Summary: The complainant, Miss X, complained that the Council has failed to amend her son’s Education, Health and Care Plan after the 2022 review; failed to update her after a previous 2021 review; failed to respond to her complaint and other correspondence and delayed providing a personal transport budget. We find the Council at fault. This caused her and her son significant stress. To address the injustice caused by fault, we recommend several remedies.

The complaint

1. The complainant, Miss X, complains that the Council has:
• Failed to amend her son’s Education, Health and Care (EHC) plan after the 2022 annual review.
• Failed to update her after a previous 2021 annual review.
• Delayed providing a personal transport budget.
• Failed to respond to her complaint and other correspondence.
2. Miss X said this has caused her significant stress and she has spent time chasing the Council for responses.

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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. 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)
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.
6. 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

7. I spoke with Miss X about her complaint. I considered all of the information provided by Miss X and the Council.
8. Miss X and the Council had an opportunity to comment on my revised draft decision. I considered their comments before making my final decision.

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What I found

Education, Health and Care plans

9. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. This can include support needed in school.
10. The Special Educational Needs and Disability (SEND) Code of Practice is the statutory guidance which states:
• councils must review EHC Plans at least every year. The review considers if the current EHC Plan is appropriate and whether any changes are needed, including any changes to the education placement.
• within four weeks of the review meeting, a council must decide whether to keep, cease or amend the EHC Plan and must notify the parent. If amendments are needed, the council must start the amendment process without delay.
• the council must send the current EHC Plan and a notice setting out proposed amendments and give the parent at least 15 calendar days to comment. It must issue an amended plan as quickly as possible and within eight weeks of the original amendment notice.
11. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

The Council’s complaints policy

12. The policy states the Council will acknowledge complaints within three working days and will provide a response within 20 working days at stage one. Where this is not possible, it will inform complainants at the earliest opportunity.
13. If complainants remain dissatisfied, they can have their complaint investigated by writing to the corporate director of the service involved. The timescale for a formal response is 20 working days. For more complex cases it will be a maximum of 65 working days.

The Council’s personal transport budget policy

14. A personal transport budget (PTB) is available to children with an EHC plan and who have been assessed as eligible to receive home to school transport. The PTB is granted at the discretion of the Council and is not automatically given upon request.
15. If it is not cost effective for the Council to provide someone with a PTB, it will not be granted even if it is someone’s preferred method of receiving transport assistance. Students that are eligible for free school transport but for whom a PTB is not cost effective will be allocated to the most appropriate alternative form of transport assistance instead.

What did happen?

16. This section sets out the key events in this case and is not intended to be a detailed chronology.
17. Miss X’s son, Mr Z has an EHC plan. An annual review was held in March 2021. It stated the EHC plan was to be maintained. It noted some suggested new outcomes such as role play workshops and sensory circuit.
18. Miss X submitted a PTB application in May 2022. She received a response which said parents should expect to wait up to 6 weeks from the end of June to receive the outcome.
19. An annual review was held in August 2022 which stated the EHC plan was to be maintained. It also said the placement remained appropriate and noted some suggested new outcomes such as occupational therapy (OT) and support embedding OT strategies.
20. Miss X contacted the Council in October 2022 to ask when it would amend the EHC plan. She said she had sent in numerous emails and made several phone calls but said she had received no responses. She also said she had heard nothing back from the March 2021 review and submitted a formal complaint. She said the current EHC plan did not reflect Mr Z’s needs and said her request for a PTB had been denied.
21. Miss X told the Council in November 2022 that she would complain to us if she did not receive a response.
22. In the same month, the Council told Miss X it had refused the PTB at the time as a cheaper vehicle was available. But it said this space was no longer available and it had now reassessed the PTB based on the new transport which it said had been approved. This was backdated to September 2022.
23. The Council sent Miss X its decision to amend the EHC plan letter in December 2022, followed by the draft plan.
24. Miss X contacted the Council twice in December 2022 to state she was not happy with the draft plan and asked to meet with the Council to discuss this.
25. The Council finalised the EHC plan in April 2023. It stated Mr Z would receive three OT sessions for up to one hour spread out throughout the academic year, sensory circuit for 30 minutes weekly and social skills for 30 minutes weekly.

Analysis

26. We would not usually investigate events that occurred more than 12 months before a person complains to us unless we decide there are good reasons. I have exercised discretion to investigate the period from March 2021 to April 2023 when the final plan was issued. This is because I do not think it was reasonable to expect Mrs X to have complained to us sooner due to her personal circumstances at the time.
27. The Council told us it did not process the 2021 annual review due to high workloads. This is fault. The guidance states within four weeks of the review meeting a council must decide whether to keep, cease or amend the EHC Plan and must notify the parent. But the Council said it had reviewed the paperwork and stated that as there were no significant amendments requested, it would have maintained the EHC plan. Therefore, I do not consider this fault to have caused an injustice to Mr Z as the plan would have remained the same. But had this fault not occurred, Miss X could have had the opportunity to exercise her appeal rights if she disagreed with the contents of the plan.
28. The Council told us it did not receive the annual review paperwork from the August 2022 review held at the college until December 2022. But Miss X has provided us with evidence to support that the college sent the paperwork to the Council on 2 September 2022. Therefore, this is fault. The guidance states within four weeks of the review meeting, a council must decide whether to keep, cease or amend the EHC plan and must notify the parents and what the proposed changes are. Miss X also contacted the Council in October about the review and amending the EHC plan. But the Council failed to act on the review paperwork until December 2022. This fault caused uncertainty and stress to Miss X who spent unnecessary time and trouble in chasing the Council and Mr Z went without an up to date EHC plan.
29. There is also evidence of further fault as Miss X contacted the Council twice in December 2022 to state that there were many omissions in the draft plan and requested a meeting with the Council to discuss this. There is no evidence to suggest the Council responded to Miss X before it issued the final EHC plan. This meant Miss X spent unnecessary time and trouble contacting the Council and her comments were not considered.
30. After the draft EHC plan was issued in December 2022, the final plan was not issued until April 2023. The guidance states councils must issue an amended plan as quickly as possible and within eight weeks of the original amendment notice. The delay in issuing the final EHC plan meant that Mr Z continued without an up to date plan. This caused uncertainty to Mr Z as to whether the additional provisions could have been put in place sooner.
31. Miss X complained to the Council in October 2022, but the Council failed to respond. The Council told us it acknowledged Miss X’s complaint and drafted a response in December. But it said the stage one response was bypassed when the case was passed to us for investigation. This is fault and not in line with the Council’s complaint’s policy. The Council has recognised this fault and said it has implemented a new SEND structure which will bring improvements to the way SEND services are delivered. But this fault caused significant stress to Miss X who spent unnecessary time and trouble in contacting the Council.
32. Miss X said the Council delayed providing her with a PTB. The Council told us it is a discretionary scheme and only awarded where it is cost effective. This is also supported by the Council’s policy. Miss X submitted the PTB application in May 2022 and was told she should expect to wait up to six weeks from the end of June to receive the outcome. But the Council did not respond to her request until October 2022 when it was initially refused as it said it was not cost effective to the Council. During that time, Miss X took Mr Z to and from college. Whilst it is not our role to decide whether someone is eligible for a PTB, the delay in responding to Miss X’s request is fault. The PTB has now been approved and backdated to September 2022. But this fault caused uncertainty and stress to Miss X.

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Agreed action

33. To remedy the injustice caused by fault, within one month of my final decision the Council has agreed to:
• Apologise to Miss X and Mr Z for the faults identified in this statement.
• Pay Miss X £200 for the unnecessary time and trouble she spent contacting the Council.
• Pay Miss X £100 to acknowledge the uncertainty and stress caused to her by the faults identified in this statement.
• Pay Mr Z £200 to acknowledge the uncertainty caused to him.
34. Within two months, issue written reminders to relevant staff to ensure they are aware of:
• The Council’s duty to decide whether to keep, cease or amend the EHC plan within four weeks of the review meeting, and to notify the parents in writing and include what the proposed changes are.
• The Council’s duty to issue an amended plan as quickly as possible and within eight weeks of the original amendment notice.
• The Council’s complaints policy which states the Council will acknowledge complaints within three working days and will provide a response within 20 working days at stage one. Where this is not possible, it will inform complainants at the earliest opportunity.
35. Within three months, provide us with evidence of the Councils recent implementation of the new SEND structure.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman