Summary: There was fault by the Council in failing to update an Education, Health and Care Plan in a timely way and in failing to resolve Mr X’s concerns a school was not providing all the provision in the Plan. This was fault and caused unnecessary time, stress and frustration to Mr X. It also meant Mr X’s son’s Plan did not reflect the current needs for an extended period. Recommendations for an apology, financial payment and service improvements are made.

The complaint

1. Mr X complains on his own behalf and on behalf of his son that the Council:
• Delayed in completing an annual review of his son’s Education, Health and Care (EHC) Plan in 2019;
• Delayed in amending the EHC plan after the review;
• Failed to meet a deadline agreed in the complaint process for the final EHC plan to be issued by 30 September 2020, issuing it in March 2021;
• Failed to ensure provision in Section F of the EHC plan was in place in breach of Section 42 of the Children and Families Act 2014;
• Failed to provide social care provision set out in the social care section of the Plan after February 2020.
2. Mr X says that due to the fault his son has had an out of date EHC plan, provision in the Plan has not been provided and he has been put to unnecessary time and trouble chasing up the Council. Mr X estimates he has spent one hundred hours since the 2019 review getting Y’s Plan updated. Mr X says that he feels the Council did not care whether the EHC plan accurately reflected his son’s needs.

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What I have investigated

3. I have investigated the above complaint issues except for the complaint about social care. This is premature for the Ombudsman to consider as the Council has not yet had a chance to consider this matter through the children’s social care statutory complaint procedure.

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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. This complaint involves events that occurred before and during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance in response to Covid-19. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate:
• We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
• We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
8. 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

9. I considered information provided by Mr X and the Council including the complaint correspondence and documents relating to Mr X’s son’s special educational needs.
10. I considered the relevant law and guidance including:
• The Children and Families Act 2014
• The Special Educational Needs and Disability Regulations (‘The Regulations’) and Code of Practice (‘The Code’) and amendments to these during Covid-19
• The Ombudsman’s Guidance on Remedies and Good Administrative Practice during the response to COVID-19.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

Relevant law and guidance

13. A child with special educational needs may have an Education, Health and Care (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 tribunal can do this.

14. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place (s.42 Children and Families Act 2014). 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.

Scope of investigation

15. I have not investigated the complaint about children’s social care as this is premature for the Ombudsman to consider. The complaint about social care was not considered as part of the education complaint and was raised by Mr X later when his son’s respite was reduced in February 2020.
16. Mr X has now made a separate complaint about social care and the Council is currently considering this. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. If Mr X remains dissatisfied at the end of this process he can ask the Ombudsman to consider the complaint.
17. I have considered the period from the 2019 annual review onwards. I have set out some historical information for context, but I have not investigated delays prior to December 2019. Mr X could have brought these matters to the Ombudsman sooner. These were also not matters included in his complaint to the Council. The Ombudsman cannot consider complaints where the Council has not first had an opportunity to comment.

What happened

18. Mr X’s son, whom I shall refer to as Y, has special educational needs (SEN).
19. The Council started an EHC assessment for Y in March 2016 and issued a final EHC plan for Y in mid-July 2017. The Council should have issued the final Plan within twenty weeks (SEND Regulation 13(2)) but took sixteen months.
20. Mr X says he raised concerns about delay with the Council repeatedly at that time including at child in need meetings for Y.
21. Y was attending a special school and in September 2017 transferred to a new school. Both schools were named on the final Plan issued in July 2017.
22. The Plan stated that Y, who has hearing loss, would use a radio aid and sound field system in school.
23. The chronology Mr X sent me suggests Mr X was trying to get the Plan updated throughout 2018 and that he raised concerns in September 2018 that some aspects of Section F (special educational provision) were not in place.
24. The Council told me that the Plan was not amended in 2018 or 2019.
25. EHC plans need to be reviewed at least annually from the date they were issued to ensure they remain up to date.
26. The School arranged the annual review meeting for early December 2019.
27. Mr X says there were several problems with the meeting:
• The reports were not circulated two weeks prior to the meeting as required by the Code
• Advice received by a specialist teacher for the deaf was not circulated two weeks prior to the meeting as required by the Code, but only ‘discovered by the School mid-meeting’
• Parent’s report for the review had not been read by other attendees
• The School provided a new report mid-meeting which was different to that previously shared with parents
• Parents discovered that Y had not been using his radio aid in school.
• Social care was apparently not invited to the annual review.
28. Mr X says it was agreed at the review the Plan needed to be updated and the Council’s SEN officer said a draft would be provided by mid-January 2020.
29. Mr X said that his wife emailed the specialist teacher and asked her to reinforce use of the radio aid in school. The teacher confirmed in mid-January she had done so and offered further training.
30. Mr X complained in mid-January 2020 when the draft amended EHC plan did not arrive. The SEN officer said they had other priorities until mid-February but would then make Y’s draft a priority and Mr X could expect it around February half-term.
31. Mr X chased it in May and also raised concerns about the delay at a child in need meeting. Social care agreed to chase the draft and escalate it with the SEND Manager. This led to a promise the draft would be issued by 5 June. Parents received a draft on 24 June 2020 with a letter dated 8 June asking for comments within 15 days of 8 June.
32. Mr X told me it was obvious the draft had not been updated to include comments made at the 2019 annual review.
33. On 6 July Mr X provided amendments to the draft. Mr X also made a formal complaint on 17 July.
34. Y returned to school in July after ‘lockdown’ restrictions due to Covid-19. Mr X complained Y’s radio aid had not been available on days Y had attended. Mr X had a meeting with the headteacher on 21 July about this and other aspects of the 2017 EHC plan which were not being implemented.
35. The Council provided a stage one complaint response in August upholding Mr X’s complaint about delay in amending the EHC plan. It did not uphold a complaint against the Council for the errors in the annual review meeting process as the meeting was arranged by the school. The Council said it was introducing new processes to prevent a recurrence of previous delays.
36. The Council acknowledged it received the annual review paperwork on 18 December 2019 and should have made a decision whether to amend within four weeks. It acknowledged it did not do this and the next action was a draft plan issued on 24 June 2020.
37. With regard to provision in Section F of the Plan not being in place the Council said it would take this up with the school, but also signposted Mr X to the School’s complaint process.
38. Mr X asked for the complaint to be escalated to stage two. Mr X provided further information about aspects of the EHC plan not being implemented, errors in the draft and concerns about the process.
39. At stage two the Council told Mr X the SEN team had been under capacity at a time when demand for EHC plans was increasing. It said it had recruited additional officers to the team and the Council had been required to submit a written statement of improvement to which it was being held to account by the Department of Education and the Care Quality Commission. It confirmed annual review processes had been identified as an area for improvement and a review was ongoing with new digital processes, guidance and paperwork being provided to schools which would be rolled out in October 2020.
40. The Council promised in the complaint response the amended final Plan would be issued by 30 September 2020. Mr X says instead of a final plan they received another draft in September which continued to contain many of the same errors he had previously highlighted. Mr X provided his amendments again on 3 October.
41. Y’s next annual review meeting was held on 30 November 2020 although the previous review had not yet been completed as the final Plan was outstanding.
42. I made enquiries of the Council on 8 March 2021.
43. Mr X received a final Plan for Y on 24 March 2021, although the Council told me this was issued on 12 February. Mr X says he received a further draft on 14 February electronically which may be the document the Council is referring to. Mr X told me the 24 March document was the first document received in hard copy with a letter giving appeal rights.
44. The Council told me that it has a linked EHC plan Officer assigned to working with the School. It says the Officer has regular liaison meetings with the School to discuss cases and to ensure that any issues around the deliverance of plans were identified. The Council advises me that Y’s plan was discussed regularly during these meetings throughout 2020 but that no minutes of these informal meetings are kept.
45. Mr X told me that after he met with the Headteacher in Summer 2020 the radio aid was used in school and the part of his complaint about failure to provide Section F provision was resolved.

Analysis

Fault

46. The Council is correct to say that annual review meetings can be delegated to schools and it is then the school’s responsibility to invite the correct people and circulate the information in time. The Ombudsman cannot comment on the actions of Y’s school as schools do not fall within our jurisdiction.
47. The Council’s role was to make a decision within four weeks of the annual review meeting and to notify the parents of this decision. It had to decide whether to maintain the plan, amend the plan, or cease the plan. When it decides to amend, the SEND Regulations do not state a timeframe within which this must happen, but the Code says the Council should start the process of amendment without delay (The Code paragraph 9.176). The Council should send the draft amended plan to the parents with an Amendment Notice seeking comments and ensure the final Plan is issued within eight weeks of the Amendment Notice.
48. The Council did not issue a draft Plan until June 2020, seven months after the meeting. This was fault. The Council accepted in its complaint response this was an unacceptable delay. While the Government did relax some timescales relating to EHC processes due to Covid-19 on 1 May 2020, Y’s Plan should have been finalised before these changes came into effect.
49. The Council also delayed after June 2020 in issuing the final version of the Plan. This was not issued for nine months after the first draft, and then only after the involvement of this office. This was fault. The final plan should have been issued within eight weeks of the first draft. Again, while this period spanned the first Covid-19 ‘lockdown’, the Government’s relaxion of the timescales ended on 25 September 2020 and Covid-19 is not a satisfactory explanation for the ongoing delay when a specific date was promised as an action from the complaint process.
50. The Council is responsible for ensuring special educational provision set out in Section F of an EHC plan is secured. During the first Covid-19 ‘lockdown’ (May to September 2020) this duty was altered from an absolute duty to a ‘reasonable endeavours’ duty.
51. The Ombudsman does not expect councils to keep a ‘watching brief’ on provision for every child with an EHC plan. This would not be practical. The Ombudsman would however expect a Council to check with the school and family that provision was in place when a first or significantly changed plan was issued, at annual reviews, and at any time that concerns are raised that provision is not in place. It is also reasonable for the Council to expect schools to deliver day to day aspects of the provision where adequate funding and training has been provided. When concerns are raised, we would expect Councils to challenge schools and perhaps, if matters are not quickly resolved, facilitate meetings between the Council, school and parents. The duty to secure the provision lies with the Council and it must intervene to ensure that Section F is fully in place.
52. The Council says it did raise Mr X’s concerns during meetings with the school but cannot evidence this. I would have expected the Council to be able to evidence that it had updated Mr X after such meetings so he knew what had been discussed and agreed. There is no evidence it did so. Without this information Mr X would not know what the Council had done about his complaint. The absence of any evidence, even emails to Mr X, casts doubt on whether the Council did intervene with the school about the failure to fully implement the EHC plan. If the Council did intervene then it is unclear why this did not rectify the problem with the radio aid not being used.
53. I find there is not enough evidence to show the Council did resolve the issues with the School. It seems more likely that these were resolved via Mr X’s direct complaint to the school following his meeting with the Headteacher.

Injustice

54. A comparison of the 2017 and 2021 final plans show that some factual information has been updated and expanded, the provision is more ‘SMART’, and some extra detail has been added to Section F. However, it is not the case that Y has been missing out on extra hours of support or therapy during the period his Plan was not updated. The overall educational package is broadly similar and he continued to attend a specialist school.
55. The injustice to Y is that school staff may not have been fully aware of his current needs, but there is no evidence that provision was missed out on during the period of delay.
56. With regard to the School’s implementation of the EHC Plan that was in force, Mr X identified shortfalls in the provision being made and Mr X resolved these direct with the school. While it would have been good practice for the Council to have resolved this with the school without the need for Mr X to make a complaint to the school, this would not have changed the outcome. There would still have been a period when the family and Council were unaware the Plan was not being followed and a period when the School was challenged to correct this.
57. The injustice that arises from the Council’s fault is in the main Mr X’s time and trouble seeking an updated EHC plan and in doing the Council’s job of ensuring the Plan was fully implemented.
58. In its response to my enquiries the Council has acknowledged there was delay in respect of the 2018 review and 2019 review and has offered £200 as an acknowledgment of the ‘time and energy expended by Mr X in chasing the Authority to fulfil its obligations’ for each review (a total payment of £400). The Council says that throughout Y has attended a highly rated school and reviews have shown that he is making progress.
59. The 2018 review is not within the remit of this investigation and there is no basis for me to question the sufficiency of a payment of £200 for that delay.
60. The Ombudsman’s Guidance on Remedies sets out the basis on which we will consider recommending financial payments for non-financial loss. This includes payments to acknowledge raised expectations (when a complainant is led to believe an action would be taken by the Council), stress, frustration and inconvenience. Payments are usually in the region of £100 to £300, although where fault has caused severe distress for a prolonged period a payment up to £1000 may be justified.

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Agreed action

Within four weeks of my final decision:

61. In addition to the £200 payment to Mr X in respect of the 2018 review (which is outside the scope of this investigation), the Council will pay:
• Mr X £300 for the time, trouble, stress, frustration and inconvenience in obtaining an updated Plan after the 2019 review and in ensuring the Plan was implemented by the School.
• Y £300 for the period when his EHC Plan was not as up to date as it should have been and when staff working with him would not have had an accurate picture of his needs or the provision and strategies to meet those needs.
62. The Council provide a written apology to Mr X and Y for the faults identified in this investigation.

Within eight weeks of my final decision:

63. The Council review its processes for when it receives a complaint that a school is not providing special educational provision (Section F) of an EHC plan to ensure that:
• Prompt challenge is provided to schools.
• Families are kept informed of any actions the Council is taking with the school and the outcome.
• Where appropriate, meetings with a school are facilitated by the Council rather than suggesting families seek to resolve problems with Section F provision themselves via the school complaint procedure. The Council should consider whether families should be included in such meetings.
• The Council can evidence that any such complaint has been investigated and resolved so the Council can be sure its duty under s.42 Children and Family Act to secure the provision has been fully discharged and can demonstrate that fact.
64. I have not made recommendations about the delays in the annual review process as these are already being addressed through the Council’s written statement of improvement. It should however be noted that the delay in issuing a final Plan for Y continued after Autumn 2020 (when steps to resolve systemic problems with the service were rolled out) which may indicate that lack of capacity remains an issue within the SEN team, although it may be that Covid-19 has also been a factor.

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Investigator's decision on behalf of the Ombudsman