Summary: Mr X complained the Council delayed finalising his child’s Education, Health and Care Plan. He said it failed to properly handle his family’s data according to the General Data Protection Regulation. Mr X also complained about the Council’s delay in dealing with his complaint. The Council was at fault for the delays in the Education, Health and Care Plan completion and dealing with Mr X’s complaint. This has caused Mr X’s family significant distress, time and trouble and the child was disadvantaged by not having an up-to-date Plan for more than two years. The Council will take action to remedy the injustice caused to the child and Mr X’s family.

The complaint

1. Mr X complained about the Council’s:

• delay in reviewing and finalising his child’s Education Health and Care Plan
• failure to properly handle and process his family’s data according to General Data Protection Regulation
• delay in dealing with his complaint.

2. Mr X says due to the Council’s failings, his child was denied access to provisions to meet his needs. Mr X also says the matter has caused his family significant distress, frustration, time and trouble and financial loss.

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What I have investigated

3. I have investigated whether the Council met its statutory responsibilities in issuing the final Education Health and Care (EHC) Plan. I have also investigated whether the Council followed its complaints procedure.
4. I have not investigated Mr X’s allegation of the Council’s breach of the General Data Protection Regulation and dispute over the content of the EHC Plan. These matters are better placed with the Information Commissioner’s Office (ICO) and Special Educational Needs and Disability (SEND) Tribunal respectively.

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The Ombudsman’s role and powers

5. 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)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. 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)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
10. 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)
11. 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

12. I discussed the complaint with Mr X and considered the information he provided. I considered the information the Council provided in response to my enquiries.
13. I have exercised discretion to investigate matters from 2018. This is because I needed to consider the whole period to carry out a meaningful investigation.
14. I sent Mr X and the Council a copy of my draft decision and considered the comments received before reaching a final decision.

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What I found

15. 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 is set out in sections. The Ombudsman cannot investigate or make changes to the sections about special educational provision. Only the SEND Tribunal can do this.

Annual Reviews

16. Councils should ensure an annual review of the child’s EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain, amend or cease to maintain the EHC Plan.
17. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
18. Where a council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
19. The council must give the parent or young person at least 15 calendar days to comment on the proposed changes. (s22 (2) (c) SEND Regulations 2014)
20. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within 8 weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
21. Councils are not obliged to provide exactly what each parent requests, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of any individual child.
22. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal.
23. Parents do not have a right of appeal until a final EHC Plan (or decision not to issue a Plan) is made and a decision letter issued by the Council.

What happened

24. This chronology includes key events in this case and does not cover everything that happened.
25. Mr X’s child, who I will refer to as Y, has special needs due to some health conditions. Y attends a special needs school and he has an EHC Plan.
26. In May 2018, following Y’s EHC Plan annual review, the Council agreed Y’s Plan would be updated.
27. During the annual review meeting Mr X and his wife explained they would like Y to have an “Applied Behaviour Analysis” (ABA) provision made available to him at his school. They explained the ABA approach used maps progress and set targets. Mr X explained when they had previously used the provision with Y at home, it helped Y with his behaviour and communication needs. Y’s school explained it did not use the ABA provision but it was similar to its Learning Journey assessment provision. The school suggested Mr X and his wife could withdraw Y from school to do the ABA home tuition for part of his school week.
28. In December 2018, Mr X raised his concerns about the Council’s delay in amending Y’s EHC Plan. The Council apologised for its delay and confirmed it would amend Y’s EHC Plan by January 2019. This was because the Council was in the process of gathering reports from the various professionals who worked with Y.
29. In January 2019, the Council sent Y’s amended draft EHC Plan to Mr X. The Council invited Mr X to make comments on the Plan. Mr X sent his comments to the Council. The Council held a meeting with Mr X and his wife to discuss Y’s draft amended EHC Plan.
30. Mr X raised his concerns about the Council’s delay in issuing Y’s final EHC Plan with his MP who wrote to the Council on his behalf.
31. On 21 February 2019, the Council responded to Mr X’s MP. The Council explained it was in the process of amending Y’s EHC Plan following the meeting it held with his parents in January 2019. The Council confirmed it would issue Y’s EHC Plan by the end of February 2019.
32. On 27 February 2019, the Council issued Mr X with Y’s new amended draft EHC Plan. The Council explained the new amended Plan reflected information it gathered during Y’s EHC Plan annual review meeting, Mr X’s views and reports from professionals involved with Y. Mr X made his comments on the new draft Plan. He said he noticed the Council had removed his comments about the ABA provisions from the draft following their meeting in January 2019.
33. In March 2019, the Council informed Mr X a new member of staff would be taking over the completion of Y’s EHC Plan.
34. In September and October 2019, Mr X emailed the Council. He said Y was not receiving the provision he needed due to the Council’s delay in issuing Y’s final EHC Plan. In particular, the Speech and Language Therapy (SALT) as contained in Y’s Plan. Mr X asked for a meeting with the Council to be arranged. He also formally requested eight hours of ABA provision to be included in Y’s EHC Plan.
35. In mid-October 2019, the Council sent Mr X another revised draft EHC Plan. The Council acknowledged Y’s learning, behaviours and health would have changed since the last annual review meeting it held with Mr X in May 2018. It invited Mr X to make comments on the new revised draft Plan.
36. The Council said it could not find on its record the assessment report carried out by the ABA therapist. The Council said it had sought and was awaiting quotes from the ABA provider and the view of Y’s school on the provision. The Council included the ABA information Mr X provided in a separate document in appendix to section A of Y’s EHC Plan. It explained changes to section B of Y’s EHC Plan would have to be made by professionals involved with Y. The Council said if Mr X had any additional reports, it would be happy to make amends based on the reports.
37. Mr X disagreed with Y’s new revised draft EHC Plan.
38. At the end of October 2019, Mr X made a formal complaint to the Council. He complained about the Council’s delay in finalising Y’s EHC Plan. He said he disagreed with the content of the draft Plan which the Council issued in October 2019. Mr X said the reports provided by the Y’s school and the various professionals were contradictory. He also complained Y’s draft Plan did not include his SALT, a local offer the Council previously agreed to, direct payments for Mr X’s respite provision and his request for the direct payment increment.
39. Mr X asked the Council to add his comments and the ABA provision to Y’s final EHC Plan. He also asked the Council to set out clear targets for outcomes and how these would be measured in Y’s final Plan. Mr X asked to meet with the Council to agree the contents of Y’s Plan before it issued the final version.
40. In December 2019 and January 2020, Mr X chased the Council for its response to his complaint and an update on Y’s EHC Plan.
41. In February 2020, the Council issued its stage 1 response to Mr X’s complaint. The Council apologised to Mr X for its delay in responding to his complaint and in finalising Y’s EHC Plan. It said it could not explain the reasons for the delays with Y’s Plan amendments since May 2018. The Council explained the staff who worked on Y’s case had left the Council. It confirmed the initial draft Plan was issued to Mr X in February 2019 and it addressed the issues he raised. The Council disagreed with Mr X’s allegation that the professionals’ reports were contradictory. The Council said to avoid further delays, it would issue Y’s final EHC Plan with Mr X’s current amendments. It said this would give Mr X his right of appeal against any of the contents within the Plan.
42. In March 2020, Mr X asked for his complaint to be escalated to stage 2. Mr X said the Council failed to fully address his complaints and it did not explain what happened to Y’s revised EHC Plan when the initial staff working on the case left the Council. Mr X alleged the Council lost Y’s initial revised Plan in February 2019.
43. Due to the Council’s delays in issuing Y’s final EHC Plan, Mr X arranged the ABA provision for Y from September 2020 onwards. Mr X said this was because Y was missing out on provisions he required to meet his needs. Mr X was paying privately for the ABA provision.
44. On 22 December 2020, the Council issued its stage 2 response to Mr X’s complaint. It apologised for the significant delays in responding to his complaint and the delay in finalising Y’s EHC Plan. The Council disputed it lost Y’s initial draft Plan in February 2019 but it could not explain why the final EHC Plan was not issued at the time. It explained the delays were partly due to its resource issues.
45. The Council fully upheld Mr X’s complaint. The Council agreed to arrange a review meeting of Y’s EHC Plan in early 2021 with a view of issuing the final Plan. It offered Mr X £200 for the distress caused to him and a further £200 for the time and trouble it put him to pursuing the matter.
46. Mr X remained dissatisfied with the Council’s response. He said although the Council accepted the service it provided to him and his family was unacceptable, it failed to explain the reasons for the delays. Mr X refused the offer of another review meeting which would lead to further delays and he asked the Council to issue Y’s final EHC Plan. Mr X said the Council denied him his right of appeal and it denied Y access to provisions he required to meet his needs. He said he would pursue the data protection matter with the ICO. Mr X also rejected the Council’s financial payment offers.
47. Mr X made a complaint to the Ombudsman.
48. On 23 December 2020, the Council issued Y’s final EHC Plan.
49. Mr X disagreed with the final EHC Plan. The Council scheduled Y’s EHC Plan annual review meeting for March 2021.
50. In response to our enquiries, the Council has increased its financial remedy to Mr X. It now offers Mr X and his family £250 for its delay in the complaints process and for their time and trouble chasing the Council. The Council also increased its offer for the distress caused to Mr X and family to £500.

Analysis

Delay in finalising Y’s EHC Plan

51. After a council receives comments and decides to continue to amend an EHC Plan, it must issue the amended Plan as soon as practicable and within 8 weeks. In this case it took the Council 29 months to conclude the process of issuing Y his final EHC Plan. This was a very significant delay and it was fault. The delay caused Mr X’s family significant distress and put them to the time and trouble of chasing the Council.
52. The evidence shows Mr X disagreed with the contents of Y’s EHC Plan and he made comments on the three occasions the Council issued the amended draft Plans. Although councils are not obliged to provide exactly what each parent requests, they should be able to clearly explain why they consider a suggested provision meets the assessed needs of any individual child. From the evidence seen, the Council failed to provide Mr X with an explanation as to why some of his comments were not added to Y’s Plan or why the Council made specific changes to the draft amended Plans. I find fault by the Council. This caused Mr X avoidable time and trouble chasing the Council for clarification about its lack of communication with him on this matter.
53. Also, the Council should have decided whether to accept Mr X’s comments and then issued the final EHC Plan. This would have given Mr X the right of appeal to the SEND Tribunal earlier than December 2020. Mr X could have used his appeal right if he wished, to object to the contents he disagreed with as contained in Y’s EHC Plan such as the ABA provision. This is fault.
54. In line with statutory guidance, councils should ensure an annual review of a child’s EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. I find the Council lost sight of discharging its statutory duty in this case. The evidence shows the Council failed to conduct Y’s EHC Plan annual review meetings in May 2019 and May 2020. This was fault.
55. The purpose of conducting annual reviews is to consider whether the special educational support and educational placement is still appropriate. The evidence shows the Council amended Y’s EHC Plan three times during this period. Therefore, the Council did not have an up-to-date knowledge of Y’s needs given it had not reviewed or issued the final Plan for over two years. It is difficult to quantify what Y has missed out on, due to the delay in finalising his Plan. This is because Y attends a special needs school and continued to receive the provision set out in his original Plan throughout.
56. The Council accepted it delayed re-assessing and finalising Y’s EHC Plan. It apologised to Mr X. The Council confirmed it has implemented a tracking process for monitoring EHC Plan revisions. This is to ensure they are being managed in a timely manner.

Delay in dealing with Mr X’s complaint

57. According to the Council’s complaints procedure, complainants should receive a written response to complaints made within 15 working days at stage 1 and within 20 working days at stage 2.
58. Mr X made a formal complaint to the Council in October 2019 and the Council sent its stage 1 response in February 2020. This was approximately a three‑month delay.
59. Similarly, I find there was approximately an eight-month delay between the date Mr X escalated his complaint to stage 2 in March 2020 and when the Council issued its stage 2 response in December 2020. This was fault. Mr X was put to time and trouble pursuing outcomes to his complaints.
60. The Council has increased its initial financial remedy to Mr X. It now offers Mr X and his family £250 for its delay in the complaints process and for their time and trouble chasing the Council. The Council has also increased its offer for the distress caused to Mr X and his family to £500. These are acceptable and proportionate remedies and in accordance with our guidance on remedies.

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Agreed action

61. To remedy the injustice caused by the faults identified the Council has agreed within one month of the final decision:

• apologise again in writing to Mr X and Y for the delays in finalising Y’s EHC Plan.
• pay Mr X £500 it now offers for the delay in finalising Y’s EHC Plan. This is to acknowledge the distress this caused to Mr X’s family and the delay in giving Mr X the right of appeal to the SEND Tribunal.
• pay Mr X £250 it now offers in recognition for the avoidable time and trouble caused to him by the delay in dealing with his complaint.
• by training or other means remind staff of the importance of meeting the Council’s complaint procedure timescales.

62. To confirm the tracking process the Council has implemented to monitor EHC Plans revisions are managed in a timely manner in line with statutory timeframe, within two months of the final decision:

• undertake an audit of 5% of EHC Plan reviews completed in the last 12 months as part of the monitoring process. This is to ensure the Council is carrying out annual reviews, issuing decision notices and finalising amended EHC Plans in accordance with statutory guidelines.
• report the EHC Plan review audit findings with the Ombudsman.
• undertake additional audits of 20 EHC Plan annual reviews over a further 3‑month period. Within one month of completing the additional audits, provide the Ombudsman with the updated report of the audit findings.

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Final decision

63. I find evidence of fault by the Council leading to injustice. The Council has agreed to take action to remedy the injustice.

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Parts of the complaint that I did not investigate

64. I have not investigated Mr X’s allegation of the Council’s breach of the General Data Protection Regulation and the content of the EHC Plan. These matters are better placed with the ICO and SEND Tribunal respectively.

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Investigator's decision on behalf of the Ombudsman