Summary: the Council delayed issuing Mrs B’s son’s education, health and care plan, initially said it would not make any amendments, provided an incorrect date for the next review of the plan and failed to properly communicate with her. Those failures led to a delay in additional provision for Mrs B’s son and led to him accessing less education, as well as causing Mrs B significant distress. An apology, procedural changes and payment to Mrs B is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• delayed issuing her son’s education, health and care plan (EHCP) following a review in October 2020;
• initially said it did not intend to make any amendments to the EHCP, despite what the review meeting had agreed;
• failed to send her a copy of the EHCP, which denied her right of appeal;
• failed to ensure her son received full-time education;
• provided an incorrect date for the next review of the EHCP;
• failed to ensure the hub provided up-to-date information for her son which meant the school was not working off the right EHCP;
• failed to properly communicate with her; and
• failed to complete a carers assessment for her and provide her with services.
2. Mrs B says fault by the Council has caused her distress and she has suffered financially as her son has been at home instead of school. Her son has also missed out on both special educational needs provision and education.

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The Ombudsman’s role and powers

3. 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)
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. 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)
6. 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

7. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mrs B 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

What should have happened

9. The Special Educational Needs Code of Practice (the code) says the first review of an EHCP must be held within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review.
10. The code says within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHCP as it is, amend it, or cease to maintain it, and notify the child’s parent or the young person and the school or other institution attended. If the EHCP needs to be amended, the local authority should start the process of amendment without delay.
11. The code says following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHCP as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.
12. The Council has a statutory duty under Section 19 of the Education Act 1996 to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’. Councils usually expect schools to arrange off-site provision in the first instance, but the duty to provide full-time education remains with the Council.
13. Under the Children and Families Act 2014 (the Act) the Council has a duty to assess the needs of parent carers of disabled children. The Act says the Council must assess parent carers if it appears the parent carer may have need for support or where it receives a request from the parent carer to assess the need for support.

What happened

14. Mrs B’s son was diagnosed with autism in 2017 and has had an EHCP since 2018. Mrs B’s son lives at home with Mrs B, his father and his two siblings.
15. Mrs B’s son began attending education provision at On Track (the school) in March 2020. The Council issued a final EHCP in June 2020. As a result of a single assessment completed in July 2020 the Council put in place a package of respite measures. That involved 8 hours per week enabling service for 39 weeks during term time, 12 hours per week enabling service for 13 weeks during school holidays and 26 overnights to be used flexibly.
16. In September 2020 after several months of reporting problems Mrs B raised concerns about the suitability of the school as it did not appear it recognised her son needed an alternative timetable with activities and no academic work at first. Mrs B told the Council the activities her son had been promised were not available and instead the school required her son to be on site which was not appropriate. After further difficulties the Council held an emergency review of the EHCP in October 2020. That review decided amendments were required to the plan.
17. In December the school agreed to Mrs B’s suggestion of training for staff at the school on how her son’s use of language and medical issues affected him so staff could understand and build trust with him.
18. In January 2021 Mrs B emailed the school and Council to record the allocated workers for her son had had a positive impact on him.
19. Mrs B chased the Council in March 2021 for the amended EHCP.
20. Later in March at Mrs B’s request the school agreed a later start date for her son which it would review after four weeks.
21. Mrs B raised concerns about the timetable in place for her son in April 2021 and asked for a meeting with the school. A new caseworker took over the case later that month. The Council initially told Mrs B it did not intend to amend the EHCP. It later apologised for that and agreed it needed to make amendments.
22. Mrs B chased the Council again for the draft EHCP in June 2021. At that point Mrs B told the Council her son had not been attending school for the previous six days.
23. The Council issued an amendment notice for the EHCP on 23 June 2021. Mrs B asked the Council to provide a copy of the EHCP without the previous information removed so she could comment.
24. Mrs B raised further concerns about the timetable proposed for her son and the plans from September 2021. The Council contacted the school and asked it to confirm all timetables and proposed plans with Mrs B before the end of term. Mrs B contacted the Council again later in July as there had been a last-minute change to the timetable which had impacted on her son.
25. Mrs B chased the Council in August for a copy of the EHCP without the previous information removed. The Council provided that and told Mrs B it would delay issuing the final EHCP until she had provided her comments. Mrs B agreed to that. Mrs B provided her comments on 21 September.
26. At the end of September the Council confirmed the support and budget to meet the outcomes for Mrs B’s son. That included 8 hours per week enabling service for 39 weeks during term time, 12 hours per week enabling service for 13 weeks during school holidays, 26 overnights to be used flexibly and 12x2 hour sessions between 1 October 2021 and 31 December 2021 for enabling. The Council also told Mrs B she could use £300 from her son’s excess funds in his account to purchase help in the home between October and December 2021.
27. The Council issued the final EHCP on 13 October.
28. Mrs B raised concerns about the school not complying with the EHCP by making changes to the timetable without notice and allocating too many members of staff to work with her son. The Council reminded the school to follow the EHCP and arranged a meeting. At that meeting in December 2021 all parties agreed to give the school placement longer to see whether it could provide appropriate provision to Mrs B’s son.

Analysis

29. I have exercised the Ombudsman’s discretion to investigate the period from October 2020 onwards. That is because I am satisfied Mrs B has been in constant contact with the Council since then.
30. The Council concedes there was delay issuing Mrs B’s son’s EHCP following a review in October 2020. The Council also accepts it wrongly told Mrs B in April 2021 it did not intend to make any changes to the EHCP as that is not what the review had agreed in October 2020. I set out in paragraphs 10 and 11, the timescales the Council is supposed to follow when reviewing an EHCP. Delay providing the plan to Mrs B also delayed her being given a right of appeal, although I do not consider that caused her a specific injustice in this case given she did not have to appeal the plan. Clearly the Council failed to meet any of the timescales set out in the code though. That is fault. Given the final plan issued in October 2021 included new provision, specifically around the number of staff Mrs B’s son should work with during any period, I consider it likely Mrs B’s son missed out on special educational needs provision as a result of the Council’s delay issuing the final plan.
31. I also consider it likely, on the balance of probability, the delay issuing the plan affected Mrs B’s son’s willingness to engage with the school which led to him attending less than the hours on offer to him. It is clear from the documentary evidence part of the issue here was the school not recognising the impact on Mrs B’s son of having too many people involved in his provision. That was not addressed until the October 2021 plan and should have been addressed earlier.
32. I note the school still did not put that aspect of the plan into place until December 2021. The actions of the school fall outside the Ombudsman’s jurisdiction. However, the Council remains responsible for ensuring a child receives full-time education, or as much education as the child is able to access. The Council is also responsible for ensuring special educational needs provision is in place. As I consider it likely the failure to amend the plan led to Mrs B’s son becoming further disengaged with the school due to the number of people involved in his provision I consider the delay issuing the plan likely meant Mrs B’s son missed out both on special educational needs provision and education. Given Mrs B’s son was on a reduced timetable and has not been able to access academic subjects I consider a suitable remedy would be for the Council to pay Mrs B £200 per month to reflect the lost provision and lost education. The provision for Mrs B’s son was not remedied until December 2021. However, taking into account the timescales allowed for completing changes to an EHCP allowed for in the code I consider this means there was unreasonable delay by the Council of 10 months. I therefore recommended the Council pay Mrs B £2,000 to reflect the lost provision and lost education. That also takes into account the period when the Council put the issue of the final EHCP on hold to allow Mrs B to submit her comments. The Council has agreed to my recommendation.
33. It is also clear delay sorting out the provision and the impact that had on Mrs B’s son also had a significant impact on Mrs B. Mrs B had to go to time and trouble to pursue her complaint and sort out her son’s EHCP and education. It is also clear this had an impact on Mrs B’s mental health given her son was out of education more often than he otherwise would have been which meant she did not get as much respite as she would normally have. To remedy that I recommended the Council pay an additional £750 to Mrs B. That makes a total financial remedy of £2,750. The Council has agreed to my recommendation.
34. Given the delay was substantial in this case and it seems likely there would have been further delay issuing the plan if Mrs B had not chased the Council I also recommended the Council put in place a procedure to ensure there is a method for caseworkers to identify dates when EHCP reviews are required and to ensure there is a process for following up after a review has taken place to ensure the plan is not delayed. That should ensure this type of situation does not occur again. The Council has agreed to my recommendation.
35. The Council also accepts it provided an incorrect date for the next review of Mrs B son’s EHCP. The Council accepts the review date should have been October 2021, rather than April 2022. That again is fault. Given the final plan was issued in October 2021 after input from Mrs B I do not consider it likely Mrs B’s son missed out on any provision specifically as a result of the wrong date being held for the review. I therefore recommended the Council apologise for the incorrect information it gave Mrs B. The Council has agreed to my recommendation.
36. Mrs B says the Council failed to ensure the hub, which is the online central resource which provides all the documentary evidence for EHCP for an individual, had up-to-date information. Mrs B says this means her son’s school was working off the wrong EHCP. I am satisfied the Council checked that position with the school in 2020. The school confirmed the EHCP it was working to, which is the last EHCP issued before the October 2021 plan. I am therefore satisfied whether the hub had up-to-date information did not affect the provision as the school was working from the right EHCP. The issue is that the amendments required to that EHCP were delayed.
37. Mrs B says the Council failed to properly communicate with her, particularly when a new caseworker took over. Mrs B says the Council did not tell her about the change of caseworker and that caseworker then failed to respond to her correspondence. The Council has apologised for the failure to tell Mrs B about the change of caseworker. I consider that a suitable remedy for that part of the complaint. In terms of failing to respond to correspondence, there were a few occasions when the caseworker did not reply to Mrs B. I consider an apology satisfactory remedy for that.
38. Mrs B also says the Council failed to complete a carers assessment for her and provide her with services. The evidence I have seen satisfies me the Council considered Mrs B’s needs as a carer when it completed a single assessment for her son in July 2020. As a result of that assessment the Council put in place respite provision, which I refer to in paragraph 15. That provision largely reflects the provision the Council put into place when it carried out a carers assessment for Mrs B in 2021, although I am aware the Council also agreed for Mrs B to use some of her son’s unspent funds at that point to purchase some support and made some additional enabling support available for three months. Given the content of the July 2020 single assessment I could not say the Council failed to consider Mrs B’s needs as carer or that it failed to provide her with services. I recognise though that because of the delays completing the EHCP review process and the impact that had on her son engaging with education Mrs B has struggled more than she would otherwise have had to. I have taken that into account in the financial remedy referred to in paragraph 33.

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Agreed action

39. Within one month of my decision the Council should:
• apologise to Mrs B and her son;
• pay Mrs B £2,750;
• put in place a process to monitor dates for annual reviews of EHCP’s and to follow up on those reviews once they have taken place to ensure the final EHCP is not delayed.

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Final decision

40. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman