Summary: Mrs B complains the Council has not dealt properly with her son X’s Education, Health and Care Plan (EHCP). The Council is at fault because it delayed reviewing X’s EHCP and did not make some provision for X’s Special Education Needs (SEN). The Council has agreed to pay Mrs B £6,800 in respect of C’s missed SEN provision.

The complaint

1. The complainant, who I shall refer to as Mrs B, complains the Council has not dealt with her son, X’s, Education, Health and Care Plan (EHCP) properly because:
• It has not issued a draft or final EHCP for X since she appealed in 2017;
• X has not received SEN provision in relation to occupational therapy and hydrotherapy.
• It has not responded to her about her complaints.
2. Mrs B says this has meant X did not receive his EHCP properly and he has lost SEN provision.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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.
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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.

Back to top

How I considered this complaint

8. I spoke to Mrs B and considered the details of her complaint as well as the Council’s response. I reviewed documents sent by the Council and Ms B.
9. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Special Educational Needs

10. A child with SEN may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. (SEND Code of Guidance)
11. EHCPs 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. Reviews must focus on the child or young person’s progress towards achieving the outcomes specified in the EHC plan. The review must also consider whether these outcomes and supporting targets remain appropriate. (SEND Code of Guidance)
12. Where an EHCP is reviewed, the local authority and school must cooperate to ensure a review meeting takes place. A child’s parents must be invited to attend and given two weeks’ notice of the meeting. All advice and information should be sent to attendees at least two weeks before the meeting. Within four weeks of a review meeting, the Council must decide what action it is going to take and inform those involved. If the EHCP needs to be amended the Council should start the amendment process without delay. (SEND Code of Guidance)
13. Where a local authority maintains an EHCP for a child or young person it must secure the specified special educational provision for the child or young person. (Section 42 (1 & 2) of the Children and Families Act 2014)

What happened

14. X received an EHCP on April 2018.
15. A review of X’s EHCP was held in April 2019.
16. In May 2019 Mrs B complained to the Council that X still did not have an EHCP and was missing SEN support.
17. The Council upheld Mrs B’s complaint and agreed to fund hydrotherapy support and make a referral for occupational therapy.
18. Mrs B escalated her complaint to stage two because she said X was still missing the SEN support the Council had agreed to provide when she originally complained.
19. The Council responded to Mrs B’s stage two complaint, only partially upholding it, saying it would not fund hydrotherapy.
20. An annual review of X’s EHCP has taken place in 2021.

Analysis

21. The Council agree that:
• there has been a lack of case management, stating “Communication between the StART Team and X’s College has not been effective, which has meant some actions have not been followed up in a timely way.”
• after Mrs B’s initial complaint in 2019, actions to identify the costs of funding hydrotherapy from X’s college were not followed up.
• actions following X’s Annual Review in February 2020 were agreed but not actioned.
• that X’s EHCP annual review was not undertaken as it should have been.
22. The Council say annual reviews of X’s EHCP were completed in April 2019 and February 2020. The Council has provided letters showing it sent a copy of X’s final EHCP to Mrs B with right of appeal in April 2019 and November 2020. However, Mrs B complained in May 2019 that she had not received an EHCP and the Council upheld that complaint. On the balance of probabilities, the Council has not sent Mrs B a copy of X’s final EHCP prior to November 2020 and the Council has therefore not completed the annual reviews properly or without delay. This was fault by the Council. X has not received an appealable EHCP and the Council has agreed he has missed SEN provision.
23. The Council agreed that hydrotherapy was not being provided for X in its stage one complaint response. The Council have fully upheld Mrs B’s complaint in respect of occupational therapy, but since reversed their decision to pay for hydrotherapy between the stage one and stage two complaint responses.
24. X’s 2017 EHCP did not contain hydrotherapy provision. The 2018 EHCP contained hydrotherapy provision in section G, concerning health needs. Subsequent EHCP documents show hydrotherapy referenced in both section F, concerning physical needs, and section G, concerning health needs.
25. The Council told Mrs B it would pay for hydrotherapy in June 2019. Mrs B had an expectation that the Council would do what it said it would. It did not. The Council should have funded hydrotherapy provision. After the stage two complaint response, if the Council did not agree that it should not provide hydrotherapy, it should have amended X’s EHCP properly to remove those references. It has not done so. The Council should have continued to provide hydrotherapy. This was fault by the Council. X missed hydrotherapy support between June 2019 and February 2021.
26. In upholding Mrs B’s complaint in respect of occupational therapy, the Council has already agreed X has not received this between April 2018 and June 2020. I have not seen any evidence to show this has yet been provided by February 2021.
27. The Council offered Mrs B compensation of £1,500 in its stage two complaint response. I have considered whether this is appropriate in the circumstances, taking into account the Ombudsman’s Guidance on Remedies. X has missed elements of SEN provision between April 2018 and February 2021, a period of nearly three years.
28. The Council says an SEN Annual Review was held in February 2021 and a draft and final Plan will be issued. Mrs B may appeal the issue of that final plan if she is not satisfied with the provision contained within it.

Back to top

Agreed action

29. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Pay Mrs B £6,800 in respect of the missed SEN provision caused to X.

Back to top

Final decision

30. I have found fault causing injustice to Mrs B and X. I have now completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman