Summary: Mr X complained about delays in the Education Health Care Plan process and that the Council failed to ensure his daughter, Y, received appropriate education and maths provision. The Council has already accepted fault and recognised the poor service received by the family. It has made significant service improvements and offered financial payments for the injustice caused to Mr X and Y. The Council has agreed to the Ombudsman’s further recommendations.

The complaint

1. Mr X complains the Council:

• delayed issuing an Education Health Care Plan (EHCP) for their daughter (Y);
• delayed in making decisions after a review of the EHCP;
• failed to keep accurate records; and
• failed to make the maths provision requested in May 2018

2. Y is in year 11 and is taking her GCSE exams this year. Mr X says the Council’s faults have significantly impacted his daughter’s education and her mental health.

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The Ombudsman’s role and powers

3. 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)
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. 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

6. I considered the information provided by Mr X and discussed the complaint with him by telephone. I made enquiries of the Council and considered the information it provided. I gave Mr X and the Council a copy of my draft decision and invited their comments.

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What I found

Special Educational Needs

7. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. Councils are responsible for making sure that arrangements specified in the EHCP are put in place.
8. SEND is a tribunal that considered special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

Annual reviews

9. The annual review of an EHCP considers whether the provision is still appropriate and whether the child is making progress towards the targets in the Plan. Schools are responsible for convening a review. Paragraph 9.173 of the SEND Code of Practice says councils and schools must cooperate to ensure a review takes place. 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 EHCP.

EHCP timescales

10. Within four weeks of the review, a council must decide whether it proposes to keep the EHCP 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.
11. If the EHCP 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 inlcude copies of any evidence to support the proposed changes. The parent must be given 15 calendar days to comment on the proposed changes.
12. If the council decides to continue to make amendments, it must issue the EHCP as quickly as possible and within eight weeks of the amendment notice.

What happened in this case

13. Y is now 16 years old. Y has Asperger’s Syndrome and associated social interaction difficulties, early life trauma, low self-esteem, and low mood. Y has had an EHCP for a number of years.

EHCP annual review

14. The annual review of Y’s EHCP took place in May 2018 with a further annual review in November 2018. A final EHCP was issued in December 2019.
15. The Council says the reasons for the delay were due to staff sickness and high turnover of staff leaving the service. The Complex Needs Panel also failed to make decisions about SEN provision for Y and additional funding requests by the school. The Council accepts that decisions were not made and actions following the Panel were not acted upon in a timely manner. The Council accepts that it allowed matters to drift and failed to update the EHCP in a timely manner. The Council has accepted fault and therefore it is not necessary for me to investigate this aspect of Mr X’s complaint any further. However, I must consider the injustice caused by the significant delay.
16. The Code and Regulations are clear about when final EHCP’s should be issued, this enables the parents or guardians to use their appeal rights if they choose to do so. It took the Council 20 months to finalise the EHCP and this amounts to fault. Mr X was denied the opportunity to appeal against the EHCP, causing avoidable uncertainty and frustration. To remedy this injustice, the Council has offered to pay Mr X £150. I welcome this proposal however on review of this case, I recommend a higher payment of £250.
17. The failure to issue the amended EHCP meant Y did not have the benefit of an up-to date EHCP for a significant period of time. I note the Council’s comments that despite poor case management by the Council, the school was meeting Y’s support needs. However, Y’s need changed considerably during this period. Child and Adolescent Mental Health Services (CAMHS) confirmed Y had Asperger’s Syndrome and associated social interaction difficulties, early life trauma, low self-esteem, and low mood. Therefore, it is my view that without a final EHCP the Council and school did not have an up to date understanding of Y’s needs and how to meet them.
18. I cannot say on balance the failure to issue a final EHCP caused Y’s behavioural change and refusal to attend school, there are too many other factors involved. But it would certainly have placed her at a disadvantage during a vital year of preparation for her GCSE’s. I recommend a payment of £300 to acknowledge this disadvantage.

Maths tuition

19. At the annual review of Y’s EHCP in November 2018 the maths teacher reported a change in Y’s behaviour and that Y appeared disinterested and unmotivated. It was noted that Y had missed three lessons since the start of the school term.
20. In December 2018 Mr and Ms X contacted the Council and requested an increase in funding for Y to remain at her current school. The level of provision requested included SEN specialist math tuition at school at a cost of £4,560 (£60 per hour based on two lessons per week). The decision was taken to Panel on 12 December 2018 and was declined on the basis that the Panel did not consider Y required specialist maths support and the school could provide additional tuition support.
21. The EHCP finalised in December 2019 included extra one to one maths support provided by a trained maths teacher with additional maths tuition one hour per week from a tutor into outside school.
22. It is Mr and Ms X’s view that they requested specialist maths tuition in May 2018. But the evidence does not support this. The request made in December 2018 was declined by the Panel. I find no fault here. However, the provision was included in Y’s EHCP in December 2019. The Council accepts that it failed to provide this and therefore failed to meet Y’s education needs. Therefore, it is not necessary for me to investigate this aspect of Mr X’s complaint any further. However, I must consider the injustice caused by the fault.
23. A EHCP is a legal document and there is a non- delegable duty on councils to secure the special educational provision in Section F of a Plan. Councils are required to arrange educational provision for the date a plan is issued. Y did not receive the maths tuition that should have been in place from December 2019, and this placed her at a disadvantage. In recognition of this the Council has offered to pay Mr X £2100 to be used for extra additional support for Y and the loss of educational provision. I am satisfied with this proposal by the Council.

Communication and record keeping

24. The Council acknowledged and apologised to Mr X for the lack of continuity of case management of Y’s EHCP and educational needs, resulting in serious lapses in communication and poor record keeping. The Council recognised the family received a poor service. Mr X was left feeling disappointed and frustrated by the Council’s approach and spent a considerable amount of time and trouble complaining and chasing the Council. To remedy the injustice caused, the Council has offered to pay Mr X £100 for the time and trouble in complaining. I welcome this proposal, however, on review of this case, I recommend a payment of £200. The Council has also offered to pay £500 for distress and inconvenience caused to both Y and her parents. I am satisfied with this proposal by the Council.

Service Improvements

25. A local area SEND inspection in November 2019 found a significant weakness in the EHC assessment and planning process. The local area has been provided with a Written Statement of Action setting out the improvements being implemented. The Council appointed a consultant to help implement the necessary improvements. I understand that Mr X had the opportunity to speak with the consultant and provided feedback. The Council has already made several service improvements including:

• the special needs assessment service has undergone a restructure, increasing its capacity to ensure new EHCP assessments are completed within timescales with good quality reviews;
• appointing a new Head of SEND;
• a new permanent manager for the special needs assessment service;
• recruiting of permanent staff to reducing its reliance on agency staff;
• improved IT systems with the capability to streamline internal processes;
• multi agency working group that undertakes monitoring of improvements;
• reintroducing Personal Outcomes Evaluation Tool (POET) to collect views from parents, children, young people, and practitioners with regards to EHCP and SEN support;
• investing in staff training within the special needs assessment service.

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Agreed action

26. Within one month of this final decision the Council will:
1. formally apologise for the faults identified in this statement;
2. pay Mr X £250 to recognise the injustice caused in the form of missed appeal rights caused by the delay in issuing the annual review decision;
3. pay Mr X £300 to recognise the injustice caused to Y by not having an up to date EHCP at a significant time in her schooling. Mr X should use this money for Y’s educational benefit as he sees best;
4. pay Mr X £2100 to recognise the failure to make maths provision from December 2019 and to acknowledge the significant impact of this on Y. Mr X should use this money for Y’s educational benefit as he sees best;
5. pay Mr X £200 to recognise the significant time and trouble and frustration he was caused in having to repeatedly chase the Council and pursue his complaint;
6. pay the family £500 for avoidable, distress and uncertainty caused by the Council’s faults.
27. Within three months of my final decision on this complaint the Council will provide the Ombudsman with evidence of progress with the Written Statement of Action.

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Final decision

28. I have found fault by the Council causing injustice. The Council has agreed to my recommendations, and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman