Summary: Mrs X complained the Council consistently delayed producing a final Education, Health and Care Plan for her child Y. She said when the Council eventually produced a Plan, it failed to include her views and did not refer Y to a speech and language therapist as it should have done. Mrs X said this caused her stress and negatively impacted Y’s development. There was fault when the Council significantly delayed issuing Y’s Education, Health and Care Plan for almost two years and did not make a speech and language therapy referral for Y. This caused frustration and financial loss to Mrs X. The Council has agreed to provide Mrs X with an apology and a £700 financial award. The Council will also send a reminder to its staff about the importance of keeping to statutory timescales.

The complaint

1. Mrs X complained the Council delayed producing a final Education, Health and Care Plan (EHC) for her child Y. She said when the Council eventually produced the Plan, it did not include her views or refer Y to a speech and language therapist as it should have done.
2. Mrs X said this caused her stress and negatively impacted on Y’s development.

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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)
5. 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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How I considered this complaint

6. I made enquiries of the Council and considered the information it provided, this included Mrs X’s complaint form, Y’s EHC Plans, the Council’s chronology of the complaint and the correspondence shared between Mrs X and the Council.
7. I wrote to Mrs X and the Council with my draft decision. I considered their comments before I make the final decision.

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What I found

Special educational needs

8. A child with special educational needs (SEND) 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. Only the tribunal can do this.
9. Councils must review EHC Plans at least yearly. They should decide whether to maintain, amend or discontinue the plan within four weeks of an annual review. If the Council decides an amendment is necessary, it must issue a final amended plan within eight weeks of the decision.
10. The Special Educational Needs and Disability Code (the SEND Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay,” so there are no set timescales here but we would consider whether actions were ‘without delay.’
11. The council must give the parent or young person at least 15 calendar days to comment on the proposed changes.
12. 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 eight weeks of the date it sent the EHC Plan and proposed amendments to the parents.
13. If the council decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit. Councils must ensure a child’s parent or the young person is fully included in the assessment from the start and made aware of opportunities to offer views and information.
14. If the Council is ordered by SEND tribunal to re-assess the EHC Plan, it should write to the relevant parties within 2 weeks to confirm it will make the assessment and send the amended plan within 5 weeks of tribunal making the order.

Mrs X’s complaint

15. Y is secondary school aged and has been diagnosed with learning delay and ADHD.
16. The Council issued Y’s EHC Plan on 17 January 2019. The Plan outlined the provision Y required, which included:
• visual support in the classroom;
• attendance at a weekly social skill class;
• 1:1 maths sessions; and
• hand strengthening activities provided by occupational therapy
17. On 23 May 2019 the Council held an annual review of Y’s EHC Plan. Mrs X and staff from Y’s school were present. During the review Mrs X told the Council she believed Y would benefit from an educational psychologist (EP) assessment and speech and language therapy (SALT).
18. The Council continued to communicate with Mrs X regarding Y’s Plan but did not issue the Plan or confirm whether it was going to amend it.
19. On 19 May 2020, the Council held a further annual review meeting. Mrs X and the Council discussed the contents of the EHC Plan and Mrs X said she was unhappy with the delay. Y’s declining progress in maths and science was also noted at the review.
20. On 18 December 2020, Mrs X complained to the Council. She was unhappy the Council had still not finalised Y’s EHC Plan or confirmed whether it was amending the Plan despite holding two consecutive annual review meetings and issuing a draft Plan. She said the Council’s delay was preventing her from using her right of appeal and causing an injustice to Y.
21. The Council sent its Stage 1 response on 11 January 2021. The Council agreed it had failed to issue its decision to amend or finalise Y’s Plan within 4 weeks of either the 2019 or 2020 annual review. The Council explained it had experienced a significant increase in workload and this had caused the delay in finalising Y’s Plan. The Council confirmed it had contacted an EP and was liaising with Y’s school to arrange a SALT assessment.
22. Mrs X was not satisfied with the Council’s response and was unhappy she had still not received a finalised Plan, so she escalated the complaint to Stage 2.
23. The Council finalised Y’s EHC Plan on 22 February 2021. The Plan said Y should receive amongst other things:
• support with her language skills
• 1:1 support with literacy and strengthening social skills
• a cognitive assessment with an educational psychologist
• extra time to organise herself in between lessons.
24. The Plan also included Mrs X’s comments on Y’s development and her views on the progress Y should be making.
25. The Council then issued its Stage 2 response on 24 February 2021. The Council upheld Mrs X’s complaint regarding the delay in issuing Y’s Plan. The Council said it had issued an amended EHC Plan in December 2020 and a further amended Plan in January 2021. The Council said Mrs X’s request for a SALT referral had contributed to the delay in finalising Y’s Plan but acknowledged that low staffing and increased demand had also caused the delay.
26. The Council acknowledged the 2020 annual review showed Y’s progress at school had decreased but said Y’s school was providing increased support to meet Y’s needs and so it did not consider that Y had experienced an injustice due to the delay.
27. Mrs X brought her complaint to the Ombudsman because she was still unhappy with the Council’s delay and failure to include a SALT referral in Y’s Plan. She said she had to pay for a private SALT assessment and private tuition due to the Council’s actions. She also felt her views were not adequately included in the Plan.
28. In response to the Ombudsman’s enquiries, the Council conceded it did not contact its SALT department following the Stage 2 investigation but made the referral soon after receiving the Ombudsman’s complaint. The Council also explained the delay in producing the Plan was caused by low staffing and increased demand. The Council said it ensured Y received the provision she was entitled to during the interim between the annual review and issuing the final Plan by contacting Y’s school and confirming it was increasing Y’s support to aid her in her development.

Findings

29. Mrs X complained the Council delayed producing Y’s EHC Plan following the 2019 annual review. The law requires the Council to issue an EHC Plan within 4 weeks of an annual review. The Council did not issue Y’s EHC Plan for 20 months. This is a significant delay and is fault. The Council’s failure to issue the Plan is likely to have caused Mrs X frustration and stress.
30. Mrs X complains the Council’s delay has negatively impacted Y’s development.
    I can see the Council has acknowledged Y’s progress at school has declined. I cannot see a significant difference in the provision outlined in Y’s 2019 and 2021 EHC Plans. Therefore, I cannot know whether Y’s decline is due to the Council’s delay or what progress Y would have made if the Council had delivered the amended Plan within statutory guidelines. The evidence shows Mrs X remains unhappy with the contents of Y’s Plan and is still contesting this with the Council but has not triggered her right to appeal. I therefore consider it likely Mrs X would not have been satisfied with the EHC Plan if the Council delivered it earlier.
31. Mrs X complained the Council failed to include her views or wishes for a SALT referral in Y’s 2021 EHC Plan. I can see the Council has included Mrs X’s comments in the Plan but it failed to refer Y for a SALT assessment despite telling Mrs X it would do so. This is fault. Mrs X has sourced private tuition and therapy for Y due to the Council’s actions. This has likely caused Mrs X further frustration and contributed to the breakdown in trust between Mrs X and the Council.
    I cannot know whether this fault has caused an injustice to Y. It is open to Mrs X to appeal the contents of the Plan at Tribunal if she remains unhappy with this part of the complaint.

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Agreed action

32. Within one month of the date of the final decision the Council has agreed to issue Mrs X with an apology for the avoidable time and trouble she has experienced due to this complaint.
33. Within one month of the date of the final decision, the Council has agreed to make a £700 payment to Mrs X to remedy the injustice she experienced due to its actions.
34. Within three months of the date of the final decision, the Council has agreed to provide evidence showing it has formally reminded its staff of the importance of keeping to statutory timescales when issuing amended or final EHC Plans.

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Final decision

35. There was fault when the Council significantly delayed producing a final EHC Plan for Y. This led to frustration and financial loss for Mrs X. I have made recommendations for how the Council should address the injustice she experienced and the Council has agreed to them. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman