Wirral Metropolitan Borough Council (21 015 490)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 04 Jul 2022

The Ombudsman's final decision:

Summary: Mrs X complained the Council delayed in issuing a final Education, Health and Care Plan (EHCP) for her son, Y, and delayed in meeting the provision set out in the EHCP. Mrs X also complained about the Council’s communication throughout the process. We find the Council to be at fault for delays and poor communication. We recommend the Council apologise to Mrs X and Y, pay £500 and act to prevent recurrence.

The complaint

  1. Mrs X complains the Council delayed issuing an EHCP for her son, Y, delayed in meeting the provision, and communicated poorly. Mrs X says the delays meant Y could not start his course when he should have done which has left him feeling socially isolated and affected his mental health.
  2. Mrs X also complains there are errors with the social care and health sections of Y’s EHCP and his chosen course provider cannot offer the extra support he needs.

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What I have investigated

  1. I have investigated the complaints of delay and poor communication.
  2. I have not investigated complaints about the health section of Y’s EHCP or the extra support needed by his chosen course provider. I have explained why at the end of this decision.

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The Ombudsman’s role and powers

  1. 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)
  2. The SEND tribunal is a tribunal that considers special educational needs. We cannot investigate a complaint when someone has appealed to a tribunal. However, we may investigate whether there may have been a delay in the process which led to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  3. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
  4. 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.
  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

  1. I spoke to Mrs X about this complaint and considered the information she provided.
  2. I asked the Council for the information I needed to consider Mrs X’s complaint and I reviewed all the information it provided. This included:
    • A copy of Y’s final EHCPs from July 2019 and November 2021
    • The EHCP review documents
    • A chronology of events from March 2021 to November 2021, when the final EHCP was issued
    • Emails between the Council and Mrs X
    • Complaint correspondence
  3. I considered the SEND Code of Practice, the Children and Families Act 2014, and the following Ombudsman’s focus reports:
    • ‘Education, Health and Care Plans: our first 100 investigations’ published in October 2017.
    • ‘Not going to plan? Education, Health and Care Plans two years on’ published in October 2019.
  4. Mrs 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

  1. 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.
  2. 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.
  3. Councils must ensure EHCP provision is met. A council will usually do this by providing funding to a school or college to provide the necessary support. A council may also make a payment to a parent or young person so they can organise the provision themselves. This is called a personal budget. 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.
  4. The Code says councils must review EHCPs, at least, annually. 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.
  5. Councils must give notice to all those invited and seek advice and information from all parties. Following the meeting, councils must share a report with all parties within two weeks setting out any recommendations and amendments.
  6. 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.
  7. The EHCP must be finalised within eight weeks of the amendment notice.
  8. Councils should also tell parents they have a right to appeal the final EHCP to the SEND Tribunal.

The Council’s complaint policy

  1. The Council uses a two-stage process for dealing with SEND complaints.
  2. At stage 1, the Council will log the complaint and send it to the appropriate team manager for investigation. The Council’s published target to respond to complaints at stage 1 is up to 20 working days.
  3. If the complainant remains unhappy, they can ask the Council to consider their complaint at stage 2. At stage 2, a SEND Resolution Officer acting as an investigating officer will review the complaint. The investigation will take a maximum of 65 working days and will end with a report of the findings, conclusions, and suggested outcomes.
  4. If a complainant remains unhappy after the stage 2 response, they can refer their complaint to the Ombudsman.

Principles of good administrative practice

  1. In 2018, the Ombudsman published a document setting out principles of good administrative practice and what we expect to see from councils.
  2. 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.

What happened

Issuing the final EHCP and meeting the provision

  1. Y’s EHCP was reviewed in a virtual meeting held at his college on 16 March 2021.
  2. Shortly after the review meeting, the Council’s EHC co-ordinator went on sick leave for a month. The Council says there was no oversight of Y’s case during this time which created a delay as it did not chase the information needed to finalise the EHCP.
  3. On 13 April, the four-week deadline to decide whether to maintain or amend Y’s EHCP passed without the Council making a decision.
  4. The Council received the completed annual review paperwork from Y’s college on 30 June.
  5. On 1 July, the Council issued a letter explaining it would amend Y’s EHCP. This was more than 11 weeks after the 13 April deadline. The letter explained the Council would issue a final EHCP within eight weeks.
  6. On 29 July, Mrs X emailed the Council to let it know Y wanted to do an electrician’s course and other qualifications to support this. Mrs X identified five supporting courses, but not a main electrician’s course, and asked the Council to consider a personal budget for these.
  7. The Council responded to Mrs X on 4 August to confirm the five courses she had identified and the prices of these, which came to £2,609. Mrs X replied that day to explain, as well as those courses, Y wanted to undertake a main electrician’s course. Mrs X copied Y into that email so he could identify the main electrician’s course, but he did not respond and the Council did not try to follow this up.
  8. On 26 August, the eight-week deadline to finalise Y’s EHCP passed without the Council issuing a final EHCP.
  9. On 21 September, the Council emailed Mrs X to explain it had been notified Y intended to enrol at a local college and asked her to confirm this so it could finalise his EHCP. Mrs X responded that day to explain Y had actually finished at the college in question but had been unable to start an electrician’s course because of a lack of support or funding from the Council.
  10. On 22 September, Mrs X emailed the Council to confirm the course Y wanted to enrol on and asked it to contact the provider to arrange payment. Y’s chosen course was 30 weeks long and not dependent on school term dates, meaning Y could start at any time.
  11. On 6 October, the Council agreed to Y’s chosen course and the cost for this, which was a further £1,020. The Council agreed it would pay the cost directly to Mrs X and Y so they had full control of when to start the course.
  12. Mrs X completed the forms to release the funds and returned them to the Council on 7 October.
  13. The Council issued a draft EHCP for Y on 15 October.
  14. Mrs X did not receive the money to fund Y’s course and chased the EHC co-ordinator on 24 October. Mrs X explained she had received the funds for the five supporting courses, but not for the main electrician’s course.
  15. The Council issued Y’s final EHCP on 10 November. This was more than ten weeks after the 26 August deadline.
  16. On 11 November the Council paid Mrs X the remaining amount needed for Y to start his course.

Mrs X’s complaint

  1. Mrs X complained to the Council on 6 September 2021. Mrs X said the Council had failed to secure provision for Y and the EHC co-ordinator had made no effort to communicate about the next steps. Mrs X said this meant Y was out of education and feeling anxious and let down.
  2. The Council acknowledged Mrs X’s complaint on 10 September and explained she should have a response within 20 working days, which would be 8 October.
  3. The Council missed the deadline to respond but wrote to Mrs X on 25 October, at stage 1 of its complaints process. The Council apologised for delays in responding and the lack of communication from the EHC co-ordinator. The Council explained it had received many EHCP assessment requests and the team was struggling to keep up with these.
  4. The Council explained it had contacted Mrs X on 1 July to ask what course Y wanted to undertake but it could not produce a draft EHCP until 15 October as he had not identified the course he wanted to do. The Council explained it agreed a personal budget as soon as Y identified a course. It explained the EHC co-ordinator would continue to offer support in securing the appropriate educational provision.
  5. On 9 November, Mrs X made a stage 2 complaint to the Council. Mrs X explained the Council had not addressed the issues she complained about, and Y was still out of education. Mrs X said the only way she could get responses from the EHC co-ordinator was to communicate through Y’s social worker. Mrs X said the delay starting the course was causing Y real distress.
  6. Mrs X said the complaint response was dismissive and did not take account of the distress Y was going through. Mrs X reiterated her complaint was that Y had no educational placement and the EHC co-ordinator had done nothing to help secure provision. Mrs X asked the Council to set out a personal budget so Y could decide if he wanted to arrange his own educational provision.
  7. The Council wrote to Mrs X on 15 November to acknowledge her stage 2 complaint. Mrs X responded that day to reiterate that her complaint hinged on the provision in Y’s EHCP not being delivered by the Council and this had not been addressed at stage 1.
  8. On 15 December, an investigating officer issued a report on Mrs X’s complaint. They concluded the Council was at fault for:
    • Delays in securing provision for Y – the investigating officer concluded there were delays in seeking and getting the information needed to complete Y’s EHCP. They also concluded the Council had failed to meet the deadlines set out in the Code. They concluded Y had identified his chosen course on 29 July and had to chase to try and secure the funding for this. They also concluded there were delays in finalising Y’s EHCP and in providing the funding for his course.
    • Providing poor communication from the EHC co-ordinator – the investigating officer concluded the communication had been inconsistent. They noted the EHC co-ordinator had recently reduced their work hours but not their caseload and this had caused communication issues.
    • Failing to respond to Mrs X’s stage 1 complaint on time – the investigating officer concluded the response was outside of the Council’s expected timescale.
  9. The Council wrote to Mrs X on 20 December, providing a copy of the investigating officer’s report, and explaining it was upholding her complaint at stage 2. The Council apologised for its failings and offered Mrs X £400 to use towards Y’s educational benefit, and £100 for the time and trouble she had been caused in pursuing her complaint.
  10. Unhappy with the Council’s response, Mrs X contacted the Ombudsman in January 2022.
  11. Mrs X has told us:
    • The social care section of Y’s EHCP is inaccurate and has not been updated.
    • The provision set out in Section F of Y’s EHCP is correct in setting out what he needs but the Council has not delivered this. Mrs X says the course provider cannot deliver the extra support Y needs but the EHC co-ordinator has not done anything to find suitable support provision.
    • The course provider has told Mrs X that Y needs to complete a lower course before he can start his main electrician’s course.
    • She had to pay for support during the days while Y was not in education.
    • The health section of Y’s EHCP is not being delivered and has not been reviewed since February 2019.

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Analysis

Delays in issuing EHCP and providing funding

  1. The Council is at fault for not issuing an amendment notice for Y’s EHCP by 13 April 2021. The Council is also at fault for not finalising Y’s EHCP by 26 August 2021.
  2. Y’s course does not begin and end in line with usual school terms but can be started at any time once it is agreed with the provider. This means Y has not missed any part of the course because of the delay. The injustice is not a loss of education, but delays and uncertainty between August 2021, when Y’s EHCP should have been finalised, and November 2021 when it was finalised.
  3. To remedy this injustice, the Council has offered to pay £400 to be used towards Y’s educational benefit. I find this remedies the injustice to Y from the delays and uncertainty over three months, and it can be used towards any costs incurred during this time.
  4. The Council has now provided Mrs X with the personal budget needed to cover the courses she and Y identified so I would not expect the Council to take any further action at this stage. If Mrs X feels the Council should be doing more to ensure the course provider can provide the support Y needs, or the course is not actually appropriate for Y, she should raise this with the Council directly.

Communication

  1. The timeline available to me shows large periods of inactivity and times where the Council appears to have taken no action in chasing the information it needed to progress Y’s EHCP.
  2. While it was unfortunate the EHC co-ordinator was off for an extended period, the Council ought to have had a system in place to ensure it was still meeting relevant deadlines and its duty to deal with Mrs X promptly and helpfully.
  3. As part of the Council’s stage 2 complaint response, the investigating officer also noted the EHC co-ordinator had reduced their hours but not their workload which created further issues.
  4. The lack of communication from the Council and the EHC co-ordinator amounts to fault. Mrs X was caused an injustice here as the errors in communication would have caused further uncertainty to her and Y.
  5. To remedy this injustice the Council should ensure it has a system in place to monitor correspondence and upcoming deadlines, so service users are receiving responses even when staff are off work or working over capacity.

Complaint handling

  1. The Council is at fault for failing to respond to Mrs X’s stage 1 complaint in line with the deadline in its published policy. This caused further uncertainty for Mrs X. The Council has already offered to pay Mrs X £100 to recognise the delays in its complaint handling and I consider this is a reasonable amount to reflect the uncertainty caused.
  2. Mrs X has said the stage 1 response did not fully address her issues, but I do not find the Council at fault here. I say this because the stage 1 complaint does give the Council’s view on the delays in securing provision for Y. It explains it had now issued an EHCP draft and a personal budget was agreed. As she was unhappy with the response, Mrs X was able to move to stage 2 of the complaint process, as she chose to.

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Agreed action

  1. To remedy the injustice set out above, I recommend the Council, within one month of the date of our final decision:
    • Apologise to Mrs X and Y for the delays in issuing a final EHCP, for the level of communication they received, and for failing to meet its complaint response deadlines.
    • Pay Mrs X the £400 that has been offered in recognition of the delays in finalising Y's EHCP.
    • Pay Mrs X the £100 that has been offered in recognition of the time and trouble she was put to by the Council missing its published complaint deadlines.
  2. Within three months:
    • Provide the Ombudsman with evidence of a process to ensure EHCP deadlines are being met and communications responded to promptly, even when staff are on leave or working at over capacity.
  3. The Council has agreed to these recommendations.

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Final decision

  1. I find the Council at fault for delays in issuing Y’s EHCP and his personal budget. I also find fault with the Council’s complaint handling and the way it communicated with Mrs X. To remedy the injustice identified, I make the recommendations set out above.
  2. The Council has accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. We cannot normally investigate a complaint unless we are satisfied the Council knows about it and has had a chance to respond to it. And we do not have jurisdiction to investigate complaints about the NHS, which is responsible for delivering the health aspects of an EHCP.
  2. Based on the complaint correspondence I have seen, Mrs X has not yet told the Council:
    • She is unhappy with delivery of provision or reviews relating to the health and social care sections of Y's EHCP.
    • Y’s chosen course provider is unable to provide the additional support to meet his needs, as set out in Section F of the EHCP.
  3. I did not investigate these matters as they are premature and because any complaint about the health sections of the EHCP is likely outside my jurisdiction.

    Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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