Summary: Miss X complained the Council failed to regularly review her son, Y’s, Education, Health and Care Plan (EHCP), resulting in loss of support. We find the Council failed to ensure Y’s EHCP was reviewed when it should have been. We recommend the Council apologise, make payment for time, trouble, and uncertainty, and remedy any similar fault affecting others.

The complaint

1. Miss X complains the Council failed to ensure Y’s EHCP was reviewed between 2016 and 2019. As a result, Miss X believes gaps in her son’s education were not identified when they should have been. Miss X also complains about the Council’s decision not to provide a personal budget or extra tuition when she requested it in 2019.

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What I have investigated

2. I have investigated the complaint about annual reviews.
3. I have not investigated the Council’s decision on a personal budget or extra tuition. I have explained why at the end of this decision.

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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’. 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)
5. 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)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
8. 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.
9. 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

10. I spoke to Miss X about her complaint and considered the information she provided. I also considered the information the Council provided.
11. I have considered the SEN and Disability Code of Practice 2015 and the Children and Families Act 2014.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education, Health and Care Plans

13. The Children and Families Act 2014 sets out support for children with special educational needs and disabilities (SEND). The ‘Special educational needs and disability code of practice’ (the Code) gives more details about how councils, schools and others should carry out their duties.
14. A child with special educational needs may have an EHCP. This sets out the child’s needs and how they should be met. The EHCP is set out in sections. We cannot direct changes to the sections about education or the setting named. Only the SEND tribunal can do this.
15. Councils must ensure EHCP provision is met. We can look at complaints about this. We can investigate where a council has not ensured provision, or where there have been delays in the process.
16. The Code says councils must review EHCPs at least yearly. The review should focus on a child’s progress towards achieving the plan outcomes and consider whether the outcomes and supporting targets remain appropriate. Councils can consider holding an early review if there is a change in the child’s circumstances.
17. The Code says EHCP reviews are generally most effective when led by a child’s school as they will know the child best and have most contact with their family. It explains councils should provide a list of children and young people who will need a review of their EHCP that term to the heads of their schools.
18. The child’s parents, a representative of the school, a representative of the Council, a health service representative, and a social care representative should all be invited and given two weeks’ notice.
19. Within two weeks of the meeting, the school must prepare and send a report to everyone who was invited to the meeting. The report must set out recommendations on any amendments to the EHCP.
20. The council has four weeks from the review meeting to decide whether to maintain or amend the EHCP. It must present proposed changes to parents with an opportunity to comment and begin any amendments without delay.
21. Councils should also tell parents they have a right to appeal the final EHCP to the SEND Tribunal.

Personal budgets and direct payments

22. A special educational needs personal budget is an amount of money identified by the local authority to deliver provision set out in an EHCP. The Council can identify elements of the provision which can be made via a direct payment.

The SEND Tribunal

23. Parents and carers who are unhappy with the content of their child’s EHCP, or about a placement named, may appeal to the SEND Tribunal. The law generally prevents us investigating complaints when the SEND Tribunal can deal with the issues raised.
24. The Ombudsman’s SEND factsheet advises “the law generally prevents us from investigating complaints for which a remedy is available through an appeal to a statutory tribunal.” However, we have discretion if it would not be reasonable to expect the complainant to appeal to the tribunal.

The Council’s complaint process

25. The Council uses a two stage complaints process.
26. The Council’s published process explains it will log formal complaints and acknowledge them within three working days of receipt. It explains it will review complaints on an individual basis and respond to them at stage one within 15 working days. If a complaint is complex or serious, it may need to extend this timeframe.
27. If a complainant disagrees with the Council’s stage one response, they can ask it to consider their complaint at stage two. At this stage, the Council will appoint a senior officer to take another look. The policy says the Council will aim to issue a stage two response within 20 working days.
28. If a complainant disagrees with the Council’s stage two response, they can refer their complaint to the Ombudsman.

Principles of Good Administrative Practice

29. In 2018, the Ombudsman published a document setting out principles of good administrative practice and what we expect to see from councils when dealing with complaints.
30. This document recommends councils explain and respond to any delays proactively. It also recommends councils deal with people helpfully, promptly, and sensitively, taking account of their personal circumstances.

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What happened

31. Y was identified to have special educational needs and was given an EHCP by a different council in 2015.
32. Y moved into the Council’s area in February 2016. The Council reviewed Y’s EHCP in June 2016, but it did not issue a new final EHCP.
33. Y attended Miss X’s preferred local school which had been identified as able to meet the provision set out in his EHCP.
34. As time went on, Miss X says she had concerns about the school and its ability to give Y the help he needed. Miss X says she raised these concerns with the school but it told her Y was getting the provision the Council had agreed to fund.
35. The Council sent Y’s school a list of children who had EHCPs in need of review for the academic years 2016/17 and 2017/18, which included Y. The Council says the school assured them it had carried out internal reviews to ensure it was meeting the children’s needs. However, the Council cannot provide evidence of these or that it carried out its duty to decide whether to amend or maintain Y’s EHCP and provide his parents with appeal rights.
36. Y’s EHCP was next reviewed in February 2019 and October 2019. During the reviews, Miss X explained she believed the EHCP ought to include an additional personal budget to be used towards Y’s education. Miss X said she felt Y had fallen behind due to the reviews not taking place and believed this would help him catch up.
37. During emails, the Council told Miss X that Y was receiving the provision in his EHCP so there was no call for an additional personal budget. The Council explained if Miss X had any concerns over the previous years, she ought to have raised these at meetings with the school.
38. The Council issued a final copy of Y’s EHCP on 30 January 2020. This did not contain any additional personal budget.
39. Y left his school in June 2020 to move onto post-16 education.
40. Miss X complained to the Council in December 2020. She explained that before February 2019, the last time Y’s EHCP was reviewed was in 2015 at a different borough. Miss X explained the Council had failed in its duties which meant Y fell behind in his education.
41. Miss X also raised a second complaint, about a separate issue. The Council agreed to merge the issues to treat them as one complaint in January 2021. However, the Council did not issue a response to Miss X’s complaint.
42. Miss X contacted the Ombudsman in June 2021. We contacted the Council to find out if this matter had exhausted its complaints procedure.
43. The Council wrote to Miss X on 25 June to give its final view of her complaints.
44. The Council explained Y had held an EHCP since he was young, so Miss X ought to have been aware of the process and chased up any missed reviews. It said Miss X had chosen Y’s school and EHCP reviews took place internally, but the Council had not seen them. The Council also explained Y’s EHCP did not include a personal budget as it was not identified as a necessary to deliver his provision.
45. This letter also gave the Council’s view on the second complaint Miss X had raised about a separate issue.
46. Miss X emailed the Council again on 28 July. She explained Y received his first EHCP in 2015 and she did not believe the school undertook any internal reviews. Miss X said she felt the Council was blaming her for not chasing reviews but explained she was unfamiliar with the process, and it was the Council’s responsibility anyway. Miss X reiterated her belief that the lack of reviews had put Y at a disadvantage.
47. We contacted the Council to request the information we needed to investigate this complaint on 25 November.
48. The Council wrote to us on 20 December. It said, on review of the complaint process, it decided it had fallen below the standard Miss X would reasonably have expected. It agreed communication was not at a good enough standard, it did not keep Miss X properly informed of the process and there were several delays which Miss X had to chase. The Council apologised to Miss X for this and agreed to pay her £300 to recognise the time and trouble she had incurred chasing both her complaints.
49. On 21 January 2022, the Council wrote to Miss X again. It explained it was clear any reviews for Y had not followed the statutory process and it had not met its responsibilities. The Council explained it had improved its monitoring process to ensure this did not happen again in the future.
50. The Council compared review documents from 2016 and 2019 and said it did not feel there was enough evidence to say Y’s education had suffered. However, it agreed the lack of reviews would have caused uncertainty and frustration and agreed to pay Miss X £300 in recognition of this. It also offered Miss X £300 to recognise the time and trouble she had had to spend pursuing the situation.
51. Miss X wrote to us on 1 February explaining she did not feel the Council’s recent letter did enough to recognise the injustice to Y.
52. Miss X said she regularly asked the school for extra help for Y, but it refused, telling her the Council would not provide extra funding. Miss X said the school had told her it would look into extra help, but this never happened, and Y was not allowed to attend lessons with a specialist teacher as other students were.
53. Miss X said she had several issues with the school and it had to take many subjects off its curriculum due to funding issues. Miss X said she was never told she could appeal the decision not to grant a personal budget. She also said she would have appealed a lot sooner if she had been given any official EHCP documents while Y was at the school. Miss X said Y was far behind where he should have been because of this and believes the Council is responsible for helping him catch up.
54. The Council responded to a draft of this decision to accept the recommendations made.

Analysis

55. We cannot investigate complaints that have been brought to us more than 12 months after the complainant ought to have been aware of reason to complain. We are only able to exercise discretion if there are good reasons for not complaining sooner.
56. Miss X has complained about the Council’s decision to decline her request for a personal budget in 2019. This was more than 12 months before Miss X contacted us in June 2021. I have not investigated this element of Miss X’s complaint as it has been raised with us late and I have seen no reason why Miss X could not have brought it to us sooner.
57. In any case, a personal budget would be used towards the provision already set out in the EHCP, not as an addition to it. The Council appears to have ensured the provision set out in the EHCP of January 2020 is available to Y so I cannot say there is a continuing injustice due to it not including a personal budget.
58. Miss X has also complained about the lack of reviews between 2016 and 2019. Although these events also took place more than 12 months ago, I think there are good reasons to exercise discretion to investigate. This is because there is potentially a continuing injustice to Y, and we need to see what the Council has done to address this.
59. The Council had a duty to ensure it reviewed Y’s EHCP at least yearly so it could decide whether to amend or maintain this, and provide Miss X with the relevant information, including appeal rights. The Council did not issue an EHCP after the 2016 review, it did not carry out annual reviews in 2017 and 2018, and it did not issue an EHCP after the February 2019 review. The Council repeatedly failed to follow the statutory process in reviewing Y’s EHCP. This is fault.
60. I cannot second-guess what the result of the reviews would have been had they taken place. I also cannot say what provision should have been included in the 2020 EHCP as Miss X could appeal to the SEND Tribunal if she disagrees with it. However, I can compare Y’s 2015 EHCP with his 2020 EHCP to see if there are any discrepancies and if, on balance, it is likely these would have been identified sooner.
61. I have compared Y’s EHCPs from 2015 and 2020 but the provision set out in these seems to be largely the same. The EHCPs are set out slightly differently but the nature of the provision is mirrored so I would not be able to say, on balance, that Y has missed provision he otherwise would have had.
62. There are a few differences between the EHCPs but these come down to getting Y ready for his exams. These differences would always have appeared in the later EHCP so I could not say the Council’s failure to organise reviews properly has caused an injustice to Y here.
63. However, it would have caused considerable distress to find out Y’s EHCP had missed four years of reviews. Miss X had to then chase the reviews and final EHCP after the Council became aware of the issue which would have caused further distress and uncertainty.
64. Not finalising the EHCPs also meant the Council did not give Miss X her right to appeal to the SEND Tribunal. This has caused her significant uncertainty.
65. The evidence the Council has provided shows there were a number of students at Y’s school who needed EHCP reviews at the same time as him. The Council has said it did not receive any formal complaints from other service users about missed EHCP reviews in the time when it did not ensure Y’s reviews took place.
66. However, a lack of other complaints is not enough to conclude the other students received EHCP reviews when they should have done. As the Council has accepted it failed to keep oversight of Y’s EHCP reviews, I have concerns about whether it met its duties in relation to the other students at the school.
67. The Council was at fault in the way it handled Miss X’s complaint. It had the complaint for a month without issuing a response, despite its policy stating it would issue stage one responses within 15 working days. The Council then agreed to merge it with Miss X’s second complaint but took a further five months before issuing a final response, after Miss X contacted the Ombudsman.
68. While I appreciate this complaint is complex, it should not have taken the Council six months to come to a decision on it. Miss X was put to avoidable time and trouble in the complaints process and the delay would have caused further uncertainty. The Council has offered Miss X £300 for the failings in dealing with both complaints, but I do not think that is enough to remedy the injustice she has been caused.
69. I am aware the £300 the Council offered to Miss X for the time and trouble caused by its complaint handling, and the £300 it offered due to the uncertainty caused has now been paid.

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Agreed action

70. To remedy the injustice set out above, we recommended the Council:
71. Within one month:
• Send a further written apology to Miss X for failing to carry out its duties in relation to Y’s EHCP reviews and for failing to communicate properly during the complaints process.
• Pay Miss X £300 to recognise time and trouble caused to her by the failings in dealing with this complaint. The Council can deduct any payment already made to Miss X in respect of faults with its complaint handling from this figure.
• Pay Miss X £600 for the distress and uncertainty caused by failing to review Y’s EHCP as it should have been between 2016 and 2019, and the delays in issuing the subsequent EHCP. The Council can deduct any payment already made to Miss X in respect of uncertainty caused by failing to review Y’s EHCP from this figure.
• Provide the Ombudsman with evidence of the new procedures that have been put in place to ensure proper oversight of the EHCP review process.
72. Within three months:
• The Council should check whether the correct EHCP annual review process was followed over the last 12 months for other children at the school in question. If the Council finds any failings, it should take action to remedy this. The Council should also update the Ombudsman on the findings of its review.
73. The Council has agreed to the recommendations set out above.

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Final decision

74. I find the Council at fault for not ensuring Y’s EHCP was reviewed between 2016 and 2019. To remedy the injustice caused by this, I make the recommendations set out above.

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Parts of the complaint that I did not investigate

75. I did not investigate Miss X’s complaint that the Council refused a personal budget or extra tuition in 2019. This aspect of Miss X’s complaint has been raised late and I have seen no good reason why it could not have been brought to us sooner.

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Investigator's decision on behalf of the Ombudsman