Summary: Mrs X complains to the Council has failed to make educational provision set out in her son’s Education, Health and Care Plan (EHCP). She says it has also failed to meet statutory deadlines for completion of an annual review. The Council is at fault and has caused injustice. The Council has agreed an apology, a financial remedy and service improvements.

The complaint

1. The complainant, who I refer to here as Mrs X states that in relation to her son, B, the Council has failed to:
1. provide occupational therapy (OT);
2. provide adequate home tutoring;
3. provide social, emotional, mental health (SEMH) support;
4. provide a personal assistant;
5. correctly commission the role of a lead professional, which meant Mrs X had to liaise between the Council and healthcare;
6. meet statutory deadlines for completion of B’s annual review.
2. After considering Mrs X’s complaints at Stage 2 and Stage 3 of its complaints process, the Council did not uphold any of them, but offered her £250 to reflect its inability to investigate some matters. Mrs X says this is inadequate.

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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)

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How I considered this complaint

5. I spoke to Mrs X and considered information provided by Mrs X and the Council. I considered the relevant guidance and legislation. I have shared my draft decision with Mrs X and the Council and considered their comments before I finalised my decision.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Education Health and Care Plans (EHCPs)

7. The EHCP is a document which sets out the education, healthcare and social care needs of a child or young person for whom extra support is needed in school, beyond that which the school can provide. It also sets out the provision the Council will make to meet these needs. Children with an EHCP may be entitled to extra teaching support in school. Outside agencies may also provide support.

Annual Reviews

8. Reviews of a child’s EHCP are governed by a Government guidance known as the Special Educational Needs (SEN) Code of Practice. This states that councils must review EHCPs a minimum of every 12 months (from the date of when the first EHCP was issued or from the date of the last annual review).
9. Within four weeks of a child’s annual review meeting the council must send the child’s parents or carers a letter notifying them of the outcome of the review.
10. Parents may appeal the Council’s decisions on an EHCP to the SEN and Disability Tribunal.

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What happened

11. Mrs X has a son, B, with special educational needs (SEN) and an EHCP. In October 2019, when B was aged nine, the Council issued his final EHCP, followed by an amended version in November. Mrs X made various complaints to the Council about its failure to ensure the provision listed in the EHCP. I take these in turn below:
1. Failure to provide occupational therapy
12. Both versions of the EHCP listed occupational therapy provision. Provision of the therapy did not begin until 30 January 2020, which Mrs X said was unreasonable. She said that B had lost 10 hours of provision and that she would like the therapist to provide this during the holidays. In its response to my enquiries the Council said it had difficulties with recruitment of a therapist and that a notice period was required to be served by the successful applicant. I asked the Council to provide documentary evidence to support its answer but it declined to do so.

Analysis

13. On the evidence seen to date, the Council is at fault as it delayed the provision of occupational therapy for three months meaning B lost 10 hours of provision. This caused an injustice to B. The Council has agreed to reimburse Mrs X for her spend on private provision.
1. Failure to provide adequate home tutoring
14. Mrs X states that a tutor commissioned by the Council between November 2019 and the end of the summer term was inadequately qualified as he had no SEN qualifications or experience and was unable to run “baseline” tests to assess his learning against his peers. She said this meant he was unable to fulfil a requirement in B’s ECHP that the tutor identify gaps in B’s learning and provide materials to enable him to achieve age-expected progress.
15. Responding, the Council said the EHCP did not specify that the tutor must have SEN qualifications. It said the tutor supported B to access the national curriculum and provided support as he was commissioned to do. It disagreed that baseline tests would have been helpful at that stage.
16. I asked the Council for a copy of B’s 2020 annual review. It said it could not locate this as the person responsible for supporting the family had left its employment and may not have saved the document to B’s file. It also said it did not know whether the 2020 annual review had taken place, although elsewhere it has stated that it received the review report. The Council has accepted it is at fault in its record-keeping and has put measures in place to stop this happening again.
17. Mrs X supplied me with a copy of B’s 2020 annual review. B’s tutor stated that he found it hard to know where he was “on the scale of achieving enough vs making good progress” given B’s style of learning and that it was hard to gauge B’s progress against his peers. The review stated the tutor would attend a multi-professionals meeting once per term to track B’s progress.

Analysis

18. The annual review document shows B’s tutor admitted struggling to meet the requirement in the EHCP that he identify gaps in B’s learning and enable him to achieve age-expected progress. This was partly due to B’s style of learning, which was driven by his own preferences. The issue was addressed in the annual review with a plan for the tutor to liaise with other professionals involved in B’s care. I do not therefore find fault with the Council in this matter.
19. The Council is at fault in its failure to keep a record of the annual review. There is no evidence of injustice to Mrs X and B and the Council has explained what it has done to address this.
1. Failure to make social, emotional, mental health (SEMH) provision
20. Mrs X says the SEMH provider listed on the EHCP failed to plan for B’s needs resulting in youth workers engaging him in inappropriate activities such as 6-hour gaming sessions and trips to the shop to buy large quantities of unhealthy snacks despite his diet being monitored due to weight gain. There were also safeguarding incidents between B and youth workers, with B at one point locking a youth worker in a house. Mrs X told me she informed the Council and the provider that the provision was unsuitable. In February 2020 the Council promised to review the provision but nothing was done. Mrs X’s view is that B effectively missed out on provision from November 2019 to the end of the summer term 2020. The 2020 annual review shows the provision was of some benefit to B.
21. I asked the Council what steps it had taken to ensure the provision was suitable. I also asked it to show what it had done to respond to Mrs X’s concerns and whether the promised review had in fact been carried out.
22. The Council told me the staff involved had left its employment. It had no records and felt it inappropriate to contact ex-employees about previous case work.

Analysis

23. Mrs X has provided evidence of her concerns about the provision with the Council and that the Council assured her it would be reviewed. The Council cannot comment as it has no records of the matter. The Council is at fault for failing to keep appropriate records. I find that, based on the evidence provided by Mrs X, the Council is at fault in relation to the provision. While the annual review shows some aspects of the provision benefited B, it is concerning that a child at risk of weight gain was allowed to buy very large quantities of confectionary while under supervision by the provider and was able to lock a youth worker in a house. In my view there has been an injustice to B. The Council has agreed to pay £300 to remedy this.

d) Failure to provide a personal assistant

24. B’s personal assistant (PA), who was paid for by the Council, resigned with short notice in September 2020. Mrs X received a budget for 10 hours per week of PA cover out of school hours. After the PA resigned Mrs X said she no longer wanted to hold the personal budget as she had been unable to recruit an out of hours PA. She asked the Council to arrange a PA to cover both school and out of school hours. The new PA did not start work until mid-October, meaning her son missed 5 weeks’ PA provision. Mrs X had to continue on furlough during this time, meaning she lost wages. She seeks reimbursement of these.
25. In response the Council pointed out that the short-notice resignation was beyond its control and it was not directly responsible for Mrs X’s loss of wages.

Analysis

26. I agree with the Council’s position that the short-notice resignation of the PA was out of its control. Mrs X had herself struggled to recruit a PA and in my view the Council is not at fault for a relatively short delay in finding a replacement.
27. e) Failure to correctly specify the role of the lead professional, which meant Mrs X had to liaise between the Council and healthcare
28. Mrs X said that she had to liaise between the Council and healthcare professionals. She said this was because when the Council hired the lead professional charged with co-ordinating B’s provision it did not specify this task in the person’s job description. When Mrs X asked the practitioner to liaise with a private clinician, she directed Mrs X to the SEN team, pointing out that this related to the health part of B’s ECHP and she was not therefore able to advise.
29. The Council said the lead practitioner was tasked to oversee and co-ordinate EOTAS (Education Other Than At School) provision, which includes all education that takes place outside of the school environment. It said it was not within the lead practitioner’s remit to co-ordinate healthcare professionals funded by Mr and Mrs X who were not part of the EOTAS package. It provided a copy of the tribunal handover record which specified the lead practitioner’s tasks.
30. The practitioner also provided a statement to me, confirming she had held half-termly review meetings and that NHS mental health professionals had been invited to attend by the Council’s SEN team, but had declined as B was still on a waiting list.

Analysis

31. I do not find the Council was at fault in its commissioning of the practitioner. The tribunal record states that the lead practitioner’s role was to oversee and co-ordinate the EOTAS programme and arrange and lead a half-termly review. It was therefore not in her job description to liaise with or advise on a clinician Mrs X had arranged privately. The SEN team did liaise with NHS staff who declined to attend meetings as B was on a waiting list.
1. Failure to meet statutory deadlines for B’s annual review
32. The annual review meeting was held in the first week of February 2020 meaning the legal deadline for notification (4 weeks later) was early March. Mrs X received the notification at the end of March.
33. The Council initially told Mrs X that it received the review report from B’s school in mid-March therefore its notification met the statutory deadline. Mrs X pointed out that the deadline for notification runs from the date of the meeting and that the Council had therefore missed the deadline.
34. Mrs X believes that the notification letter was delayed deliberately as the Council was hoping that Covid-related legislation would remove its obligations with regards to EHCPs. She therefore paid for solicitors to write a pre-action letter in order to ensure the review process was concluded. She seeks reimbursement of her legal costs.
35. In response to my enquiries the Council accepted it was at fault and said it would apologise to Mrs X. It said its staff had received additional training on their statutory duties. It acknowledged wider problems with its annual reviews and said that in February 2021 it put in place an annual review recovery plan, detailing steps to ensure reviews are processed within statutory timeframes.

Analysis

36. The Council has accepted fault and has agreed to apologise to Mrs X. In my view there is limited injustice arising from the fault and an apology is an appropriate remedy. We do not usually award legal fees unless there is evidence of significant council disengagement which is not the case here.
1. Complaints handling
37. Mrs X did not specifically complain about the Council’s complaint handling. I asked the Council to review and comment on its Stage 3 response to Mrs X’s complaints. The Council told me its view was that the Stage 3 response was of an appropriate standard.
38. In my view the Stage 3 response was of a poor standard. The Council advised Mrs X that it is unable to investigate verbal allegations, by which it means complaints about verbal remarks. This is poor practice. There is no reason why verbal comments by staff should not be investigated. The Stage 3 response also incorrectly advised Mrs X that the annual review had been concluded within legal deadlines. The Council did not detect this error despite the fact its staff have been provided with training on the statutory annual review procedures.
39. Mrs X’s detailed complaint about the Council’s failure to provide a personal assistant was not appropriately reviewed. The Stage 3 response to this point states:
40. “I understand that you have a personal budget for the 10 hours a week and signed an agreement relating to the budget. That you subsequently asked the Local Authority to fun (sic) directly following the agreement

I do not uphold”

This is a very poor standard of response.

41. In response to my draft decision, the Council accepted the Stage 3 response was not up to standard. It said it had reviewed more recent complaint responses and believes Mrs X’s case is an outlier but has agreed to provide additional training to its staff on effective complaints handling.
42. The Council has agreed to pay £300 to compensate Mrs X for her time and trouble in bringing the complaint and any distress caused.
43. The Council has agreed to pay Mrs X a total £600. It has already agreed to pay her £250. If this has been paid already, it will pay a further £350.
44. I also recommended the Council holds further training on procedures around annual reviews. It said the SEN service is currently providing refresher training for staff at all levels, and that this due for completion in late autumn. I recommend that the complaints handlers be included in this training.

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Agreed action

45. The Council has agreed that within one month of my final decision it will:
1. Reimburse Mrs X for 10 sessions of private OT provision;
2. Pay Mrs X a total of £600 to compensate for her time and trouble in bringing the complaint and for the inadequacies in the SEMH provision (if the original £250 remedy has already been paid a further £350 is now owing);
3. Apologise to Mrs X;

And that within three months of my final decision, it will:

4. Arrange training for its staff in effective complaint handling and include complaints handlers in ongoing training on annual reviews.

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Final decision

46. I have completed my investigation with a finding of fault by the Council, which caused injustice and for which it has agreed to make an apology, further financial remedies and service improvements.

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Investigator's decision on behalf of the Ombudsman