Summary: Miss B complained the Council failed to deliver her daughter, C’s provision as named in her Education Health, and Care Plan. It has also failed to adhere to statutory time limits and has caused unacceptable delay when replying to her concerns. Miss B said this has caused C to lose provision. It has also caused Miss B distress, uncertainty, frustration and put her to the time and trouble of complaining. We find fault with the Council for failure to provide some provision, for failing to adhere to the statutory guidelines following annual review and when issuing C’s final Education, Health, and Care Plans. We also find fault with the Council for poor record keeping and poor complaint handling. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Miss B complains the Council failed to:

• Provide C with her entitled provision as named in her Education Health and Care Plan (EHCP) from 2020 until 2022.
• Adhere to statutory time limits following C’s annual review in January 2021.
• Adhere to statutory time limits following C’s annual review in May 2022.
• Issue a final EHCP within the statutory time limits in both 2021 and 2022.
• Adequately respond to her concerns in a timely way.

2. Miss B said this caused C to miss her entitled provision. This has caused C, Miss B, and her wider family distress. She has said it has resulted in triggering severe mental distress, anxiety, and depression, leading her to seek advice from health professionals. Miss B also said this caused her uncertainty, frustration, put her to the time and trouble of complaining and impacted on her ability to work.

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What I have and have not investigated

3. Miss B complained to the Ombudsman in August 2022 about matters dating back to September 2020. The law says we cannot investigate late complaints unless we decided there are good reasons. I have exercised my discretion to investigate matters from January 2021 when C’s annual review took place. This is because Miss B’s continually complained to the Council and it has upheld part of her complaint. However, I will not investigate matters in 2020 as Miss B could have complained to us at the time.

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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 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)
7. 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

8. We corresponded with Miss B and made enquiries of the Council. I have read the information Miss B and the Council provided about the complaint.
9. I have considered Miss B’s and the Council’s comments before making this final decision.

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What I found

Education, Health, and Care Plan (EHCP)

10. A child with special educational needs may have an EHCP. This sets out the child’s needs and arrangements for meeting them.
11. Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
12. The Special Educational Needs and Disability Tribunal (SEND) considers appeals against council decisions about special educational needs provision.
13. The Council is responsible for securing the specified special educational provision for the child. 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.
14. 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.

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

15. 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.
16. 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 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.
17. When a council issues a decision to amend notification to a parent after an EHCP annual review meeting, it must also send the proposed amendments.

The Council’s complaints process

18. The Council has a two-stage complaint process.

• The initial review where it should respond within ten working days of acknowledgement.
• A further review which should be responded to within twenty working days.

What happened

19. I have set out a summary of the key events below. It is not meant to show everything that happened.
20. The Council currently maintains an EHCP for C. Her most current EHCP was finalised on 29 September 2021. This sets out her special educational needs.
21. Throughout 2021 and into 2022, Miss B complained to the Council and raised concerns it was failing to meet C’s needs or adhere to its statutory duties.

Events in 2021

22. In early January 2021, the Council was maintaining an EHCP for C dated 29 January 2020.
23. An annual review was conducted in mid-January 2021. The Council said the school sent it a record of the annual review and the associated documents in February 2021. Miss B raised concerns that C needed extra support and explained she was concerned about incidents and changes to C’s behaviour.
24. Miss B chased the Council for its reply in April 2021. She asked the Council what progress it had made, and whether it was amending, ceasing, or maintaining C’s EHCP. Miss B told the Council this delay was impacting on C’s entitled provision and was delaying her right to appeal to the SEND tribunal.
25. The Council responded to Miss B around ten days later. It apologised for not notifying Miss B within four weeks of the review meeting of its intention to amend C’s EHCP. It accepted it had not adhered to the statutory timescales. It also said:

• The school had not sent it documents which had caused a delay.
• It had only recently received additional paperwork.
• It would shortly issue a draft amended EHCP.

26. The Council issued Miss X with an amended draft EHCP on 29 April 2021.
27. Miss B responded to the amended draft EHCP with representations and told the Council she believed C’s needs would be better met in a specialist setting.
28. The Council considered C’s needs and Miss B’s views at a panel meeting in May 2021. However, it decided C’s needs could be met in a mainstream setting.
29. Following the Council’s decision, Miss B asked the Council to amend C’s EHCP and consider naming a new school on C’s EHCP.
30. The Council said it consulted with school, however, it said it was unable to meet C’s needs. The Council issued the school with a direction letter in July 2021.
31. Miss B complained to the Council in late August 2021. She said she had still not received C’s final EHCP despite her annual review taking place eight months previously in January. She also said she had failed to receive a response from the SEN officer when she had raised her concerns.
32. The Council responded to Miss B in September 2021. It again apologised for delays in processing C’s annual review and for failing to issue C’s final EHCP. It noted Miss B had had been sent a draft amended plan in April 2021 and it had approved additional funding to ensure C’s transition to a new school, which it would name in the forthcoming final EHCP.
33. In September 2021, the Council agreed to fund a 1:1 teaching assistant to support C’s needs. It issued Miss B with a draft amended plan on 9 September 2021.
34. The Council issued Miss B with a final EHCP on 29 September 2021. C’s EHCP stated that the Council would fund a full time Teaching Assistant (TA) for the equivalent of 25 hours a week from 1 September 2021 to 22 July 2022 to support C’s needs.
35. At this point Miss B had the right of appeal to the SEND tribunal and could have exercised this right if she so wished.
36. The Council also said it put a transition plan in place to help C adapt to moving schools. Miss B contacted the Council in October 2021and asked when the transition plan would be implemented.
37. The Council said C started at her new school with a 1:1 teaching assistant in November 2021.

Events in 2022

38. Miss B said she raised concerns with C’s allocated SEN officer on several occasions in early February 2022. She also said she contacted the school to explain C was not receiving her entitled provision.
39. Miss B complained to the Council in March 2022. She said the Council had failed to ensure C’s 1:1 teaching assistant support was in place. Miss B said C had not had access to this provision since January 2022, which had caused her to struggle to cope.
40. The Council said Miss B’s MP raised a further complaint and chased a response on behalf of Miss B in April 2022. This reiterated Miss B’s concerns and said she had not received a response to her complaint.
41. The Council’s notes show it extended the deadline to respond to Miss B’s complaint on four occasions. The Council said it had responded to Miss B on 19 April 2022 but has been unable to locate its response.
42. However, I have seen a response dated 19 April 2022. The Council partially upheld Miss B’s complaint. The Council said it had contacted the school on three occasions between February and March 2022 to raise its concerns about lack of provision and to ensure appropriate support was delivered. It said following its discussions with the school and taking Miss B’s views into account, it decided to arrange an early annual review.
43. C’s annual review took place in early May 2022. C’s school said it was unable to meet her needs. Miss B asked the Council to consider a new placement for C, preferably at a specialist setting. The Council’s notes show it explained it intended to amend C’s EHCP.
44. Miss B made a further complaint to the Council in May 2022. She said she had contacted the SEN officer on three occasions to explain C was not receiving her entitled 1:1 provision.
45. In June 2022, the Council considered Miss B’s request for C to move to a specialist placement at a panel meeting. The panel agreed to explore specialist settings for C.
46. The Council said it had consulted with three specialist schools. It said all responded to say C’s needs could not be met or were unable to offer C a placement.
47. The Council responded to Miss B’s complaint in July 2022. It partially upheld her complaint and said:

• It recognised Miss B believed C had not had access to a 1:1 teaching assistant since December 2021.

• The annual review report noted C had 1:1 support in most lessons.

• The Council had spoken with the school about Miss B’s concerns on three occasions between February and March 2022.
• While it recognised its duty to secure provision, it had delegated the delivery to the school and had provided funding for 1:1 support.
• It was actively seeking a new specialist placement for C.
• It had attempted to resolve Miss B’s concerns.

48. Miss B again raised concerns as to whether the Council had reinstated funding for C to access her 1:1 support from a teaching assistant in August 2022. She requested this should be in place for September 2022.
49. The Council issued a draft amended EHCP on 11 August 2022.
50. The Council said it considered Miss B’s request for a specialist school and funding at a panel meeting in August 2022. It also recognised this was a transition year for C.
51. Miss B complained to the Ombudsman in August 2022.
52. Miss B emailed the Council in September 2022 and said she was unhappy with the draft EHCP.
53. The Council responded to my enquiries in late October 2022. It said it had been unable to provide SEN case notes as no notes were recorded. It also failed to locate some responses to Miss B’s complaints. It said this was due to high staff turnover or staff leaving. It also said it was now considering C’s placement at a specialist school and was in consultation with further schools. It noted that while it partially upheld Miss B’s complaint about loss of provision, it had funded the school for a 1:1 TA, and said C had 1:1 support in most of her lessons. However, it again apologised for any delays caused and said it had always taken Miss B’s concerns seriously.

Analysis

Annual Review and delay in issuing EHCP 2021

54. The Council admits that it failed to follow the statutory guidance and time limits. It has apologised to Miss B for the delay following the annual review in January 2021 and when issuing her with C’s final EHCP. The Council did not issue Miss B with a final EHCP until September 2021. This was a significant delay. This was fault. This delayed Miss B’s right of appeal to the SEND tribunal causing Miss B uncertainty, frustration and delayed her right to appeal to the SEND tribunal should she so wish. I accept the Council has recognised the fault, and has apologised to Miss B. However, I do not consider this fully addresses the injustice Miss B and I have recommended the Council make a token payment in recognition of the injustice caused.

Annual Review and delay in issuing an EHCP in 2022

55. The Council’s note of the annual review meeting held in May 2022 said it informed Miss B of its intention to amend C’s EHCP at the time. The Council should have written to her within four weeks of the annual review confirming whether it had decided to maintain, cease, or amend C’s EHCP. It should also have sent its proposed amendments to Miss B with this notice. It did not do this, and this was fault. The Council should have started the process of amendment without delay. It did not issue Miss B with an amended draft EHCP until August 2022. There has also been delay in issuing Miss B with a final EHCP. These delays have caused Miss B uncertainty, put her to the time and trouble of complaining and has delayed her right of appeal to the SEND tribunal should she wish to do so. It is disappointing to see the same fault has reoccurred and I have made service recommendations to address this.

Failure to Provide Provision

56. The Council has a legal duty to ensure the provision in C’s plan was secured and delivered. I appreciate the Council said C did have some 1:1 support in most lessons. However, it does not say what this support was. If the Council wanted to put in place a different level of provision that it believed was sufficient to meet C’s needs, it should have amended C’s EHCP first. The Council accepts it did not provide C with a 1:1 TA from December 2021. This was fault and caused C to miss her entitled provision. It also caused Miss B distress, frustration and put her to the time and trouble of complaining. I have recommended a remedy to address the injustice caused.

The Council’s record keeping and complaints handling

57. The Council has explained it identified gaps in its records and not all relevant information was recorded as it should have been. It said this was due to a high staff turnover and staff leaving. This is fault. The failure to keep accurate and up to date records creates uncertainty.
58. It also failed to answer some of Miss B’s complaints within the timeframe it had set down in its complaints policy. This was fault and caused Miss B frustration, putting her to the time and trouble of chasing for a response.

Agreed action

59. By 10 February 2023, the Council has agreed to:

• Apologise to Miss B for distress, uncertainty, frustration and putting her to the time and trouble of complaining.
• Pay Miss B £1800 for the loss of provision to use for the benefit of C’s education. (£300 a month taking into account school holidays and that this was an important year for C as it was a transition year).
• Pay Miss B £300 for distress, uncertainty, frustrating her rights of appeal and putting her to the time and trouble of complaining.
• Inform the Ombudsman if it has now issued Miss B with an amended Final EHCP. If it has not done by the deadline, it should state when it will be issued.
• Share this decision with all staff dealing with EHCPs to remind them of the need to follow statutory time limits and of the importance of keeping accurate and contemporaneous records.
• Review its monitoring systems for annual reviews and for issuing final amended final EHCPs to avoid similar fault in the future.

60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. The Council was at fault for failing to provide some provision, failure to adhere to the statutory time limits following the annual reviews and when issuing C’s final EHCPs and for poor record keeping and complaint handling. The Council has agreed to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman