Summary: Mr X complained the Council failed to take his views into account and failed to meet with him to discuss his child’s draft Education, Health and Care plan. He says the final plan did not meet his child’s needs and he was put to time and trouble collecting evidence he could not present. We have found fault by the Council and the Council has agreed to apologise to Mr X and make a payment to recognise the injustice caused.

The complaint

1. Mr X complains the Council failed to take his views into account while assessing his child’s special educational needs. He also complains the Council failed to meet with him to discuss the draft Education, Health and Care plan and the amended draft Education, Health and Care plan.
2. Mr X says he was put to time and trouble by collecting evidence he could not present, and the final Education, Health and Care plan did not meet his child’s needs.

Back to top

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. 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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education. Only the tribunal can do this.
7. The courts have said where a complainant has appealed to the tribunal, we cannot investigate a council’s decision relating to the provision of alternative education pending the appeal, nor seek a remedy for the council’s failures.
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)
9. Under our information sharing agreement, we will share our decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

10. I have discussed the complaint with Mr X and considered the information he provided.
11. I have made enquiries to the Council and considered the information it provided.
12. Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
13. I have also considered the relevant legislation and statutory guidance as set out below.

Back to top

What I found

Special Educational Needs and Education, Health and Care plans

14. A child or young person has Special Educational Needs if they have a learning difficulty or disability which calls for special educational provision to be made for them. Most children have these needs met within local early years, mainstream school or college settings. Support at this level is called SEN support.
15. Some may require an Education, Health and Care assessment for the local authority to decide whether it is necessary to make provision in accordance with an Education, Health and Care plan (EHCP).
16. The purpose of an EHCP is to make special educational provision to meet the child or young person’s special educational needs. It is also to secure the best possible outcomes for them across education, health and social care and, as they get older, prepare them for adulthood.
17. The Children and Families Act 2014 (‘the Act’), the Special Educational Needs Code of Practice 2015 (‘the Code’) and the Special Educational Needs and Disabilities Regulations 2014 (‘the Regulations’) provide detailed guidance to councils about how they should manage the process of:

• assessing children and young people for an EHCP;
• how to decide whether to issue a plan;
• the content of the plan, and
• how to implement, monitor or cease a plan.

18. If parents or a young person disagrees with the content of an EHCP, they can appeal the First Tier Tribunal Special Educational Needs and Disabilities (SEND) Tribunal.

Special Educational Needs (SEN) Code of Practice

19. The Code says councils are responsible for ensuring there is effective co-ordination of the assessment and development process for an EHCP. The co-ordination should include timing meetings to minimise family disruption. (Special educational needs and disability code of practice: 0 to 25 years, paragraph 9.30)
20. The Code says councils must send the draft EHCP to the child’s parent or to the young person and give them at least 15 days to give views and make representations on the content. During this period, councils must make its officers available for a meeting with the child’s parent or the young person on request if they wish to discuss the content of the draft EHCP. (Special educational needs and disability code of practice: 0 to 25 years, paragraph 9.77)
21. Where councils do not agree the changes suggested by the child’s parent or the young person, they may still proceed to issue the final EHCP. Councils must tell the child’s parent or the young person of their right to appeal to the Tribunal and the time limit for doing so. (Special educational needs and disability code of practice: 0 to 25 years, paragraph 9.126)
22. Councils may amend EHCPs where there are changes in health or social care provision resulting from minor or specific changes in circumstances, but where a full review or re-assessment is not necessary. In such cases, councils must provide the child’s parent or the young person with details of the proposed changes and tell them they may request a meeting with the local authority to discuss the proposed changes. (Special educational needs and disability code of practice: 0 to 25 years, paragraphs 9.193 and 9.194)

What happened

23. In December 2019, Mr X asked the Council to carry out an assessment to determine if it would provide an EHCP to his child, Child A. Child A has a diagnosis of autism spectrum disorder and cognitive delay.
24. In January 2020, the Council told Mr X it agreed an assessment was appropriate. It wrote to several professionals, including Child A’s school and a Speech and Language Therapist (SaLT) to obtain evidence to assist in preparing the EHCP.
25. On 6 April 2020, the Council sent Mr X the draft EHCP. As part of the provision specified in the draft, it said Child A should receive a minimum of three visits per year from the SaLT. The draft EHCP also made provision for 1:3 supervision for Child A at breaktimes and the equivalent of 25 hours per week support from a Teaching Assistant. The draft also specified that teaching staff would provide appropriate risk assessments and supervision for Child A when they went on school trips.
26. Mr X contacted the Council on 15 April 2020 and provided comments on the draft EHCP. He said the SaLT provision in the draft was inadequate and should be increased to weekly sessions. He also said Child A required 1:1 supervision at breaktimes instead of the 1:3 supervision proposed by the draft EHCP. Mr X said this was because Child A has no danger awareness and had injured themselves during breaktimes on several occasions.
27. Mr X also said Child A required 30 hours per week support instead of the proposed 25 hours. He asked for the plan to state that he or his partner could go with Child A on school trips.
28. On 23 April 2020, the Council called Mr X to discuss the draft EHCP and the comments he had provided.
29. Mr X emailed the Council on the same day and asked it not to proceed in issuing the final EHCP until he had sought legal advice.
30. The Council replied on 24 April 2020 and said it acknowledged Mr X’s concerns about the SaLT provision. However, it said it had spoken to the therapist and they confirmed they felt the provision specified in their report met Child A’s needs.
31. The Council said Child A’s school had confirmed it could meet their needs. It also said the school would carry out risk assessments for school trips and that this addressed Mr X’s request for him or his partner to accompany Child A. The Council said it and Mr X had discussed his concerns and given a rationale as to why his requests for changes to the draft EHCP could not be made. It said it would finalise the EHCP on 28 April 2020 in line with the statutory deadline.

The final EHCP

32. On 28 April 2020, the Council issued the final EHCP.
33. The Council emailed Mr X on 7 May 2020. It said it acknowledged Mr X felt the plan did not meet Child A’s needs and suggested an early review of the EHCP once Covid-19 restrictions had been lifted. The Council said this would be a good opportunity to meet Mr X in person to discuss the plan.
34. On 16 May 2020, Mr X emailed the Council and told it he had not received the final EHCP. He said he felt Child A’s needs were not being met and said the Council had not arranged a meeting with to him discuss the plan, despite his requests.
35. The Council replied on 29 May 2020. It said it had not arranged a meeting in person because of the Covid-19 restrictions but said it had discussed Mr X’s concerns with him in the telephone call on 23 April 2020. The Council said it could arrange a further meeting to be held online, or in person once restrictions had been lifted.
36. The Council also told Mr X it had received an email from the SaLT who had requested an amendment to the EHCP. It said the wording of the EHCP would be changed to say Child A would receive at least three contacts from the SaLT with the option of an additional block(s) of therapy as appropriate. The Council suggested arranging an online meeting to discuss Mr X’s concerns further.
37. Mr X emailed the Council on 1 June 2020. He said he had made several requests for a meeting to discuss the draft EHCP, but the Council had not arranged this. He said the Council telephoned him unannounced on 23 April 2020 and did not explain the call was in place of the meeting. Mr X said he remained unhappy with the content of the plan, specifically regarding a lack of detail about the speech therapy sessions, and the level of supervision at breaktimes. He asked for a copy of the plan and for clarification as to whether the Council had finalised it.
38. Mr X contacted the Council again on 8 June 2020 to request a response to his email of 1 June 2020.
39. On 12 June 2020, the Council replied to Mr X. It confirmed the additional wording provided by the SaLT and told Mr X it would amend the EHCP if he gave his agreement. The Council maintained it had discussed Mr X’s concerns with him over the telephone and reminded him it had suggested holding an early annual review. The Council confirmed it had sent a copy of the final EHCP via email and provided an additional copy.
40. Mr X replied on 15 June 2020. He said the EHCP was not satisfactory and made no provision for 1:1 supervision at breaktimes and no arrangements for after-school pick up. Mr X said the Council had ignored his requests to meet to discuss the plan while it was still in its draft state, and that it was too vague.

The draft amended EHCP

41. On 9 July 2020, the Council issued the draft amended plan which included the wording requested by the SaLT. The level of supervision at breaktimes remained at 1:3 and the number of hours of Teaching Assistant support remained at 25 hours per week.
42. On 22 July 2020, Mr X emailed the Council to confirm receipt. He said he had already provided details of his concerns with the EHCP and said he was still unhappy with its content. Mr X said he would like to meet with the Council as he hoped to negotiate the changes he considered were necessary.
43. The Council replied on 17 August 2020. It said it acknowledged Mr X had concerns about the plan but said it had requested the final amended EHCP to be issued. The Council said it was happy to meet with Mr X and the professionals involved in the plan and said it had emailed the school to request a meeting once the school returned in September.
44. Mr X says he replied to the Council the next day and asked it not to finalise the EHCP. He says he told the Council he was entitled to a meeting and requested that this took place.
45. On 22 September 2020, the Council issued the final amended EHCP. The provision stated by the plan remained the same as the draft amended plan.

Mr X’s complaint

46. Mr X complained to the Council on the same day. He said the EHCP had been issued without following the correct legal process and the Council had ignored his telephone calls and emails.
47. The Council emailed Mr X on 23 September 2020. It maintained it had called Mr X to discuss the original draft EHCP in response to his request for a meeting. It also acknowledged the Council had not pre-arranged the telephone call. The Council said it checked with Mr X during the call to make sure it was a convenient time to discuss his concerns and said Mr X had confirmed it was suitable.
48. The Council said because Mr X had said he was happy to proceed, it understood this call to be the meeting he had requested. It said the content of the telephone call was what would have normally been discussed in a meeting about the draft EHCP. The Council apologised for any misunderstanding about the intention or purpose of the call, and while it said it considered the meeting had taken place, it acknowledged it could have been clearer about it.
49. The Council said that following the issue of the draft amended EHCP, it believed Mr X had no further comments or changes to make other than those it had already stated it could not make. It said on this basis, it believed it did not require a meeting. The Council acknowledged this action was incorrect and a meeting should have been made available to Mr X. It apologised and said training had been given to the relevant officer to address this issue.
50. Mr X replied on 24 September 2020. He said he told the officer who called on 23 April that it was not the best time to speak but they continued anyway. He acknowledged he thought the call was to discuss the points he had raised but said the officer did not explain the call was intended to replace the meeting he had requested.

The Council’s complaint response

51. The Council provided its Stage 1 complaint response to Mr X on 8 October 2020. It referred to its response of 23 September 2020 and confirmed the SEN officer was under the impression the Council had fulfilled Mr X’s request for a meeting in April 2020. It acknowledged Mr X had a different view as to what constituted as the meeting but said it had fulfilled its duty through the limited means available during the Covid-19 restrictions. The Council acknowledged however, that a meeting was not offered following the issue of the draft amended EHCP and accepted this was an error.
52. On 8 October 2020, Mr X told the Council he was dissatisfied with its response and disagreed with various points contained within its letter. Mr X asked for his complaint to be reviewed further, for the EHCP to be reverted to a draft plan and for a meeting to be held so that he could discuss the provision of the EHCP.
53. Mr X appealed to the SEND Tribunal on 23 October 2020.
54. The Council provided its Stage 2 complaint response on 6 November 2020. It said there was a difference of understanding between the Council and Mr X about the meeting to discuss the draft EHCP. The Council did not uphold this aspect of the complaint. However, the Council apologised for not offering a meeting to discuss the draft amended plan. It offered to arrange a meeting with Mr X and a mediator so that he could discuss the contents of the EHCP. It also said the annual review process could address any amendments.
55. Mr X remained dissatisfied with the Council’s response and brought his complaint to us in November 2020.

What happened next

56. Mr X received the SEND Tribunal’s decision on 19 March 2021. It ordered the Council to issue an amended version of the EHCP to include 27.5 hours support per week from a Teaching Assistant and 1:1 supervision for Child A during breaktimes.

Analysis – requests for a meeting to discuss the draft EHCP

57. Mr X says he called the Council on several occasions to ask for a meeting while the EHCP was in its draft form. Although I have not seen evidence of these requests, Mr X’s email of 16 May 2020 supports his explanation that he contacted the Council to request a meeting. The Council confirms it was communicating with Mr X via telephone until June 2020. After this date, Mr X requested communication with the Council in writing.
58. The Council says it did provide a meeting with Mr X while the EHCP was in its draft form, and that this was the telephone call conducted on 23 April 2020. It says Mr X told the SEN officer it was a convenient time to discuss the EHCP, and it discussed Mr X’s concerns about provision in the same way it would normally discuss such issues in a meeting.
59. Mr X says he told the SEN officer it was not a convenient time to discuss the EHCP due to family circumstances at the time. He says the call cut out several times due to a poor telephone signal and that he texted the SEN officer to say the call time was not appropriate. Mr X also says he told the SEN officer he did not have any paperwork to hand and so could not discuss his concerns in detail. He says the officer did not tell him the call was intended to act as the meeting he had requested.
60. It is not possible to determine exactly what was said during the call. However, the Council has confirmed it did not pre-arrange the call, and there is no evidence to indicate Mr X was told the call was to be regarded as the meeting he had requested. In addition, while the Council later offered to arrange a virtual meeting to discuss Mr X’s concerns, (after the final EHCP had been issued), there is no evidence to show it offered this facility to Mr X while the plan was at the draft stage. The Council also acknowledged it could have been clearer about explaining the purpose of the call to Mr X.
61. As stated at paragraph 19, the Code of Practice says councils are responsible for ensuring effective co-ordination of the assessment and development of an EHCP. This includes timing meetings to minimise family disruption. The Council did not pre-arrange the telephone call on 23 April 2020, and therefore did not allow Mr X time to prepare for the discussion. I consider this, together with a lack of explanation as to the purpose of the call is evidence the Council did not effectively co-ordinate the assessment of the plan on this occasion. This is fault by the Council.

Requests for a meeting to discuss the draft amended EHCP

62. The Code of Practice says if a council proposes to amend an EHCP, it must send the child’s parents a copy of the existing plan and an accompanying notice giving details of the proposed amendments. The Council should also inform the parents they may request a meeting to discuss the proposed changes.
63. The Council proposed changes to the final EHCP following a request from the SaLT to include part of their recommendations which had been omitted from the plan. I have seen an email dated 12 June 2020 from the Council informing Mr X of the proposed changes and requesting his approval before the plan was amended. I do not therefore find fault by the Council for issuing the draft amended plan on 9 July 2020.
64. However, the Code of Practice says councils must give parents time to provide their views on the EHCP while it is in its draft state and make its officers available for a meeting during this period. This applied to the amended plan while it was in its draft form.
65. The Council has provided several emails from Mr X in which he requested a meeting. Many of these emails date from after the date of the final EHCP and before the date of the draft amended EHCP. However, Mr X emailed the Council on 22 July 2020 (after the draft amended plan) to request a meeting.
66. The Council acknowledges it did not offer a meeting following the issue of the draft amended plan and acknowledges this was an error. I agree with the Council that it should have arranged a meeting with Mr X as requested. This is fault by the Council.

Consideration of Mr X’s views

67. Mr X says the Council did not take his views into account and that his requests were ignored. The Council says it did consider Mr X’s views but was unable to provide all the provision he requested without a recommendation from the professionals who were consulted.
68. Having reviewed the evidence, I am satisfied Mr X’s views regarding the provision he requested for Child A were considered. This is because I have seen the Council’s correspondence with Mr X in which it addressed his concerns about the frequency of the SaLT sessions, the level of supervision for Child A and the number of hours of Teaching Assistant support. I acknowledge some of these concerns were addressed by the Tribunal and the plan was subsequently amended. However, the Tribunal’s decision to amend the plan is not evidence the Council did not consider Mr X’s views about provision.
69. However, as previously stated, the Council did not arrange a meeting with Mr X as requested. In this aspect, the Council did not consider Mr X’s views about his wish to attend a meeting. The Council is at fault as a result.

Was there injustice?

70. Having identified fault, I must consider if this caused a significant injustice to Mr X and/or Child A. The Council says although a meeting should have taken place after the draft amended plan was issued, this did not cause an injustice because a meeting would not have changed the plan.
71. The purpose of a meeting is for the Council to hear and discuss the child’s parents’ views and representations, and to make amendments as appropriate, based on these views. The Council is unable to know what additional representations and/or evidence Mr X may have presented at the meeting. On this basis, the Council is unable to make a determination the plan would have remained unchanged had the meeting taken place.
72. Mr X says the lack of a meeting caused him frustration, stress and worry about sending Child A to school without the requested level of supervision. He says he also spent a lot of time trying to arrange a meeting which did not take place. Mr X also says there is an injustice to Child A as they incurred injuries during breaktimes at school because of insufficient supervision. He says Child A was placed at risk of further injury while the required level of supervision was not provided.
73. Having reviewed Mr X’s and the Council’s comments, I consider there is an injustice to Mr X and to Child A. This is because the Council cannot know what the outcome of the proposed meeting would have been without holding the meeting and hearing Mr X’s representations.

Back to top

Agreed action

74. To address the fault identified, the Council has agreed to take the following action within one month of the final decision:

• Provide an apology to Mr X;
• Make a payment of £100 to Mr X in recognition of the time and trouble taken in bringing his complaint to us;
• Make a payment of £150 to Mr X in recognition of the frustration and stress caused by failing to arrange a meeting to discuss the EHCP;
• Make a further payment of £150 to Mr X to be used for the benefit of Child A. This is because Child A received injuries during breaktimes while at school. The payment is in recognition of the uncertainty caused from failing to hold a meeting for the period the EHCP was in its draft form. It is uncertain if the Council would have made the decision to amend the level of supervision had the meeting gone ahead. This uncertainty caused an injustice to Child A;
• Remind staff that officers must be available for a meeting with the child’s parent or the young person on request if they wish to discuss the content of the draft EHCP, and

• Remind staff to ensure there is effective co-ordination of the assessment and development process for an EHCP, including timing meetings to minimise family disruption.

Back to top

Final decision

75. I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman