Summary: Mrs B complained on behalf of her son, Mr D that the Council failed to provide some of the provision specified in his Education, Health, and Social Care Plan. She also says it missed statutory timescales and caused avoidable delay in reviewing her complaint. We find the Council was at fault for failing to provide some of Mr D’s provision, failing to meet the statutory time limits and failed to properly deal with her complaints. This caused Mr D and Mrs B an injustice of loss of provision, anxiety, frustration, and put Mrs B to the time and trouble of complaining. The Council has agreed to remedy the injustice caused.

The complaint

1. Mrs B complains the Council:

• Failed to provide her son Mr D with sensory Occupational Therapy (OT) Provision as named in his Education, Health, and Care Plan (EHCP) over several years.
• Failed to meet statutory time limits when issuing Mr D’s amended and final EHCPs.
• Failed to properly highlight amendments or deletions from Mr D’s amended EHCP.
• Failed to communicate properly with her or her family about issues concerning Mr D.
• Misinformed her that Mr D’s funding would need to be considered by a specialist education panel, and
• Failed to meet its complaint time limits when responding to her complaints.

2. Mrs B says this has caused her son, Mr D to miss out on his entitled provision for a number of years. She says this has caused distress, anxiety, frustration, confusion, and loss of service to Mr D. She also says it has caused her family anxiety, frustration, uncertainty and put her to the time and trouble of complaining.

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What I have investigated

3. I have used my discretion to investigate matters dating back to April 2020 until the end of October 2021. The Council has upheld most of Mrs B’s complaint. It acknowledges it did not provide provision and that there were delays to the statutory process and its complaint procedure. It has apologised and has offered a monetary payment for the injustice caused. I have investigated the injustice caused to Mrs B and Mr D and whether the Council adequately addressed the fault it identified.

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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 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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
9. 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)
10. 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)
11. 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

12. We corresponded and spoke to Mrs B and made enquiries of the Council. I have read the information Mrs B and the Council provided about the complaint.
13. Mrs B and the Council have the chance to comment on this draft decision. I have considered the responses received before making a final decision.

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What I found

Education, Health, and Care Plan (EHCP)

14. A child with special educational needs may have an EHCP. This sets out the child or young person’s needs and arrangements for meeting them.
15. Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
16. The Special Educational Needs and Disability Tribunal (SEND) considers appeals against council decisions about special educational needs provision.
17. The Council is responsible for securing the specified special educational provision for the child or young person. This means making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
18. These duties are non-delegable. Other than for the period when the emergency measures under the Coronavirus Act 2020 were in place, a council cannot discharge its duty by showing it tried but failed to put the support in place.

Covid 19 and ‘securing’ provision

19. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give councils more flexibility in dealing with EHC Plans and provision. It changed councils’ absolute duty to ‘secure’ the education provision in an EHC Plan to one of using ‘reasonable endeavours’ to do so. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, council’s usual duties returned.

Special Educational Needs and Disability (SEND) Code of Practice 0-25: Statutory Guidance.

20. Section 9.169 says a review must take place within 12 months of any previous review.
21. Section 9.194 says when a local authority proposes to amend an EHC Plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and a notice providing details of the proposed amendments. It should inform the child’s parent they may ask for a meeting with the local authority to discuss the proposed changes.
22. Section 9.176 says the local authority must decide whether it proposes to keep the EHCP as it is or amend the plan and tell the child’s parent or young person within four weeks of the review meeting. If the plan needs to be amended, the local authority should start the process of amendment without delay.
23. Section 9.193 applies to amendments to an existing EHCP following a review, or at any other time the Council proposes to amend an EHCP other than as part of a reassessment. EHCP’s are not expected to be amended on a very frequent basis. Where the Council proposes an amendment, it must send the child’s parent or young person a copy of the existing (non-amended) plan and accompanying notice providing details of the proposed amendments. The child’s parent or young person should be informed that they may request a meeting with the local authority to discuss the proposed changes.
24. The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes. Following representations, if the Council decides to continue to make amendments, it must issue the amended EHCP as quickly as possible and within eight weeks of the original amendment notice.
25. When the EHC plan is amended, the new plan should state that it is an amended version of the EHC plan and the date on which it was amended, as well as the date of the original plan. Additional advice and information, such as the minutes of a review meeting and accompanying reports which contributed to the decision to amend the plan, should be appended in the same way as advice received during the original EHC Plan needs assessment. The amended EHCP should make clear which parts have been amended.
26. Section 9.207 says in a case of a young person who reaches their twenty-fifth birthday before the course has ended, the EHCP can be maintained until the end of the academic year in which they turned twenty-five (or the day the course ends, or the day before their twenty-sixth birthday if later).

The Council’s complaints policy

27. The Council’s complaint policy says at Stage One, complaints should be acknowledged within five working days and a response provided within twenty working days.
28. The Council will tell the complainant within five working days if it will investigate their complaint at Stage Two. It says it will agree a reasonable timescale for investigation and should normally complete Stage Two in 25 working days, extended to 65 working days in complex cases.

What happened

29. I have set out a summary of the key events below. It is not meant to show everything that happened.
30. Mr D has a diagnosis of autism spectrum disorder (ASD), anxiety, sensory processing difficulties and significant language difficulties. He attends a post-16 further education college. His EHCP was due to cease at the end of the academic year 2021/2022 due to his age.
31. Following a tribunal hearing in February 2020, the Council issued a final amended EHCP for Mr D in April 2020. This specified Mr D would receive:

• 12 one-hour sessions with an occupational therapist (OT).
• A bespoke sensory diet developed by the OT with 2 hours for administration.
• Two one-hour sessions to explore alternatives to handwriting with the OT.
• Half Termly reviews (at three hours) to assess Mr D’s OT needs. This worked out to six reviews annually.
• an update report (produced by the OT) to inform the annual review process and will attend the annual review meeting.

32. In May 2021, the Council considered Mr D’s needs at his annual review meeting. Mrs B and Mr D were in attendance. It was decided Mr D’s EHCP needed amending.
33. Mrs B raised concerns with the Council the following day. She asked the Council to explain why her son’s further education funding needed to be heard at a specialist education panel and reminded the Council of transparency when amending or deleting items from Mr D’s EHCP.
34. Mrs B chased the Council for a reply to her questions in June 2021. She again raised concerns that Mr D was “not receiving all of his [sensory OT] provision”. Mrs B also reminded the Council of its need to issue Mr D’s EHCP.
35. The Council said it was looking into her concerns and issued a further amended EHCP in June 2021.
36. The Council said it received a further revised annual review document from Mr D’s college in late June 2021. This contained amendments to Mr D’s OT provision and requested a personal budget for Mrs B.
37. The Council wrote to Mrs B in September 2021 and said:

• It was sorry there had been significant delay in issuing a further amended EHCP after receiving the revised annual review in June 2021.
• It would issue a further draft amended EHCP by early October.
• It had emailed Mrs B, but she had declined a co-production meeting.
• The Council had provided the relevant forms for her to apply for a personal budget.
• It had still not secured provision for occupational therapy.

38. Mrs B continued to raise concerns. She said:

• The Council had only introduced her son’s case worker on the day of the annual review.
• The Council had failed to provide Mr D’s OT provision.
• The failure to provide an OT meant there was no report for the annual review.
• The Council had failed to adhere to statutory guidelines when issuing Mr D’s EHCP.
• Redrafting and amending Mr D’s EHCP 18 weeks after the annual review was unfair.

39. Mrs B made a further complaint in October 2021 after continuing to reiterate similar concerns throughout September and early October. She said she had lost confidence in the Council.
40. The Council responded in early October and said it had referred the complaint to a manager and it would be in touch within 15 days.
41. The Council issued a further draft amended EHCP in early October 2021. This document contained the Council’s proposed amendments to Section F relating to Mr D’s sensory OT provision.
42. The Council issued Mr D’s final amended EHCP in late October 2021. Mrs B had a right of appeal when this was issued. The final amended plan changed Mr D’s previous provision. It said Mr D now required:

• A single session to establish content and duration of course with a sensory OT
• An appropriate number of sessions to take place over the year with a qualified OT.
• A half termly report which will enable teaching and support staff to put in place required applications and procedures.

43. Mrs B disagreed with the amendments made to Mr D’s EHCP. She continued to complain to the Council about its failure to meet statutory deadlines, the historic lack of provision provided to Mr D and the content of the amended plan.
44. In November 2021 the Council said it found an OT provider, but received little response from Mrs B. It said it made the decision to go ahead and arrange an initial screening of Mr D in an attempt to provide him with the sensory occupational therapy.

The Council’s complaint response

45. In December 2021, the Council responded to a number of Mrs B’s complaints under its complaints policy. In its stage one response it:

• Apologised for the late response and said it was less than satisfactory.
• Said as Mr D’s EHCP had been finalised Mrs B had the right to challenge the content through an appeal to the tribunal.
• Its staff had attended refresher training to develop good practice.

46. The Council also sent a further stage one letter on the same day, addressing Mrs B’s further points and questions. In this response it:

• Apologised for the delay in responding.
• Apologised for poor communication when introducing Mr D’s caseworker.
• Said it had been unable to secure provision due partly to the Covid-19 pandemic.
• Said Mrs B had not returned her personal budget paperwork.
• Highlighted that an independent review had recommended areas of improvement which the Council was striving to achieve.
• Was now actively monitoring annual review response times.
• Had now sourced a provider to initiate the assessment process.
• Offered £200 for the delay in adhering to the statutory time limits when issuing Mr D’s final EHCP.
• Apologised for the delay in responding to Mrs B’s complaint and offered £100 for the uncertainty caused.

47. Mrs B remained dissatisfied with the Council’s response and continued to complain about its failure to secure OT provision for Mr D and the delay in responding to her questions.
48. The Council recontacted Mrs B in February 2022, it said it was unable to provide an OT as specified in Mr D’s EHCP and would be closing the case. It said it would seek further quotations from other OT providers, and issue Mrs B with a further amended draft EHCP with the OT recommendations.
49. The Council sent Mrs B an amended draft EHCP in February 2022.
50. The Council conducted an annual review in May 2022. However, Mrs B said the Council had not provided her with enough time to check whether the amendments had been added or removed correctly. Mrs B asked for the annual review to be delayed. Mrs B said she believed she should have received the proposed amendments two weeks before the date of the annual review.
51. In August 2022, the Council sent Mrs B a letter explaining it would cease to maintain Mr D’s EHCP due to his up-coming birthday.
52. Mrs B remained dissatisfied with the Council’s responses and complained to the Ombudsman in February 2022.

The Council’s response to my enquiries

53. The Council responded to my enquiries in August 2022. It said it had issued a cease to maintain letter about Mr D’s EHCP but was in agreement to fund Mr D’s missed provision. It suggested Mr D’s family could use the money to secure private occupational therapy. It also said it:

• Had not provided Mr D with provision since September 2021. This was partly due to factors outside of its control like Covid-19 and lack of qualified OT’s.
• Made its best endeavours to secure Mr D’s provision throughout 2021 and 2022.

• Had not progressed Mrs B’s complaint to stage two.
• Had offered a payment of £200 for delay following the annual review and £100 for delay and failure to respond properly to Mrs B’s complaints.
• Had delivered training and decision-making workshops to staff involved with EHCP’s.
• Had put measures in place to ensure Annual Reviews were triaged and efforts made to adhere to legislation guidance.
• Had undertaken work to ensure caseworkers communicated frequently with families.
• Had supplied a copy of the independent review.

Analysis

54. I have decided to exercise discretion and investigate the injustice caused to Mrs B and Mr D dating back to April 2020. This is because the Council upheld Mrs B’s complaint about its failure to provide Mr D’s OT provision.

Annual Reviews

55. The Council recognised there was delay following Mr D’s annual review. It failed to follow the statutory guidance as set out in the SEND code of practice and should have issued Mr D with a final EHCP (as soon as practicable or within eight weeks) by August 2021. It did not do this and issued Mr D with a final EHCP in October 2021. This was fault and delayed Mrs B’s appellant rights, caused frustration and put her to the time and trouble of complaining. The Council has apologised and offered her £200 for the injustice it has caused. This is what we would have recommended.
56. The Council issued a further amended draft EHCP to Mrs B in February 2022, there is no evidence the Council followed the statutory time limits and issued a final EHCP as soon as practicable or within eight weeks. The family have still not been provided with a final EHCP which it can appeal. This was fault and caused further injustice to Mrs B and Mr D, depriving him of his appellant rights, causing frustration and putting her to the time and trouble of complaining. To remedy the injustice, I have made recommendations below.
57. Mrs B also raised concerns the Council had not been transparent when amending EHCPs or deleting provision. The Council acknowledged Mrs B’s concerns and offered to review whether it should use a highlighting and strikethrough process that could make it obvious for where the changes, amendments and deletions are. It is not for the Ombudsman to say exactly how the Council should set out the plan. However, it should be clear where it makes amendments. I am satisfied the Council’s offer is a satisfactory response to Mrs B’s concerns.

Loss of OT Provision

58. Mr D’s final EHCP as set out in April 2020 said he should receive provision as set out in paragraph 31. The Council issued a further amended final EHCP in October 2021. This set out Mr B’s entitled provision as described in paragraph 42. Following this, Mrs B had a right of appeal to the tribunal. I have not investigated Mrs B’s complaint about loss of provision after October 2021.
59. The Council accepts it failed to provide Mr D’s OT provision and has agreed to fund Mr D’s missed provision. On the evidence I have seen, Mr D has not received the provision he was assessed as needing between April 2020 and October 2021. The SEND legislation is clear, the Council should have provided the OT provision as set out in his EHCP. It did not do this, and this was fault, causing Mr D to miss out on his provision. It also caused Mrs B distress, uncertainty and put her to the time and trouble of complaining. As the period between April 2020 and July 2020 was covered by the amended legislation due to Covid-19, I would have expected the Council to have had OT provision in place at the beginning of the autumn term in September 2020. I have recommended a remedy for the injustice caused.

Complaint handling

60. The Council has acknowledged it did not complete its complaints procedure properly. It has offered to pay Mrs B £100 for the injustice caused by this fault. I am satisfied this remedy is in line with what we would make using out guidance on remedies.

Post 16 Placement Funding

61. In a recent decision against this Council, the Ombudsman said there was no reason to refer post-16 cases to specialist education panels. The Council accepts it misinformed Mrs B and was wrong to have referred Mr D’s placement to the specialist education panel. This was fault and caused Mrs B uncertainty and distress. The Council has apologised to Mrs B for the injustice caused and this is what we would have recommended.
62. Having considered the injustice caused, it is appropriate that the Council has apologised for the delays in the review and complaint process and missed OT provision. However, I do not consider it has adequately addressed the injustice to Mrs B and Mr D and have recommended further remedies to address the injustice caused.

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Agreed action

63. To remedy the injustice identified the Council has agreed by 24 November 2022 to:

• Apologise to Mrs B and Mr D for failing to provide OT provision causing distress, frustration, and confusion.
• Pay Mrs B £1500 for Mr D’s lost provision between September 2020 and October 2021.
• Pay Mrs B £300 for distress, frustration and uncertainty and putting her to the time and trouble of complaining in failing to meet the statutory time limits following annual reviews.
• Pay Mrs B £100 for uncertainty caused by poor communication and failure to adhere to the complaints policy.
• Share this decision with staff dealing with EHCP’s reminding them to adhere to statutory timescales and to follow its complaints policy.

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Final decision

64. I find fault with the Council for failing to provide Mr D with the OT provision as specified in his EHCP. I also find fault with the Council for failure to adhere to the statutory timescales and for poor communication and delay in responding to Mrs B’s complaints. The Council has agreed to remedy the injustice caused.

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Parts of the complaint that I did not investigate

65. I have not investigated the Council’s actions in relation to Mr D’s provision after 27 October 2021. This is because Mrs B had the right to appeal to the tribunal following the finalisation of Mr D’s plan. The issues Mrs B complains about post October 2021 involving Mr D’s EHCP cannot be separated from the issues that could be considered at a tribunal. Therefore, I will not investigate these as it is reasonable to have expected Mrs B to appeal on Mr D’s behalf.

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Investigator's decision on behalf of the Ombudsman