Summary: Ms X complained the Council delayed reviewing her son’s Education Health and Care Plan and did not handle her complaint properly causing distress. We found the Council at fault. We recommended it apologise to Ms X, pays £200 for time and trouble, pays £300 for distress and loss of opportunity and, acts to prevent further injustice to others.

The complaint

1. Ms X complains the Council has delayed completing a review of her son’s Education Health and Care plan (“EHCP”) since November 2021 and it has not taken actions as agreed during the complaints process. Ms X says she has suffered distress and been put to time and trouble. Further her son, Y, has missed out on additional support and been negatively impacted.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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

5. I spoke to Ms X and I reviewed documents provided by Ms X and the Council.
6. I gave Ms X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

SEN Code of Practice; Annual Reviews

7. Councils must review an EHCP at least every 12 months.
8. Within 2 weeks of the meeting the school must provide a report setting out any recommended amendments to the EHCP.
9. Within four weeks of the review meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
10. If it needs to amend the plan, the council should start the process of amendment without delay.
11. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views and make representations on the content.
12. When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible. In any event it should do so within 8 weeks of issuing the amendment notice.
13. Where the council does not agree the suggested changes it may still issue the final EHCP. In either case the council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

What happened

14. Y has Autism Spectrum Condition and Anxiety Disorder. He held an EHCP dated February 2021. This identified strategies to support his education and provided for speech and language therapy.
15. An annual review meeting took place on 10 November 2021.
16. Ms X says professionals suggested changes to Y’s EHCP including 1:1 support and Occupational Therapy.
17. The school sent the annual review paperwork to the Council on 26 November.
18. Ms X chased the Council to no avail.
19. The Council says it decided to amend Y’s EHCP on 17 April 2022. However, it did not notify Ms X or send a draft EHCP.
20. Ms X complained about the Council’s delay on 29 April.
21. In its 31 May reply the Council explained a large number of staff left in October 2021 impacting timescales. It allocated a new worker to Y’s case in March but they left and there was no capacity to hand over the case to another person. It upheld her complaint, apologised, and agreed to take action by 28 June. It also said it was recruiting staff to fill gaps in its service.
22. Ms X complained again on 19 July as the Council had still not taken any action.
23. On 21 July the Council apologised for this oversight and said it would issue a draft EHCP by 5 August 2022. The Council separately confirmed it would provide a further complaint response by 31 August.
24. Ms X chased the Council on 8 September as again no action had been taken.
25. The Council responded on 8 September apologising for its delay, due to leave. It acknowledged it had not taken action as agreed at stage 1 due to an oversight. However, it had already apologised and agreed to act in its response of 21 July. She could contact the Ombudsman.
26. In response to enquiries the Council said it carried out a further annual review on 11 November 2022 and issued a decision to amend on 5 December 2022. It was currently preparing a draft EHCP.
27. The Council said delays occurred due to changes in key workers, changes in family practitioner leads in the district and, a high volume of cases due to its transformation. There was also an increase in workload for key workers due to other key workers leaving as a result of the transformation.
28. I asked the Council for details of any other annual reviews held in its area in the last 12 months to see if delays were affecting others. However, the Council did not provide this information.

Findings

29. The Council did not complete its review of Y’s EHCP following the November 2021 review meeting within the statutory timescales or at all. This is fault.
30. Ms X has spent time chasing the Council. She has missed the opportunity for any changes to Y’s EHCP over the last year. And she has lost her right to appeal if she was unhappy with any final EHCP. This is injustice.
31. As the Council is due to issue a final EHCP shortly, based on the latest annual review, I do not consider it would assist for it to also issue one based on the previous review. However, once the Council has issued a final EHCP, if Ms X considers Y should have got any additional provision sooner, she may ask the Council for a further remedy. She may also return to the Ombudsman if needed.
32. The Council upheld Ms X’s complaint and agreed to take action. However, it then failed to take the action promised. This is fault. Ms X was put to avoidable time and trouble in the complaints process. This is injustice.
33. When Ms X escalated her complaint the Council again agreed to act but failed to do so. This is fault. Ms X was put to avoidable time and trouble in the complaints process. This is injustice. The Council says this was an oversight.
34. At stage 2, the Council referred to promised action but did not check whether this had been taken. This is fault. Ms X was put to avoidable time and trouble in the complaints process and in having to complain to the Ombudsman. This is injustice.
35. The Council has explained its delays and its failure to act on the complaint was due to lack of staff. I acknowledge it is recruiting to address this. However, I am concerned others may be affected by delay.

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Agreed action

36. To remedy the injustice above I recommend the Council take the following actions:
37. Within one month:
• Provide an apology to Ms X;
• Pay Ms X £200 for time and trouble;
• Pay Ms X £300 for distress and loss of opportunity;
38. Within three months:
• Ensure the Council has a process in place to check it has completed agreed actions in response to a complaint;
• Identify any other EHCP reviews subject to delay since October 2021, consider how it will complete those reviews or any further review without further delay and, share its plan with the Ombudsman.
39. The Council should provide us with evidence it has complied with the above actions.
40. The Council has accepted my recommendations.

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Final decision

41. I find the Council at fault because it delayed reviewing Y’s Education Health and Care Plan and did not handle Ms X’s complaint properly. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman