Summary: Mrs X complains the Council failed to issue an amended EHC plan in the appropriate timescales, there was poor communication from the Council and several meetings were cancelled at short notice. We found there was avoidable delay in the EHC process and issues were caused by poor record keeping and handovers between staff. We recommended a remedy to Mr and Mrs X. We found no fault in the part-time education provision made available.

The complaint

1. Mrs X complains there was a delay in issuing her son’s EHC plan following a review in September 2021. She also complains communication was poor overall and several meetings were cancelled at short notice.
2. Mrs X complains that her son was on a part-time timetable for too long and the delays and lack of education affected his wellbeing.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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 considered Mrs X’s complaint and the information she provided. I asked the Council for information and considered its response to the complaint.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

Background

8. Mrs X complains there was delay issuing a revised EHC plan for her son (referred to as Y in this statement). She also complained of poor communication and that Y was on a part-time timetable too long.
9. Our investigation focusses on the process followed by the Council following a review of Y’s EHC plan in September 2021. Although the events from 2021 are our focus, we have noted correspondence indicating the school did not receive an updated EHC plan from the review carried out in November 2020. So, at the outset, Y’s EHC appears to have been out of date.

EHC Plan timescales

10. An annual review of Y’s EHCP was held on 15 September 2021. At the meeting Mr and Mrs X expressed concern that Y’s behaviour meant he was being sent home. They noted Y’s EHCP set out 30 hours of provision but, as Y was not in school all day, it was suggested that a home tutor be considered for the afternoons. Mr and Mrs X asked the Council to consider special schools, because mainstream environments were not tailored to Y’s needs. Mr and Mrs X also commented the school did not have up to date information about Y’s needs to help resolve meltdowns before things escalated.
11. The Council consulted two schools in September 2021 and one in October 2021. All three considered they could not meet Y’s needs.
12. A draft EHC plan was issued on 11 November 2021. The Council received comments on the draft EHC plan from the school on 26 November.
13. A further school was consulted in mid-December. The Council did not receive a reply, although it later told Mrs X the school was oversubscribed. Another school consulted in February 2022 stated it could not meet Y’s needs.
14. On 30 March the Council’s Social Emotional and Mental Health (SEMH) panel agreed that Y should have a placement at a special school. However, there were no places available at that time, and the Council considered that placing Y in a school that was full would prejudice the education of others.
15. At the end of March 2022 the Council carried out more extensive consultations with 14 schools to find Y a placement.
16. In April, the Council cancelled two meetings on the day they were going ahead, at short notice. The Council told us this had been for unforeseen circumstances, caused by illness of the staff involved.
17. On 26 May 2022 the Council issued a final EHCP, naming Y’s current school. It did so to provide Mr and Mrs X with the right of appeal given there had been delay and it could not provide a special school placement at that time.
18. When the Council issued the final EHCP it did not take account of comments the school provided in November 2021. The Council issued further amended versions of the EHCP on 31 May and 9 June and 29 June. These versions reflected the school’s comments and new information the Council received.
19. All but one of the schools consulted in March declined, stating, for various reasons, they could not meet Y’s needs. One school, which was also Mrs X’s preference, replied on 8 July 2022, offering a place. I have referred to this as School A. The reply came two weeks prior to the summer holidays.
20. The Council agreed at a funding panel that the School A placement should be provided in August 2022. On 25 August 2022 the Council issued a revised final EHCP naming School A. Y started at School A on 1 September 2022.
21. The Council recognised that the EHC plan was significantly delayed and it apologised to Mr and Mrs X when dealing with their complaint. The Council identified that organisational and staff changes partly caused the delays, because Y’s case was passed between staff. Poor record keeping and miscommunication was a contributory factor. However, the Council considered the shortage of specialist places in the county was the main problem. Although the lack of communication did not stop Y receiving a school place, it acknowledged that it may have added to distress to Y and Mr and Mrs X. It offered them £55 to recognise the distress caused.

Y’s Education between September 2021 and September 2022

22. The Council told us it had no record of discussions about what level of education provision was suitable for Y while he was not attending school full-time. However, the Council told us, Y received around 2.5 hrs of tuition in school each day, on average this was around 12-14 hours per week.
23. Following the September 2021 EHC plan review meeting, the Council made efforts to find a tutor to work with Y in the afternoons. A tutor was found in November 2021. During the discussions with tutoring companies they agreed with Mrs X that 20 hours of additional provision would be too much for Y to deal with. They agreed that 10 hours of tutoring was appropriate to Y’s needs.
24. The Council also referred to an Autism Consultant for their advice on strategies to manage Y’s autism while he was on the part -time timetable.
25. The part-time attendance at school and tutoring at home continued until Y received a place at School A.

Was there fault by the Council

26. There was significant delay in the review of Y’s EHC plan. This was fault by the Council. While I acknowledge, in part, this was connected with finding Y a suitable placement, the Council failed to meet the statutory timescales for using an EHC. This was at a time when Y was unable to attend school and his difficulties were increasing.
27. There was also a failure to communicate appropriately with Mr and Mrs X which the Council acknowledged in its complaint response. The Council stated changes in staffing and poor record keeping were contributory factors. This too was fault.
28. While I found fault in the EHC process, I found the Council had taken steps to make sure Y had a suitable education while he was not able to attend school full-time. Although Y was on a part-time timetable for some time, there seems evidence he could not have attended school full-time for this period. The Council arranged a tutor to help to support Y at home and it consulted a specialist ASD consultant for advice. I found the Council took adequate actions to ensure Y had an education during this period.
29. I acknowledge the Council offered Mr and Mrs X a payment of £55 to reflect the distress that the identified failings caused. Our guidance on remedy recommends a higher sum in these circumstances. As a result, I have recommended the Council makes a payment of £200 to reflect that its actions caused delay and this led to distress to Mr and Mrs X and to Y.

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Agreed actions

30. Within four weeks of my final decision:
31. The Council should remind officers of the need to maintain adequate records in EHC plan cases. This is particularly important to ensure continuity should there be staff turnover or absences and cases are passed to other officers.
32. The Council should pay Mr and Mrs X £200 to reflect the distress caused by the delays in completing the EHC process and in the poor communication that occurred.
33. The Council should provide us with evidence it has complied with the above actions with four weeks of our final decision being issued.

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Final decision

34. There was fault by the Council.

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Investigator's decision on behalf of the Ombudsman