Summary: Mrs X complained about the support the Council provided for her son’s special educational needs. The Council was at fault for delays in issuing an amended EHC plan and completing an agreed social care reassessment. This caused avoidable frustration and worry for Mrs X for which the Council agreed to apologise and pay a financial remedy. The Council also agreed to review how it monitors and arranges social care assessments for disabled children.

The complaint

1. Mrs X complained about the support the Council provided for her son, Y’s, special educational needs. She said the council:
• failed to issue an amended Education Health and Care plan within the required time limits, after she appealed to the SEND Tribunal;
• failed to complete a social care reassessment after the tribunal recommended it to or provide appropriate social care support; and
• refused to arrange or attend the latest annual review meeting when Y’s school could not do so.
2. As a result, she said that Y went without support he should have received, was without a plan for his transition to further education and they both suffered avoidable distress. She wanted the Council to apologise, make up the support Y missed and arrange the annual review.

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The Ombudsman’s role and powers

3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
10. 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

11. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
12. Mrs 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

Education health and care plans

13. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
14. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. Both the law and guidance also set out the procedure for reviewing and amending EHC plans.
15. Councils can require a child’s school to carry out reviews on its behalf. (Section 20(1), Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.173)
16. The following people should be invited to an annual review meeting:
• the child’s parent or the young person;
• the head teacher or principal of the school attended the by child or young person;
• an appropriate officer from the Council’s SEN team;
• an appropriate health care professional; and
• an appropriate officer from the Council’s children’s social work team. (Section 20(2), Special Educational Needs and Disability Regulations 2014)
17. The person arranging the meeting must give those invited at least two weeks’ notice of the meeting and must obtain advice and information from those people who must be invited, which should be circulated at least two weeks in advance of the meeting. (Section 20(3) and 20(4), Special Educational Needs and Disability Regulations 2014)
18. Where the Tribunal orders a council to amend an EHC Plan, the council must amend the EHC Plan within five weeks of the order being made. (Section 44, Special Educational Needs and Disability Regulations 2014) 

Disabled children

19. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
20. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.
21. Services which can be provided under section 2 CSDPA include:
• practical assistance in the home including home based short breaks / respite care;
• recreational / educational facilities including community based short breaks; and
• travel and other assistance.
22. The expectation of the ‘Working Together to Safeguard Children’ guidance is that an assessment which identifies significant needs will generally lead to the provision of services, but it is not the case that there is a duty to meet every assessed need. Whether a service is required is dependent on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and take into account their available resources when providing services under section 17 of the Children Act.
23. If a council is satisfied it is ‘necessary’ to provide support services under section 2 of the CSDPA then services must be provided regardless of the council’s resources.
24. Assessments should take account of the needs of the whole family. While some services may be offered directly to the disabled child, services may also be offered under section 17 to parents or siblings.
25. The Courts have found (R (L and P) v Warwickshire CC, 2015) that not every disabled child will necessarily require a full assessment by a social worker. Those with lower-level needs may be assessed via Early Help. Councils should be able to demonstrate how they have determined the level of need.

What happened

Background / tribunal appeal

26. Mrs X’s son, Y, has special educational needs and, from early 2021 had an EHC plan issued by the Council. Mrs X was not satisfied with the provision set out in Y’s first EHC plan, so she appealed to the SEND Tribunal about this.
27. In November 2021 the Tribunal ordered the Council to amend Y’s EHC plan, including:
• changing how the plan described Y’s needs;
• extra support from a speech and language therapist; and
• that Y’s school should integrate Y’s physiotherapy into both an occupational therapy programme Y took part in, and into his physical education lessons.
28. The Council also agreed to arrange a new social care assessment to decide what support Y needed to improve his independence and ability to access the community.
29. Although the Council made the ordered changes to Y’s EHC plan, it did not send the amended plan to Mrs X or Y’s school until March 2022, after Mrs X chased the council for the updated plan. In its response to Mrs X’s complaint, the Council accepted it had made a mistake when trying to share the plan and apologised for the delay.

Social care reassessment

30. Mrs X asked the Tribunal to decide that Y needed help from a personal assistant to access the community and improve his independence. The Tribunal decided there was not enough evidence to justify this but recommended the Council reassessed Y’s social care needs.
31. Mrs X and her family had some continuing involvement from social services both before and after the tribunal process. The Council was holding regular Team Around the Family (TAF) meetings which involved the various professionals supporting Mrs X and her family. The notes of a TAF meeting in mid-December 2021 noted the Council planned no direct work with Y, but that he would benefit from other community services for support with attending activities and a local youth club. In early March 2022 the Council closed its direct work with Mrs X.
32. Shortly after this, the Council reallocated Mrs X’s case to a social worker from the Council’s specialist team for children with disabilities. The referral specifically refers to this being the reassessment recommended by the Tribunal.
33. The social worker carried out a visit to Mrs X and Y in mid-March 2022. The social worker sought the views of both Mrs X and Y, and considered the welfare of Mrs X’s other children.
34. In their report, produced in July 2022, the social worker noted that Mrs X would like Y to have support accessing the community and recommended that Y get support from “a buddy or a mentor who will […] support him to socialise and interact with peers and participate in social activities which meet his interest as well as promote his independent skills”. The social worker decided that this help could be provided through services available in the community but that Mrs X and Y would benefit from support from its Early Help team to access those services.
35. The Council shared its report with Mrs X in August 2022, which was after Mrs X complained to the Ombudsman.

Annual review

36. The first annual review for Y’s EHC plan was due to take place in January 2022. The Council asked Y’s school to arrange and hold the review meeting.
37. Shortly after Y’s school started arranging the meeting, Mrs X told the Council she thought the school should have sought updated advice for more professionals than it had. The Council replied to Mrs X and explained the school was responsible for arranging the review, but that it would forward Mrs X’s concerns to the school.
38. The review meeting arranged for January 2022 did not take place because some key people who were due to attend the meeting had COVID-19. Over the next few months, Mrs X and the Council exchanged emails about whether it was the school or the Council that was responsible for arranging the review meeting for Y’s EHC plan.
39. In early February 2022, Mrs X emailed the Council to say that she had not received the updated advice before the rearranged review meeting which was due to take place in a few days. The Council again told Mrs X it was the school’s responsibility to arrange the meeting, but that it would contact the school about Mrs X’s concerns.
40. Mrs X complained to the Council about its approach to attending and arranging the meeting in late March 2022. The Council replied in early April confirming its policy that it delegated annual review meetings to schools. Mrs X wanted a Council officer to attend the meeting. The Council told Mrs X that it could not attend this review meeting, but it intended to attend the next review, around September 2022, which would plan for Y’s transition to the next stage of his education.
41. The school again tried to rearrange the review meeting but the Council says Mrs X refused to agree to a new date unless the Council also agreed to attend.

My findings

Delays following the 2021 tribunal decision

42. The Tribunal issued its decision on 11 November 2021, so the Council should have issued the amended EHC plan by 9 December 2021. However, the Council has accepted it only sent the amended plan to Mrs X and Y’s school in early March 2022. This was 11 weeks late and I am satisfied this delay was fault.
43. Mrs X says the delay in sending the plan to Y’s school meant that Y went without some of the provision the tribunal recommended. However, in its response to my enquiries the Council said it had discussed the working document with Y’s school during the tribunal process and the provision in the amended plan was in place from September 2021.
44. The evidence shows that much of the changes in provision in Y’s EHC plan were agreed between Mrs X and the Council during the tribunal process. The Tribunal itself did not make significant changes at the hearing. There is also evidence, from an early December 2021 multi-disciplinary meeting, which shows that Y was receiving support from a speech and language therapist and that Mrs X had shared Y’s physiotherapy plan with the school, which was feeding this into Y’s physical education lessons.
45. Having considered all the evidence, I am satisfied that most of the changed provision in Y’s amended EHC plan was in place by the time the Council should have issued the amended plan, despite the Council not having shared the amended plan correctly. Therefore, I do not think the delays in sharing the plan caused an injustice to Y. However, I am satisfied that the delay in sharing the plan with Mrs X caused her avoidable frustration and inconvenience.

Social care assessment

46. It is not our role to decide what social care support Y should receive; that is the Council’s responsibility. Our role is to assess whether the Council made its decision about this properly. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
47. The assessment and report completed by the social worker between March and July 2022 clearly considered both Y’s needs, Mrs X and Y’s views, and the needs of Mrs X’s other children. The social worker met with both Mrs X and Y, and considered how Y’s needs might be met. I am satisfied that the social worker considered the relevant questions and evidence during their assessment, has explained the reasons for their recommendations and that decision was made without fault.
48. I appreciate that Mrs X does not agree with the support the social worker has recommended. Since there was no fault in how the Council made its decision, I cannot question the outcome.
49. However, it took until March 2022 for the Council to start the reassessment process and then several months after this for the Council to share its assessment with Mrs X. In my view, these were significant delays which amounted to fault. The Council has not provided any explanation for why it took so long to either start or complete the assessment after it agreed to at the tribunal hearing.
50. Although there were delays in completing and sharing the assessment, I do not believe this caused an injustice to Y. The support the Council decided was appropriate had been previously offered to Y, so I do not think the delays meant Y went without support which was otherwise not available to him.
51. However, I am satisfied that the delays and poor communication about the progress of the reassessment caused Mrs X avoidable frustration and worry.

Annual review

52. The law allows councils to require a child’s school to carry out annual review meetings for EHC plans on their behalf. The Council’s policy is to delegate annual review meetings for children who attend school to the school’s headteacher.
53. We generally cannot consider the actions of schools. However, councils remain responsible for ensuring that review meetings are carried out correctly and we expect councils to act where they have reason to believe that a review meeting is not being carried out in accordance with the law or statutory guidance.
54. When Mrs X raised her first concern about what advice the school had sought in January 2022, the evidence suggests the school had invited and requested updated advice from the required professionals according to the code of guidance. I am satisfied there was no reason, at this stage, for the Council to believe that it needed to take any action about how the school was arranging the annual review meeting.
55. When Mrs X raised further concerns about not having received copies of the advice in advance of the rearranged meeting in February 2022, there was a genuine question about whether the school had complied with the code of guidance. However, the Council has not provided any evidence to show it raised these concerns with the school or considered whether it needed to intervene to ensure that the review meeting was carried out correctly. I am satisfied that the Council’s failure to do this was fault.
56. Although the Council failed to consider whether it should intervene, I am satisfied this failure did not cause an injustice to Mrs X or Y. This is because there was an ongoing dispute between Mrs X and the Council about whether the Council would attend the meeting. The Council did not have to attend the meeting and explained to Mrs X why it did not intend to do so. Despite this, the evidence shows that Mrs X refused to agree to a review meeting without a council officer present. Therefore, I am satisfied the evidence shows that, even if the Council had intervened and provided guidance or instructions to the school about how to arrange the meeting, Mrs X would have still refused to attend.

Remedy

57. The Council has already apologised to Mrs X for the delays in issuing the amended EHC plan. In its response to my enquiries the Council also offered to pay Mrs X £250 to recognise the impact on her of those delays.
58. I have found the Council caused avoidable distress to Mrs X both in the delays in issuing the amended EHC plan, delays in starting and completing the social care reassessment and how it communicated that assessment with Mrs X. I am satisfied that the £250 the Council offered is a suitable remedy for this distress.

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Agreed action

59. Within one month of my final decision the Council will:
• apologise to Mrs X for the frustration and worry caused by the delays and poor communication when carrying out the social care reassessment for Y; and
• pay Mrs X the £250 it has offered to recognise the distress caused by the delays in both sharing the amended EHC plan and completing the social care reassessment.
60. Within three months of my final decision the Council will review how it monitors and arranges social care assessments for disabled children to ensure it completes these within a reasonable period of time.
61. I would also have recommended that the Council reviews how it shared amended EHC plans following tribunal decisions, however I am satisfied the Council has already taken appropriate action to prevent the same fault happening in future.

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Final decision

62. I have completed my investigation. The Council was at fault for delays in issuing an amended EHC plan and completing an agreed social care reassessment. This caused avoidable frustration and worry for Mrs X for which the Council will apologise and pay a financial remedy. The Council will also review how it monitors and arranges social care assessments for disabled children.

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Investigator's decision on behalf of the Ombudsman