Summary: Ms X complains the Council delayed making a decision on her son’s Education, Health and Care Plan following an annual review causing distress and uncertainty. We found fault as the Council failed to deal with the annual review within the timescales required. We have suggested a suitable remedy and have completed our investigation.

The complaint

1. The complainant whom I shall refer to as Mrs X complains there were failings in the way the Council dealt with her son Y’s Education Health and Care Plan (EHC Plan) from 2020 onwards. Mrs X says this includes:
• The Council delayed amending Y’s EHC Plan following an annual review in January 2020. Mrs X says Y’s EHC Plan remained as a draft until the Council issued a final amended plan in March 2021.
• The Council removing cognitive behavioural therapy (CBT) provision from the EHC Plan without consulting professionals. Mrs X says she has been paying for the private sessions to continue which has cost her £11,000.
• The Council trying to remove her statutory parental right to have 15 days to comment on a proposed amended EHC Plan.
• The Council failing to consider her request to refund the cost of an Occupational Therapy (OT) report she had done in 2018 for the EHC Plan in 2019. And to reimburse her for an update she had done in March 2021, as the Council did not make an OT referral. Mrs X says she also had to pay for an updated educational psychologist assessment in 2021.
• The EHC Plan coordinator failed to attend meetings set up by Children’s Services in 2020 which delayed the Council addressing matters.
• Her concerns about the Council’s Children’s Services involvement with her family. And Children’s Services advising her to use an advocate for the SEND tribunal hearing which she had to pay for.
2. Mrs X says the Council’s actions have impacted on Y’s education and well-being and caused her distress and financial expense.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended). 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.
6. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. 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)
9. 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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What I have and have not investigated

10. I have investigated Mrs X’s complaints about the way the Council dealt with Y’s EHC Plan from January 2020 onwards to March 2021. I have exercised discretion to investigate from January 2020 even though Mrs X’s complaints are late as she has been aware of the issues for over 12 months. This is because I consider there are good reasons to do so due to Mrs X’s personal circumstances and events affecting the family.
11. I have not investigated matters from March 2021 onwards as Mrs X exercised her right of appeal to the SEND Tribunal. And so, the law prevents us for considering Mrs X’s concerns about the EHC Plan from that date.
12. I have not investigated Mrs X’s complaint about Children’s Services as this has been submitted as a separate complaint and currently being considered by the Council through the Statutory Children’s complaints procedure. I am also not investigating Mrs X’s allegation she was advised to use an advocate at a Tribunal hearing. This is because it is being considered as part of Mrs X’s complaint about Children’s Services.

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How I considered this complaint

13. I considered the complaint and documents provided by Mrs X and discussed the complaint with her. I asked the Council to comment on the complaint and provide information.
14. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
15. 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

Education, Health and Care Plan (EHC Plan)

16. 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.
17. Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment, or they disagree with the special education provision, or the school named in the child’s EHC Plan.

Annual Reviews

18. Councils must review EHC Plan’s at least every 12 months.
19. Councils must decide whether to maintain the EHC Plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The Council should issue the final EHC Plan or decide not to amend the EHC Plan at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments. Decisions to amend or cease a plan can be appealed to the Tribunal.

What happened in this case

20. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.

Background

21. Y has a diagnosis of ASD, ADHD, insomnia, and sensory profiling difficulties. His ASD causes anxiety leading to physical outbursts. The Council issued Y with an EHC Plan in June 2019. The EHC Plan named a mainstream school setting for Y with support from a Special Support Assistant (SSA). It noted Y attended private counselling for CBT and the school were to refer him again to Child and Adolescent Mental Health Services (CAMHS) to assess whether he still met the criteria for its involvement.
22. The EHC Plan set out Y’s provision including CBT input in section F to help his behaviour. Section F of an EHC Plan sets out the special educational provision required by the child or young person which the Council is responsible for ensuring it is provided.

Events 2020

23. The Council and school held Y’s first annual review in January 2020. The school noted Y was coping well and making some academic progress. The annual review meeting questioned whether the Council should be funding the CBT, referred to in section F of the EHC Plan, as it was a health provision. This should be listed in section G which states any health provision, if needed.
24. Mrs X complained to the Council in February 2020 Y had not been receiving the CBT provision and she had been paying privately for the sessions since 31 July 2018. The Council upheld Mrs X complaint and agreed to refund her £3,832.50 for sessions from 31 July 2018 to 4 March 2020. The Council said it intended to review the CBT sessions listed in the EHC Plan following the annual review.
25. The Council issued a proposed amended EHC Plan in April 2020. This proposed removing the CAMHS referral and CBT from section F in line with the annual review discussions.
26. The Council issued a further proposed amended plan in May 2020 which removed the CAMHS referral and CBT. Officers explained to Mrs X the Council considered it inappropriate for it to be funding a health provision if needed by Y. The Council asked Mrs X for consent to refer Y to CAMHS to see whether he still needed CBT and if so, whether it would fund the provision. Mrs X was unhappy with the Council’s proposed amendments and did not agree to CBT being removed.
27. The Council contacted CAMHS about Y and a possible referral. CAMHS said Y had been receiving private therapeutic work including CBT and it was crucial for this to continue with the provider. The Council found it unclear if CAMHS would fund the provision. CAMHS said its current involvement was consultation to the multi-agency process around the family and focusing on behavioural approaches for Y Mrs X could deliver.
28. Mrs X told the Council of Y’s recent diagnosis of Pathological Demand Avoidance linked to his ASD and for it to be included in the final plan. Mrs X asked the Council to place CBT back in the EHC Plan as Y continued to receive it privately and it was having a positive effect. The Council chased CAMHS to confirm its position on CBT so it could finalise the EHC Plan.
29. The Council and school held an annual review on 30 Nov 2020. In January 2021 the Council received reports from an OT and CAHMS. The OT report was dated 2018 so the Council asked for an update. The CAMHS report noted issues with Y’s behaviour at home and it was providing sessions for Mrs X to help her with Y. The Council added CAMHS recommendations to the draft EHC Plan.
30. The school asked for extra SSA hours at the annual review as Y’s anxiety increased following a family bereavement and difficulties due to the Covid-19 pandemic. This resulted in Y having more physical outbursts at home causing issues for the family. The Council liaised with school during February and March 2021 to clarify and confirm what hours were needed. The school considered it could still meet Y’s needs.
31. Mrs X complained about delay in early March 2021 and asked the Council to issue the final amended plan. The Council explained the delay was due to the late submission of the CAMHS report and clarifying the request for increased support hours at school. The Council said it planned to hold an early annual review on 25 March 2021, so if Mrs X agreed it could finalise the plan with or without the increase in hours. These could then be added at the early annual review. But for the Council to do this and issue the final plan Mrs X needed to agree to waiver the 15-day parental consultation period to comment on proposed amendments to the EHC Plan.
32. Mrs X refused to waiver the consultation time and complained the Council was trying to remove her statutory rights. The Council said it was not trying to do so but rather explaining options. It advised that if Mrs X wanted the Council to finalise the EHC Plan immediately, she needed to agree to not wanting the consultation response time and to the proposed amendments. An early annual review later in March 2021 could then consider the reports received.
33. The Council chased the OT for an up-to-date report and Y’s school for information about the request for increased support hours. The school decided to cancel the early annual review.
34. The Council issued a second version of the proposed amended plan in March 2021. Mrs X asked the Council for an extension of time to respond until 26 March 2021 to allow for the private OT report she commissioned to be considered. The Council said it intended to finalise the EHC Plan on 26 March 2021 and if it received the OT report within that time it could be considered. The Council later told Mrs X that considering the OT report, or any other reports would delay finalising the plan. So, recommended it considered any further reports as part of an early annual review which could be arranged once plan was finalised on 26 March 2021.
35. An officer finalised the plan on 26 March 2021 and sent it to a business support officer to issue as the Council had not received any comments from Mrs X. Mrs X sent comments after the officer had taken this action and finished work for the day. So, the final plan was issued on Monday 29 March 2021 without any recommended amendments. The final plan recommended Y attend a council-maintained school.
36. Mrs X appealed to the SEND Tribunal in April 2021 as she disagreed with the named placement for Y. And the Council failed to include her private educational psychology and OT reports when completing the final plan in March 2021. Mrs X included the reports in her appeal documents.
37. Y’s behaviour deteriorated further at home and, due to difficulties this caused, the Council looked at full-time residential school settings for him. Y’s school reported it could no longer meet his needs and was no longer a suitable setting to be named in the EHC Plan. The Council started consulting with specialist residential schools in May 2022.

Events 2022

38. In March 2022 the SEND Tribunal issued a decision reached by consent as the Council and Mrs X agreed Y should go to an ASD specialist residential setting. Y became subject to a Child Protection Plan and considered to have Looked After Child status due to the placement being full time.
39. Y started at a residential setting in June 2022. Mrs X confirmed she was happy with the school placement.

The Council’s response to Mrs X’s complaints

Delays issuing amended EHC Plan following annual reviews and removing CBT from the EHC Plan

40. The Council accepts it delayed issuing Y’s EHC Plan and has apologised to Mrs X. But says it was not due to intentional inaction, rather the SEND team was happy to continue working with her to reflect a plan that was more agreeable to her. So, it tried to work through the issues of CBT as Mrs X did not want the Council to remove it from section F of the EHC Plan into section G. And there were delays in receiving reports from CAMHS and the OT report being out of date. The Council made referrals for both and explained the delays to Mrs X. Mrs X was receiving support from a social worker in Children’s Services who was aware of the action being taken.
41. The Council says there was also a request at the annual review in November 2020 to increase Y’s SSA hours. But there was some confusion to whom made the request and how the extra hours would be allocated. Y’s school delayed sending through evidence to support the request which added to the delays in finalising the plan.

Removing CBT from EHC Plan

42. Mrs X says she has been paying privately for CBT costing £11,000 since the Council moved CBT from section F to section G. The Council says CBT provision was provided by health as it was a CAMHS recommendation. A former EHCP officer mistakenly placed CBT in section F instead of G in 2019. The Council says it told Mrs X, agreed to leave it in section F and fund it until the next annual review (January 2020) and move it from section F to section G.
43. The Council has now clarified it was not aware of the error until Mrs X’s complaint in February 2020. It also did not tell Mrs X about the error, just that it was removing it from the Council’s provision in the EHC Plan as it should be provided by health services if needed.
44. While CAMHS said Y should continue with the CBT as an individual therapy it did not recommend or agree to fund a specific psychological intervention outside of CAMHS. But to resolve this for Mrs Y the Council is willing to reimburse any costs for CBT for the time this was in Y’s EHCP. This will be subject to receiving invoices and minus any receipts already paid. So, it will reimburse Mrs X’s costs from 4 March 2020 up to 29 March 2021 when the Council issued final EHC Plan and Mrs X could appeal the decision to remove it.

My assessment

45. Y’s annual review took place in January 2020 so the Council should have issued a decision on whether it intended to amend the EHC plan or not 4 weeks later. The Council issued a proposed amended plan in April 2020 and again in May 2020 which was outside the proposed timescales laid down in the Code. It should then have issued the final amended plan by July 2020 being 8 weeks after it informed Mrs X it intended to amend the EHC Plan. But did not do so until March 2021. The delay is fault by the Council.
46. Mrs X’s main concern was about the proposal to removal CBT for Y which she considered was having a positive benefit. Mrs X continued to pay for the CBT after the Council removed it from the proposed amended EHC plan. If the Council issued the final amended plan within the timescales laid down, then Mrs X would have been able to appeal much sooner to the SEND Tribunal about its removal and any other concerns she had. But the Council’s delay meant she could not do so. The delay has caused an injustice to Mrs X due to distress and uncertainty about the proposed provision and being unable to exercise her appeal rights any sooner. Mrs X has also continued to pay for the CBT which has impacted on her financially.
47. The Council should also have been clearer with Mrs X about its error in placing CBT in section F and explaining the situation to her. This has added to Mrs X’s distress and uncertainty about the CBT provision. I consider the Council should apologise to Mrs X. It should also make a financial payment of £350 to her in recognition of the distress and uncertainty caused by the delay in issuing a final amended plan following an annual review. The payment is also in recognition of the distress and uncertainty caused by the Council’s handing of the proposal to remove the CBT provision. This is in addition to its proposal to reimburse the payments Mrs X has made for CBT up to 29 March 2021. I consider the Council’s offer to reimburse Mrs X’s costs is suitable action for it to take.
48. However, Mrs X has been put to considerable expense in paying for the CBT which she says amounts to £11,000. So, we would recommend the Council also pays Mrs X any interest charges or other expenses she may have incurred in making payments subject to evidence of those costs.
49. After 29 March 2021 Mrs X could exercise her right of appeal against the Council’s decision to remove the CBT. If the appeal hearing had gone ahead, it would have been for SEND Tribunal to decide if the Council had taken the correct action about removing CBT and award costs if considered necessary.

Removing her right to comment on the draft EHC Plan

50. The Council confirmed it was not attempting to bypass the statutory process by asking Mrs X if it could finalise the EHC Plan before she completed the 15-day parental response time. The officer involved was aware of the delays and Mrs X wanting the Council to immediately finalise the EHC Plan. The officer explained to Mrs X the Council needed to give her 15 days to consider the proposed amended plan. If Mrs X chose to waive the period, it could finalise the EHC Plan and issue it as she requested. But the officer told Mrs X if she did not want to waive her right then the Council would finalise the EHC Plan after 15 working days. The Council confirms it issued the EHC Plan at the end of March 2021 and so respected Mrs X’s rights to comment.

My Assessment

51. The Council say its actions were to help finalise the final EHC Plan as Mrs X requested. But it should not have been necessary for the Council to ask Mrs X to waive her right to comment as the delay in issuing the final EHC Plan should not have occurred. However, I consider there was limited injustice caused to Mrs X as she was able to comment within the 15-day period.

Mrs Y paying for an education psychology report and OT report

52. The Council says Mrs X chose to have a private OT assessment in 2018. The report was referred to in a previous EHC Plan appeal Mrs X made in 2018 so fell outside the scope of Mrs X’s recent complaint. It says Mrs X then chose to arrange an updated OT assessment in 2021 so it would not reimburse her for this.
53. However, in March 2021 due to Mrs X’s request for the Council to incorporate recommendations from her private OT report from 2018 the Council made a re- referral to the NHS OT service in March 2021. This fed into the SEND Tribunal appeal and report dated August 2021.

My assessment

54. Mrs X arranged for an OT report in 2018 which was considered at in a previous SEND Tribunal hearing. So, there is no requirement for the Council to reimburse her as Mrs X could have requested costs during the tribunal hearing. As the OT report was considered as part of a SEND tribunal hearing Mrs X’s request for costs falls outside any issues we can consider now.
55. The documents show the Council responded to Mrs X’s request for an OT assessment in March 2021 as it sought a re-referral from NHS OT. So, it will have been Mrs X’s choice to arrange a private report and bear the costs of doing so.

ECHP coordinator failed to attend meetings

56. The Council comments the EHCP Coordinator only declined and sent apologies for one known meeting. The Council says the EHC coordinators cannot always attend every meeting called by social care and vice versa. But will do so whenever reasonably practical.

My Assessment

57. Mrs X refers to meetings taking place in 2020. But has failed to provide sufficient information about each meeting and impact caused by the EHCP coordinator failing to attend. Because of this and the passage of time since the meetings I am unable to reach any robust findings on this issue.

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Agreed action

58. To remedy the injustice caused to Mrs X I have identified in paragraphs 46 and 47 the Council will:
• Apologise to Mrs X and pay her £350 for the distress and uncertainty caused by the delay in issuing a final amended EHC Plan following an annual review, being unable to exercise her appeal rights any sooner and its handling of the proposal to remove CBT from Y’s EHC Plan.
• Refund Mrs X’s costs of CBT sessions for Y from 4 March 2020 to 29 March 2021 subject to invoices, and minus receipts already paid.
• Refund any interest charges or other costs incurred by Mrs X in paying for the CBT sessions from 4 March 2020 to 29 March 2021 subject to evidence of those charges.
59. The Council should provide us with evidence it has complied with the above actions within one month of the date of my final decision.

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Final decision

60. I have found fault in the time the Council took to issue a final amended EHC Plan and handled a proposal to remove CBT from the plan.

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Investigator's decision on behalf of the Ombudsman