the provision that was included in the final EHCP.
40. The Ombudsman’s guidance on remedies says where fault has resulted in a loss of provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss.
41. I have considered the disadvantage C experienced for a significant period and the provision in his plan. I have not seen evidence that the Council has tried to remedy any provision that C has missed out on. I have also considered that C is now in his final year of secondary school and this support would have been important during his first year of GCSE’s.
42. I am therefore satisfied that a payment of £300 per month is appropriate to remedy the injustice to D due to missed provision. I have accounted for the time that C would not have been in school due to holidays and COVID 19 lockdown. It is my view that although the EHCP was delayed by 19 months, C missed out on additional provision for 11.25 months. For this reason, I have recommended the Council makes an additional payment of £3375, for the injustice of missing 11.25 months of additional provision.
43. Additionally, it is the Council’s responsibility to provide reports used in an EHCP 15 days before a review meeting. I have not seen any evidence to show that the Council did this in March 2019 or has since provided the reports despite Mr A requesting them several times. The Council has advised that Mr A has been provided with this information, and if he feels there is missing information, he can submit a subject access request to the Occupational Therapy services. I do not agree with this reasoning from the Council, as it has a responsibility to provide the information to Mr A and records show that it was still being chased by the Council in August 2020. It is my view that this is fault by the Council causing distress to Mr A, who has had to continually chase this information.

Personal Budget

44. In September 2019, the Council sent Mr A an email advising that a worker would be in touch to discuss a personal budget for his son.
45. Mr A wrote to the Council in October 2019, requesting details on how to apply for a personal budget for his son. He did not receive a response from the Council.
46. In July 2020, Mr A again requested information on a personal budget. The Council told Mr A that a proposal would need to be submitted outlining what the personal budget would be for.
47. Mr A’s sons school then wrote to the Council in July 2020 on behalf of Mr A and his wife, asking for a personal budget for Mr A’s son. The reason for the request was to access Occupational Therapy services that C had missed due to the delay in issuing the EHCP.

Analysis

48. The law says that councils must prepare a personal budget when requested.
49. The Council delayed providing Mr A with information about a personal budget for his son. He first requested this in October 2019, however the Council did not advise that he would need to submit a proposal until July 2020. It is my view the School then proposed this to the Council, with reasoning as to why the personal budget was being requested.
50. The Council does not appear to have responded to this request for a personal budget, despite being told what the budget would be used for. This is fault by the Council, causing injustice to Mr A’s son. If the Council had considered the request, it may have granted a budget. This would have allowed C to access additional Occupational Therapy for the time between the proposed March 2019 EHCP and the final copy in October 2020.
51. Complaint handling
52. Mr A first wrote to the Council in March 2019 voicing his concerns about the proposed EHCP. He did not receive a response from the Council.
53. Mr A then escalated his complaint to a stage one in July 2019. The Council responded 36 days later and upheld his complaint.
54. Mr A wrote to the Council in October 2019 and voiced he was unhappy the actions from the stage one complaint had not been carried out.
55. Mr A escalated his complaint to stage two in December 2019. Council records show that it did not start collecting information for his complaint until February 2020.
56. The Council provided a stage two response to Mr A 71 days after his request for stage two.
57. The Council also received emails from Mr A’s local MP asking for a swift response to the complaint. Mr A felt that the Council only responded to his stage one and stage two complaints after intervention from his MP.

Analysis

58. The Council’s complaints procedure sets out that it aims to respond to stage one complaints within twenty days. It did not meet this time frame when responding to Mr A’s complaint.
59. At stage two, the Council’s procedure sets out that a complainant should receive a notification of whether the complaint will be investigated at stage two within 5 days. There is no evidence to show Mr A received this. It also sets out that a response should be given within 20 days of this notification. Mr A did not receive a response until 71 days after his request for stage 2. In my view, this is a significant delay by the Council causing Mr A injustice.

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Agreed action

60. Within four weeks of this decision the Council has agreed to:

• Pay £3375 to Mr A on behalf of his son to recognise the missed provision during the 19-month delay in issuing a final EHCP.
• Apologise to Mr A and pay him £400 to in recognition of the time and trouble taken to pursue his complaint.
• Provide Mr A with the information he has requested from the Council.
• Review the request for a personal budget for Mr A’s son, and provide a decision and information about this to Mr A.

61. Within eight weeks of this decision the Council will also:

• Review how it ensures that EHCP’s are reviewed annually.
• Remind staff of the responsibility to complete reviews annually, and provide information included in the review.
• Review how it records and responds to requests for personal budgets.

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Final decision

62. I have completed my investigation. I find fault with the Council for delaying reviewing and issue an EHCP for Mr A’s son. I also find fault with the Council for failing to provide information requested by Mr A, not responding to his request for a personal budget for his son, and for poor complaint handling.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman