Summary: Mrs B complained the Council failed to adhere to statutory timescales following its review of her daughters Education, Health, and Care Plan. The Council agreed it was at fault for causing delays and it failed to respond to her communication in a timely manner. We found the Council’s apology was not enough. It should also make payment to Mrs B to acknowledge the distress and uncertainty its faults caused, and the unnecessary time and trouble she had to bring her concerns to its attention.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council caused delays and failed to adhere to the statutory process for reviewing her daughter’s Education, Health and Care Plan (EHC Plan), including failing to respond to her reassessment request. She also said it made some amendments to the plan and failed to review her personal budget in the process.
2. As a result, Mrs B said her daughter had a loss of educational provision. She also said she experienced distress and had time and trouble to bring her concerns to get the Council to address her concerns.

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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. 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)
5. 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

6. As part of my investigation, I have:
• considered Mrs B’s complaint and the Council’s responses;
• discussed the complaint with Mrs B and considered the information she provided; and
• considered the law and guidance relevant to the complaint.
7. Mrs B 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

Relevant law and guidance

8. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. This includes:
• within two weeks of a review meeting a council must prepare and circulate to all invitees a written record setting the recommendations on amendments to the EHC plan and the information and advice obtained about the child; and
• within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20 Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
9. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
10. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
11. When a council receives a reassessment request of a child with and EHC Plan, it must notify the child’s parent whether or not it is necessary to reassess within 15 days of receiving the request. (Section 25 (1) SEND Regulations 2014)

Personal budgets

12. A child’s parent or young person has a right to request a personal budget. Where a council has agreed to provide a personal budget, or there is already one in place, it should give an indication of the level of funding that is likely to be required to provide the provision specified. The final allocation of funding must be sufficient to secure the agreed provision specified in the EHC Plan and must set out as part of that provision. (SEN Code paragraph 9.102)
13. Where there is disagreement relating to the special educational provision to be secured through a personal budget the child’s parent can appeal to the SEND tribunal. (SEN Code paragraph 9.108)

What happened

14. Mrs B has a daughter (Child X), who was been diagnosed with attention deficit hyperactivity disorder (ADHD), coordination and movement difficulties, and mental health needs. She has an EHC Plan which sets out her SEN for her to receive an education. She has received education otherwise than at school (EOTAS) for two years.
15. In 2021 Mrs B complained about the Council’s handling of child X’s EHC Plan process. The Council agreed it had been at fault and had caused delays, and a remedy was provided.
16. In Summer 2022, the Council arranged for an annual review of child X’s EHC Plan. It held a meeting with Mrs B to get her views.
17. Following the review, Mrs B told the Council it had failed to follow the statutory timescales for child X’s EHC Plan annual review process. This included failing to:
• share the annual review documents within two weeks of the meeting; and
• issue its decision whether to cease, maintain or make amendments to child X’s EHC Plan within 4 weeks.
18. Mrs B said the Council did not respond to her concerns, or told her it was still working on the EHC Plan.
19. In Autumn 2022 Mrs B complained to the Council about its failure to meet the statutory timescales for the EHC Plan process. She also said the Council’s officers had failed to respond within its published response times to her communication.
20. In September 2022 the Council decided to make amendments to child X EHC Plan. It issued a draft EHC Plan for child X and shared this with Mrs B.
21. In response to Mrs B’s complaint the Council explained it had seen a significant increase in EHC Plan requests over recent years. As a result, its EHC Plan team had experienced a significant increase in casework, and it has now recruited a new member of staff and made changes to its processes. It accepted it had failed to respond to her communication in a timely manner and to meet the statutory timescales following the annual review to:
• share the annual review documents within two weeks. It arranged for its officer to send these to Mrs B;
• issue its decision whether to cease, maintain or amend child X’s EHC Plan within four weeks; and
• issue its draft amended EHC Plan for child X. It said it had since shared an amendment notice with proposed changes to the EHC Plan.
22. Mrs B was not satisfied with the Council’s response and continued to raise her concerns. These included:
• it had failed to correctly issue the draft EHC Plan until two weeks after its complaints response;
• it continued to fail to respond properly to her communication;
• it had made alterations to child X’s EHC Plan, but it failed to discuss these in the annual review, and it did not properly consider alterations to the personal budget as part of the annual review process; and
• it had failed to address her concerns child X was not receiving a full-time education and her recent request for a reassessment of her needs.
23. The Council told Mrs B it did not find the formal complaints process was the appropriate was to progress her concerns. It said this was because she could request a meeting to raise concerns about its draft EHC Plan with its team within 15 days. This was a part of the process which would give her the opportunity to raise concerns about the issues she had raised and the remedies she felt were justified.
24. Mrs B asked the Ombudsman to consider her complaint. She said she received child X’s final EHC plan in November 2022.

Analysis and findings

Delays in the EHC Plan process and amendments

25. The purpose of the annual review process was to review whether child X’s EHC Plan was suitable to meet the outcomes in the plan, or whether to cease or amend the plan.
26. I cannot consider the outcome of such a decision, as Mrs B can appeal such disagreements to the SEND tribunal. However, I can consider the process the Council followed to reach its views.
27. Based on the evidence available, the Council held its annual review and received Mrs B and some other professionals views about child X’s needs and achievements towards the outcomes in her EHC Plan.
28. I understand it was not clear to Mrs B the Council would reduce and make amendments to the plan, as details of this was not discussed in the annual review, and the Council failed to share the documents and its amendment notice within the required timescales.
29. The Council agreed it was at fault for failing to adhere to the statutory process and timescales following its annual review of child X’s EHC Plan. This included its failure to share documents, the amendment notices and draft EHC Plan within the required timescales.
30. I found this caused Mrs B distress due to uncertainty and frustrations this caused, and she had time and trouble to get the Council to address her concerns. She also had further loss of trust in the Council as she had experienced similar failings by the Council in child X’s previous annual review.
31. However, my understanding is child X’s provision did not change until after the final EHC Plan was issued in November 2022, and it was then the provision was reduced. Child X therefore did not experience a loss of provision as a result of the Council’s delays. If Mrs B believes the Council failed to provide the provision in child X’s previous or new EHC Plan, should raise a new complaint with the Council setting out what has not been provided.

Communication

32. Mrs B complained about the Council’s failure to respond to her communication within its outlined timescales. I acknowledge the pressure the Council had, and continues to experience, due to the increase in EHC Plan requests it has received.
33. The Council agreed its staff had failed to respond as it would expect and apologised. This was fault.
34. I found the Council fault caused Mrs B some additional unnecessary distress and frustration as she wanted the Council to progress child X’s annual review and issue her final amended EHC Plan.

Personal Budget

35. Mrs D said the personal budget the Council had set out in child X’s final EHC Plan was not enough to meet the needs to secure the special educational needs provision. She said she had raised concerns about increased costs in the annual review.
36. I cannot consider this part of Mrs B’s complaint. This is because this was not part of her initial complaint to the Council, and the personal budget was first confirmed when it issued child X’s final EHC Plan in November 2022. This was after the Council’s final complaint response.
37. Also, her concerns relate to ensuring enough funding is provided to secure provision set out in the Council’s final EHC Plan for child X. Mrs B may therefore wish to raise her concerns as part of an appeal to the tribunal against the reduction in child X’s SEN provision.

Re-assessment request

38. Mrs B asked the Council to reassess child X’s needs in October 2022. The evidence shows the Council did not respond to her request within 15 days as required by the SEND Regulations. However, following a review by its panel in November 2022, it did notify Mrs B of its refusal to reassess child X.
39. I found the Council was at fault for causing a delay to decide whether to reassess child X or not, and share its decision with Mrs B.
40. Mrs B has the right to appeal the Council’s decision to the SEND tribunal. The injustice this caused was therefore only the limited distress its delay caused Mrs B.

Complaints handling

41. The Council responded to Mrs B’s complaint. It accepted fault in how it had handled child X’s annual review and EHC Plan process, and apologised.
42. When Mrs B raised further complaints about the EHC Plan process, her reassessment request and the personal budget, the Council said it was not appropriate to address these through the formal complaint process as the statutory EHC Plan process was ongoing.
43. I acknowledge the Council’s view Mrs B’s concerns about provision in the EHC Plan and the proposed personal budget should be considered through the statutory process. However, her concerns about the Council’s failure to respond to her re-assessment request should have been responded to through its complaints process. This was fault as this request was separate to the EHC Plan process.
44. I understand the Council has since decided not to reassess child X and shared its decision which Mrs B, which she can appeal to Tribunal. The relatively short delay therefore only caused Mrs B some limited distress.

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Agreed action

45. To remedy the injustice the Council caused to Mrs B, the Council should, within one month of the final decision:
1. apologise in writing to Mrs B, and pay her £500 to acknowledge the distress and uncertainty the Council’s faults caused, including the unnecessary time and trouble she had to bring her concerns to its attention.
46. Within three months of the final decision the Council should also:
1.  
2. remind its officers to respond to complaints about delays in notifying parents or young people about its decisions, regardless of whether there are separate ongoing EHC Plan processes in place; and
3. remind relevant staff to ensure it adheres to the statutory EHC Plan process timescales and responds to communication from parents and young people without delay.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation with a finding of fault by the Council which caused Mrs B an injustice.

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Investigator's decision on behalf of the Ombudsman