Summary: Mr X complained about the Council’s delay in issuing his son’s Education Health and Care plan following an annual review and the lack of Occupational Therapy Sessions. We have discontinued our investigation as it is unlikely that we would achieve any additional outcomes for Mr X.

The complaint

1. Mr X complained about the delay in issuing his child’s Education Health and Care (EHC) plan following an annual review. He further complained about the lack of provision of Occupational Therapy sessions since September 2020 included in the EHC plan.
2. He says the delay caused him and his family distress, whilst the lack of Occupational Therapy sessions deprived his child, Y, of the support that he was entitled to.
3. Mr X would like the Council to provide retrospective Occupational Therapy sessions for his son.

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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’. We provide a free service, but must use public money carefully.
5. We may decide not to start or continue with an investigation if we believe it is unlikely we could add to any previous investigation by the Council. Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I considered the information provided by Mr X and the Council’s response to her complaint.
7. I have considered the relevant legislation and statutory guidance, set out below.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Education Health and Care plans

9. 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.
10. 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.
11. An annual review is a meeting where the local authority reviews the EHC plan. It will consider the progress towards achieving the outcomes written in the EHC plan and whether anything has changed.
12. After the review, the Council has four weeks to send the child’s parents a decision notice. This outlines whether the EHC plan is to continue; whether it needs changing or if it is to end. If the Council decides to amend the EHC plan it must do that without delay. It must issue an amendment notice detailing the proposed amendments. The parents or young person must be given 15 calendar days to comment on the proposed changes. If the Council decides to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the original amendment notice.

What happened

13. Y had an EHC plan. That included a personal budget for Occupational Therapy (OT) and tutors. In July 2020 the Council held Y’s Annual Review meeting.
14. In September 2020, Mr X complained to the Council about the delay in issuing the final EHC plan for Y. He said that meant he was uncertain whether Y’s personal budget would continue.
15. The Council replied to Mr X and said it sent him a letter of intent to amend Y’s EHC plan in August. It agreed the letter was delayed by three days. It also said that Mr X disputed this and said he never received the notice of intent to amend Y’s EHC plan. The Council also said that it asked the Governance Board to approve Y’s new personal budget because the most recent budget was agreed until July 2020.
16. Mr X was unhappy with the Council’s response and he escalated his complaint to the next stage of the complaints process.
17. The Council wrote to Mr X further. It agreed the Council had delayed in issuing the final EHC plan for Y and that Mr X had gone to some time and trouble in the pursuit of his complaint. The Council offered a financial remedy to Mr X and Y. Additionally, the investigating officer recommended that the Special Educational Needs and Disability (SEND) Service provide refresher training to the SEND Case Officers in respect of annual reviews where there are personal budgets in place.
18. Approximately two weeks after this Mrs X complained to the Ombudsman. He said the Council had not issued Y’s EHC plan. Mr X disagreed with some of the changes made to the EHC plan.
19. Mr X further complained about the lack of Occupational Therapy (OT) provision that was included in Y’s EHC plan. He said that this deprived Y of the support that he was entitled to. Mr X said that he would like to Council to apologise and he would like it to provide backdated OT sessions to Y.
20. The Council did not respond to Mr X’s complaint and he escalated it to stage two investigation. In January 2021 the Council agreed to investigate Mr X’s complaint about the lack of OT provision.
21. The investigating officer found the Council failed to put in place the OT provision specified in the EHC plan. It also identified it had failed to respond to Mr X when he complained in December 2020. Following the investigation the Council said it would:
• Apologise to Mr X for not responding to his complaint, exceeding the statutory timeframes for issuing the final EHC plan for Y and not securing OT provision for Y.
• Immediately liaise with OT service to request up-to-date report and decide if it was appropriate for Y to have catch up OT sessions,
• Finalise Y’s EHC plan,
• Pay Mr X £300 for the delays in issuing Y’s EHC plan and the distress the delay had cause him, and
• Pay Mr X £100 for not responding to his complaint from December 2020, and
• Pay Mr X £100 for the time and trouble in pursuit of his complaint.
22. The Council has confirmed it has issued the final EHC plan and has met with Mr X to discuss OT provision. Mr X tells me he is satisfied with what the Council has done.

My findings

23. I have discontinued my investigation because the Council has already investigated Mr X’s complaints and provided suitable remedies. It is unlikely an Ombudsman investigation would add anything further.

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Final decision

24. I have discontinued my investigation as it is unlikely that we would achieve any additional outcomes for Mr X.

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Investigator's decision on behalf of the Ombudsman