Summary: Mr X complained the Council did not consult him as part of creating an Education, Health and Care plan for his daughter. The Council was at fault and did not act in line with the relevant law and guidance. This caused Mr X frustration and meant he had to spend avoidable time and trouble in complaining to the Council and then to the Ombudsman. The Council agreed to apologise to Mr X, pay him a financial remedy and review its procedures.

The complaint

1. Mr X complained the Council:
• failed to involve and consult him during the drafting process for his daughter’s EHC plan; and
• delayed sharing his daughter’s EHC plan before it was finalised in 2021.
2. Mr X says that, as a result of the above failures, his views and relevant information were not included in his daughter’s EHC plan.
3. Mr X wanted the Council to apologise for its mistakes and ensure that, in future, it consults him about his daughter’s EHC plan. He also wanted the Council to make service improvements to make sure it does not repeat its failures in the future.

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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. If we are satisfied with an organisation’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

6. As part of the investigation, I have:
• considered the complaint and Mr X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

8. An Education, Health and Care (EHC) plan is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care services.
9. Under section 19 of the Children and Families Act 2014, councils must have regard to the views, wishes and feelings of parents and children, including when producing EHC plans. They must also provide the information parents need to fully understand and participate in processes such as an EHC needs assessment or an annual EHC plan review.
10. If a council decides to issue an EHC plan it must first issue a draft plan for the parents or young person to consider and give them the opportunity to comment on the plan. The Council does not have to provide exactly what the parents request but it should be able to explain why the EHC plan meets the needs of the child. In any case the Council must notify the child’s parents of their right to appeal to the SEND Tribunal and the time limit for doing so.

What happened

11. In 2019 the Family Court decided Mr X’s daughter, S, would live with her mother, and agreed a time Mr X would see S during the week. Both parents kept their full parental rights. Mr X told the Council in October 2020 about the separation and sent it a copy of the court order.
12. In early December 2020 both S’s parents and the Council attend a team around the child meeting to discuss S’s needs, the Council’s EHC assessment and a proposed EHC plan for S.
13. Shortly after the meeting, Mr X asked the Council to send him a copy of the draft EHC plan so he could comment on it. Between December 2020 and early February 2021 Mr X emailed the Council around four times and asked it to send him a copy of S’s draft EHC plan. He also says he made many phone calls to the Council over this time but, despite promising to do so, the Council did not return his calls.
14. In late March 2021 the Council told Mr X that it would send him a copy of the draft EHC plan. A few weeks later the Council sent Mr X the final EHC plan for S.
15. Mr X questioned why he was not involved in the consultation. The following day the Council told him that it only sent a draft copy for comments to S’s mother and that if she wanted his input in the process, she had an opportunity to consult him. The Council told Mr X that if he wanted to appeal the EHC plan to the SEND Tribunal his ex-wife would have to be in agreement with this.
16. In July 2021 Mr X complained to the Council. He said the Council:
• failed to consult with him during the draft phase of the preparation of his daughter’s EHC plan; and
• refused to share the final plan with him.
17. He said that as a result the EHC plan did not contain any of his views about what his daughter is like when she is with him, and only presented information of what happened when she was with her mother.
18. In August 2021 the Council responded to his complaint and said that:
• his ex-wife was the “primary carer” and that is why the Council sent her the draft EHC plan;
• apologised and said the Council found no reason why it should not have consulted Mr X as part of drafting the EHC plan;
• it thought that Mr X still could have contributed to the process if his ex-wife had shared the draft EHC plan with him;
• it apologised for the delay in sending him the final EHC plan;
• it did not think a financial remedy was required; and
• if his ex-wife agreed his comments the Council would add them to section A of S’s EHC plan.
19. In August 2021 Mr X asked the Council to escalate his complaint. He said that:
• the Council had no valid reason not to consult him during the EHC plan assessment process;
• the Council accepted that he should have been consulted, but says his comments would be only added if S’s mother agreed to it; and
• the Council should not rely on S’s mother to share the draft EHC plan with him, and the Council should not treat them as a single unit.
20. In October 2021 the Council issued its final response to Mr X’s complaint and said:
• when Mr X and his ex-wife requested assessment for S they were living together, and the Council sent the acknowledgment of the request to this address. Mr X could have told the Council about any changes in circumstances at that time, but he did not;
• the Council considered S’s mother to be the primary care giver because S spent most of her time with her;
• the Council considered it acted in line with section 19 of the Children and Families Act 2014 as it consulted with S’s mother;
• the remedy to include Mr X’s views in part A of S’s EHC plan as long as S’s mother agreed with them was suitable;
• it considered no financial remedy was necessary as the lack of consultation did not cause any injustice to S or her mother; and
• the Council partially upheld Mr X’s complaint because the SEND policy was not clear on how it determines who the primary care giver is and how the Council would consult them. This would be amended and included in the local offer. The Local Offer provides information for children and young people with special educational needs and/or disabilities (SEND) and their parents or carers in a single place. It shows families what they can expect from a range of local agencies including education, health and social care.
21. Mr X was not satisfied with the Council’s response and in December 2021 he complained to the Ombudsman.

The Council’s response to our enquiries

22. In its response to our enquiries, the Council accepted it should have consulted Mr X during the drafting process of S’s EHC plan. It said that it would apologise to Mr X for failing to do this.
23. The Council also reconsidered a financial remedy and offered to pay Mr X £150 for the time and trouble its faults have put him to.
24. The Council confirmed it has arranged additional training for staff to ensure the faults do not reoccur in the future. The training will focus on what procedures staff should follow when both parents have parental responsibility but are separated. This is to be delivered at the end of May 2022.
25. It said it would also update its internal procedures for EHC plan assessments.

My findings

26. The Council had a duty to involve both S’s parents in the process of drafting her EHC plan, if they wished to take part in the process. Although Mr X wished take part, the Council did not involve him or properly seek his views. This was fault.
27. Because of this, Mr X was denied the opportunity to ensure his views were taken into account when planning the support for S. He was also put to avoidable time and trouble complaining to the Council to ensure this was done.
28. In response to our enquiries the Council offered to pay Mr X £150 in recognition of the injustice its actions caused him. I consider this to be a suitable remedy for the avoidable time and trouble Mr X spent in submitting and chasing his complaint.
29. However, the Council’s failure to consult Mr X in the process of drafting S’s EHC plan and the delay in sending him the finalised EHC plan caused him avoidable distress and frustration. This was added to when the Council only partially upheld his complaints and suggested that it followed the relevant policies and procedures, when it did not. The Council should make a further payment to Mr X for this distress.
30. The Council has already agreed to make service improvements, and I am satisfied these address the faults I have identified. For this reason, I have not made any further service improvement recommendations, and we will ask the Council to confirm once it has implemented those it has already planned to make.

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Agreed action

31. Within one month of the date of my final decision, the Council will:
• apologise to Mr X for its failure to consult him in the process of drafting S’s EHC plan;
• pay Mr X £150 to recognise the avoidable time and trouble he spent in having to complain about the lack of consultation;
• pay Mr X £100 to recognise the avoidable frustration and distress caused by the Council originally not fully upholding his complaint and the delay in sharing S’s final EHC plan with him; and
• confirm to the Ombudsman when the additional training booked for late May 2022 has been delivered.
32. Within three months of the date of my final decision, the Council will:
• confirm what changes, if any, it made to its internal EHC plan assessment policies following the complaint from Mr X; and
• incorporate Mr X’s views in S’s EHC plan.

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Final decision

33. I have completed my investigation. The Council was at fault for not consulting with Mr X during the process of drafting his daughter’s EHC plan and in how it responded to his complaint. The Council agreed to apologise to Mr X, pay him a financial remedy and review its procedures.

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Investigator's decision on behalf of the Ombudsman