London Borough of Islington (23 019 982)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 19 Aug 2024

The Ombudsman's final decision:

Summary: Mrs F complained about the Council’s handling of the Education, Health, and Care plan process for her son following an annual review. The Council accepted it was at fault for causing delays in the process and how it communicated with her, and proposed a remedy to Mrs F. We found the Council was at fault, but its remedy was not enough. The Council will apologise and make payment in line with our recommendations to Mrs F to acknowledge the injustice its faults caused her.

The complaint

  1. The complainant, Mrs F, complained about the Council’s handling of the Education, Health, and Care (EHC) plan process for her son (X) following an annual review. She said:
  • her requested changes to the draft EHC plan were not actioned, or there were delays in doing so;
  • it failed to meet statutory timescales for the EHC plan process; and
  • the Council communicated poorly with her.
  1. Mrs F says, as a result, she experienced distress and uncertainty. She also said X had a loss of provision, as by the time the Council considered her request, the provision she requested was no longer available for X to access.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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.
  3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted)

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How I considered this complaint

  1. As part of my investigation, I have:
    • considered Mrs F’s complaint and the Council’s responses;
    • discussed the complaint with Mrs F and considered the information she provided; and
    • had regard to the relevant law and guidance to the complaint.
  2. Mrs F and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Education, Health, and Care plans

  1. A child with special educational needs may have an EHC plan setting out the child's needs and what arrangements should be made to meet them. The EHC plan is set out in sections.
  2. The Special Educational Needs and Disability Code of Practice (code of practice) sets out the process for carrying out EHC assessments, producing EHC plans and reviewing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
    • 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;
    • where a council proposes to amend an EHC plan, it should start the process of amendment without delay. It must send the child's parent or the young person a copy of the existing plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes;
    • 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.
  3. 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. If the council decides not to amend the plan it must notify the child's parent of their right to appeal that decision and the time limit for doing so.

What happened

  1. Mrs F son (X) has special educational needs which includes attention deficit hyperactivity disorder (ADHD). He attends an alternative provision school and has an EHC plan.
  2. An annual review of X’s EHC plan took place in June 2023. The Council told Mrs F it intended to continue with the plan, but it would make some changes.
  3. In August 2023 the Council shared a draft amended EHC plan for X with Mrs F. She subsequently made comments and chased the Council for its response over the following two weeks.
  4. In early September 2023 Mrs F told the Council she had found a specific tutor who could help X with ADHD coaching. She asked if this and some other provision could be included in X’s EHC plan.
  5. Shortly after, the Council told Mrs F the caseworker allocated to X’s case had changed. Mrs F again shared her comments on the draft EHC plan and asked for a meeting to discuss her requests.
  6. A meeting between Mrs F and the new caseworker took place in early October 2023 in which she explained the provision she would like in X’s EHC plan. Three weeks later, when the Council considered the request, it decided it could not reach a view as it needed X’s school’s opinion on the requested provision.
  7. Mrs F chased the Council for progress on her request, and in late November 2023 the Council asked the school for its view on the provision Mrs F had requested.
  8. By December 2023 an interim review for X was due. However, scheduled and rescheduled meetings did not take place due to Council staff unavailability or sickness.
  9. However, two special educational needs meetings did take place which involved the school, the Council and Mrs F. It was agreed the Council would approach the ADHD tutor and some other provision to decide if the support could be provided to X and determine the costs.
  10. The Council contacted the ADHD tutor shortly after, but by then the tutor was no longer able to do face-to-face sessions due to other commitments. He could offer online sessions, but Mrs F did not find this would be suitable for X. It also sought other provision requested by Mrs F, but this had a waiting list of around 3 months.
  11. The Council told Mrs F it had not finalised X’s EHC plan as it wanted to incorporate any changes from the interim review and her requests into the EHC plan. It asked her if she wanted it to finalise the plan to give her appeal rights. She said it was not possible to finalise the EHC plan until the interim review had been held.
  12. In early January 2024 Mrs F complained to the Council. She escalated her complaint when she was not satisfied with the Council’s response. Her complaint was:
    • her requested changes to the draft EHC plan were not actioned, or there were delays in doing so which meant the ADHD tutor was no longer available for face-to-face sessions;
    • it failed to meet statutory timescales for the EHC plan process;
    • the Council communicated poorly with her; and
    • she did not feel the Council had properly acknowledged the impact its delays caused X.
  13. In response the Council partially upheld Mrs F’s complaint and offered her a remedy of £350 to acknowledge the distress its fault had caused and the inconvenience she had to complain. It explained:
    • it accepted it had failed to adhere to the statutory timescales to complete X’s final amended EHC plan and caused a delay in communicating with her. This was partly due to changes in its allocated caseworker due to a restructure within the Council’s special educational needs and disability (SEND) team;
    • it had caused a delay in reaching its view on Mrs F’s requested provision for X. This was because X’s school already provided some support to X, but the Council was unsure about the school’s view regarding the need for the proposed ADHD provision and if this could be delivered in the school. It accepted its delays and lack of explanation caused Mrs F uncertainty and distress, and apologised;
    • When it received the school’s view, it contacted the ADHD tutor but he was no longer able to do face-to-face sessions. It explained it was under no duty to provide the requested provision as this was not specified in X’s EHC plan at the time, but acknowledged Mrs F’s concerns about the impact this had on X;
    • the interim review of X’s EHC plan was delayed due to Council staff unavailability or sickness. The review had since taken place and a draft amended EHC plan was issued to Mrs F; and
    • it had provided feedback to its SEND team following its findings.
  14. The Council issued X’s final amended EHC plan in March 2024, which set out Mrs F’s rights of appeal to the SEND Tribunal.
  15. Mrs F remains dissatisfied with the Council’s response and asked the Ombudsman to consider her complaint. She also said she is not satisfied X’s allocated school can meet his needs. The school has following an annual review in April 2024 said it cannot meet X’s ADHD needs and the Council has recently agreed a change the placement is needed.

Analysis and findings

EHC plan process

  1. X’s annual review took place in June 2023. The Council confirmed it would continue the plan but intended to make some changes. The statutory timescales says it had to:
    • share its decision to amend X’s EHC plan and its draft amendments within four weeks of the annual review. The Council took over eight weeks to do so; and
    • consider Mrs F comments and issue its final amended EHC plan within 12 weeks of the annual review. This would have been in September 2023, but the Council did not issue X’s final amended EHC plan until March 2024, which was over six months late.
  2. I acknowledge Mrs F made requests for additional provision shortly before the Council should have issued its final amended EHC plan, and the Council asked Mrs F whether it should finalise X’s EHC plan in late 2023. However, regardless of this, it remained the Council’s duty to finalise X’s EHC plan within the statutory timescales. The Council was at fault for failing to do so for a six-month period.
  3. In circumstances where the Council received late requests for special educational needs provision to be included in an EHC plan, which means it cannot consider this within the statutory timescales, it should finalise the EHC plan. It can then subsequently work with the parent to consider and include requested provision in an amended final EHC plan.
  4. The Council told Mrs F it agreed it was at fault for failing to adhere to the statutory timescales.

Mrs F’s requests for provision and the Council’s communication

  1. The Council accepted its communication with Mrs F was delayed and it did not reach a decision as soon as it should have regarding her requests for ADHD coaching and some other provision for X. It accepted this caused her some distress and uncertainty.
  2. I agree with the Council’s findings. In Autumn 2023 it should have ensured it had a caseworker allocated during its restructuring to respond to her communication and to request input from the school regarding her request without delay. It should also have given Mrs F some information about its decision process to limit the uncertainty its delays caused. The Council did not do so, which was fault.
  3. However, the Council was also correct to explain to Mrs F that it was not under a duty to deliver the provision she requested as this was not provision set out in X’s EHC plan. While the Council agreed in principle to seek the ADHD provision from the tutor in late 2023, this does not change the fact that it was under no duty to source this or any similar provision at the time. It was therefore not at fault for failing to put Mrs F’s requested provision in place. Nor can I say the Council’s delays caused X an injustice.

X’s new final amended EHC plan

  1. I understand Mrs F is not satisfied with the EHC plan or the placement the Council listed in X’s final amended EHC plan in March 2024, and it has been agreed following a subsequent annual review a different school placement is needed for X.
  2. However, I cannot consider this part of Mrs F’s concerns. This is because she has appeal rights to the SEND Tribunal to contest any disagreement about the provision or school placement listed in the March 2024 EHC plan, and any failure to deliver provision in this plan was not part of her original complaint to the Council.
  3. If Mrs F disagrees with the content of X’s EHC plan she can appeal to the SEND Tribunal, or if she believes X is not receiving the provision set out in his EHC plan she will need to complain to the Council first.

Complaints handling

  1. There was no fault in the Council’s complaints handling. This is because it responded to Mrs F’s complaint within the timescales set out in its Complaints Policy. It agreed it was at fault and proposed a remedy to acknowledge the injustice its faults caused.

Injustice

  1. The Council told Mrs F it accepted it was at fault for its delayed communication, delays seeking the school view on Mrs F’s requests and reach a decision, and to finalise X’s EHC plan within the statutory timescales. It apologised and proposed a remedy of £350 for the impact its faults caused.
  2. I am satisfied the Council’s faults caused Mrs F distress due to the uncertainty she experienced. She also had a delay to her right to appeal X’s EHC plan to the SEND Tribunal and had time and trouble to bring her concerns to the Council’s attention.
  3. However, I found the Council’s remedy was not enough to acknowledge the distress and uncertainty she had as a result of this and to pursue her complaint.

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Agreed action

  1. To remedy the injustice the Council caused to Mrs F, the Council should, within one month of the final decision:
      1. apologise in writing to Mrs F and pay her £450 to acknowledge the distress and uncertainty the Council’s faults caused her, including the time and trouble she had to raise her concerns.
  2. Within three months of the final decision the Council should also:
      1.  
      2. remind staff in its Special Educational Needs and Disability Service to ensure:
        1. the statutory timescales for the Education, Health, and Care plan process following annual reviews are always adhered to. Including in circumstances where it receives late request for further educational needs provision from parents; and
        2. requests from parents are responded to and views from schools or other professionals are sought without delay. This is to ensure good communication with those involved and to avoid unnecessary delays in the process.
  3. The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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