Wirral Metropolitan Borough Council (22 013 106)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 09 Mar 2023

The Ombudsman's final decision:

Summary: Mr X complained the Council delayed completing an Education Health and Care Plan for his son, Y and was poor in communications, resulting in missed provision and distress. We found the Council at fault. We recommended it pay Mr X £300 for time and trouble; £750 for distress; £2700 for missed provision and act to prevent recurrence.

The complaint

  1. Mr X complains the Council delayed completing an Education Health and Care Plan for his son, Y and was poor in communications. He says Y missed out on support during his GSCE year and in transitioning to further education. And they missed the opportunity to consider other education providers.

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What I have and have not investigated

  1. I have investigated the complaint above. This does not include any complaint about a failure to provide suitable education to Y over the same period. This is because the Ombudsman is investigating this under case reference 22007670.

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The Ombudsman’s role and powers

  1. 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)
  2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), 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

  1. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
  2. I also reviewed the Ombudsman’s Guidance on Remedies, published online.
  3. I gave Mr 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

EHCP process

  1. Once a parent asks the council for an EHCP assessment the council has six weeks to say whether it will carry out an assessment.
  2. If the council decides to assess the child it will gather information and then decide if the child needs an EHCP. Professionals should provide their reports to the council within six weeks.
  3. If the council decides the child needs an EHCP it must send a draft to the child’s parent and give them at least 15 days to comment and express a preference for a school.
  4. The council must consult with any relevant school before naming it in the EHCP.
  5. The council should amend the draft plan and issue the final EHCP as quickly as possible. In any event the whole process from the request to assess to the final EHCP should not take longer than 20 weeks.
  6. The council must also tell the parent of their right to appeal to the SEND Tribunal and the time limit for doing so.

What happened

  1. In June 2021 Y was in year 10 at secondary school. His school then excluded him.
  2. On 1 July Mr X asked the Council to assess Y for an EHCP.
  3. On 23 September the Council agreed to assess Y.
  4. In November Mr X complained the Council had failed to provide education to Y since his exclusion and had delayed completing the EHCP. He had chased this and received no response. He requested an update and timeframes.
  5. In December the Council replied.
    • It apologised for the delay getting advice from an Educational Psychologist (“EP”).
    • It experienced significant difficulties due to the high volume of requests and the size of the team.
    • It found it maintained good communication.
  6. Mr X responded to say:
    • The Council was delaying Y’s education pending the EHCP. It had already been six months and Y was now in year 11.
    • He asked what assessments remained outstanding.
    • He said there was a lack of communication from the start. By way of example, from 24 November to date he had made various requests for information and updates by email but received no reply. The Council had also not answered phone calls.
  7. On 22 December 2021 the Council said:
    • Only the EP advice remained outstanding and it would get this as soon as possible.
    • It apologised for the delay.
    • Mr X could go to stage 2 regarding his complaint about communication but it may be better to wait for it to conclude the EHCP first.
  8. On 14 April 2022 the Council issued a draft EHCP.
  9. On 12 October 2022 Mr X complained the Council had still not issued a final EHCP and its communications were poor. He asked to go to stage 2.
  10. On 12 October the Council issued a final EHCP. This detailed how Y should be supported in an education setting. I note it did not provide for any specific therapies or equipment but included opportunities to improve his behaviours and social skills and a clear plan for progression after GCSEs.
  11. Mr X the added to his complaint, the Council:
    • delayed sharing information about schools from September 2021 to January 2022;
    • did not provide information about the support available from one setting until it was too late to consider this;
    • did not answer calls and emails;
    • promised calls that were not made.
  12. Mr X said the final EHCP was now out of date; it did not take into account Y’s current circumstances. He also queried why the EHCP was dated 20 September when it was sent on 12 October.
  13. The Council told Mr X he had a right to appeal the EHCP and so it would not consider this under the complaints process. However it would redate and resend the EHCP to him.
  14. On 28 November 2022 an investigating officer issued a report on Mr X’s complaint. In summary:
    • It upheld the complaint about poor communication. This was due to changes in team, pressures on performance and high caseload.
    • It recommended an apology, time and trouble payment, improved case tracking and caseload review to prevent recurrence.
    • It upheld the complaint of delay in the EHCP process. The decision to assess took 12 instead of 6 weeks. And the Council issued a final EHCP after 56 weeks instead of 20 weeks. This was due to late EP advice, late college advice and the Council’s failure to follow up.
    • It recommended an apology, payment for missed provision, for the service to review timescales and, tracking and monitoring to ensure deadlines were met.
  15. On 30 November the Council provided a stage 2 response to Mr X with reference to the investigator’s report. It accepted the report and offered:
    • An apology
    • £300 for time and trouble
    • £750 for distress
    • £2700 for missed EHCP provision
  16. The Council explained it currently had a SEND Transformation Programme underway to learn from the complaint. It agreed to consider the investigation recommendations as part of that. It would also ensure share the outcome with SEND Managers, responsible for the performance of the team.
  17. The Council said Mr X could accept its offer or go to the Ombudsman.
  18. Mr X then contacted the Ombudsman. He said data provided by the Council in response to an FOI request suggested systemic delay. It took on average 202 days to issue a final plan. (I note that is approximately two months’ delay).
  19. When I spoke to Mr X he explained both he and his partner were put to time and trouble in communications with the Council. They both work and both suffered the stress and strain of having to manage a child with SEN at home full time when he should have been in school. He considered the Council had given payments for missed provision at the lower end of the Ombudsman’s scale and he felt this did not accurately reflect their circumstances.
  20. In comments on a draft decision Mr X said:
    • The Council only recently named Y’s setting in his EHCP;
    • He remains unhappy with the content of the EHCP;
    • The Council offered to meet to discuss the draft EHCP but then failed to follow this up;
    • The Council had not explained its significant delay in the EHCP process;
    • Y would not have suffered so much if the delay in his case was limited to two months.

Findings

  1. The Council accepts its communications were poor. I consider this includes not providing Y’s parents with relevant information about schools in a timely manner. This is fault. Mr and Mrs X were put to time and trouble and suffered distress and uncertainty. This is injustice.
  2. The Council accepts it delayed completing Y’s EHCP. It should have issued a final EHCP by 18 December 2021. But it did not issue this until 12 October 2022. This is fault. The family suffered distress and Y missed EHCP provision over approximately 7 months (term time only). The delay appears to be a systemic issue.
  3. I note the Council has already apologised to Mr X for these faults.
  4. The £300 time and trouble payment offered by the Council is at the upper end of our range for these payments. I recognise both parents have suffered injustice. It is sometimes appropriate to split the amount where two people are involved but we would not usually double it. I do not consider the circumstances of this case warrant a departure from our usual approach. I am therefore satisfied the Council’s offer was a suitable remedy in line with our guidance.
  5. The £750 offered by the Council for distress is at the upper end of what the Ombudsman might consider appropriate in any case. Having considered the circumstances of this case I am satisfied the Council’s offer was a suitable remedy in line with our guidance.
  6. I have reviewed the EHCP provision within the final EHCP to consider what provision Y missed because of the Council’s delay. And I am mindful Y was at a crucial stage of school. I note we only consider a remedy for provision missed during term time. I also note the range in our guidance includes missed education. However, I am not considering that here, as that is addressed in another case. Bearing these points in mind I am satisfied the Council’s offer of £2700 was a suitable remedy in line with our guidance.
  7. I consider the service improvements suggested by the investigating officer are sensible and appropriate to prevent recurrence. However, it remains unclear what if any action the Council will take. I will therefore make recommendations to prevent injustice to others.
  8. I have considered Mr X’s comments on my draft decision however my view of the complaint remains the same.
  9. The law says councils may issue a final plan without naming a setting. Parents then have a right to appeal if they are unhappy. I did not consider any complaint about the final EHCP as it is reasonable for Mr X to have used his right to appeal.
  10. The investigating officer gave reasons for the Council’s delay, including a failure to follow up and progress the EHCP process. I made recommendations for the Council to address this.
  11. I remain of the view the payments offered by the Council provide a satisfactory remedy for the personal injustice suffered.

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Agreed action

  1. To remedy the injustice set out above the Council should carry out the following actions:
  2. Within one month:
    • Pay Mr X £300 for time and trouble;
    • Pay Mr X £750 for distress and uncertainty;
    • Pay Mr X £2700 for missed EHCP provision;
  3. Within three months:
    • Produce an action plan to address delays in progressing EHCPs. This should include timescales for completing those actions.
  4. The Council should provide us with evidence it has complied with the above actions.
  5. The Council has accepted my recommendations.

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Final decision

  1. I find the Council at fault because it delayed completing Y’s EHCP and was poor in its communications. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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