Summary: The Council acknowledged serious failings concerning Mr F’s son’s education, health and care (EHC) plan following Mr F’s first complaint. It is too late for us to look into these matters now. The Council acknowledged further failings updating the Plan following Mr F’s second complaint. The Council has apologised and offered a suitable symbolic payment.

The complaint

1. Mr F complains the Council:
• failed to review his son’s Education, Health and Care (EHC) Plan for three years, leaving his son without education for two years;
• ceased to maintain the Plan without first holding a review; and
• failed to complete a re-assessment before issuing a new draft Plan.
2. Mr F complains about poor communication by the Council and the Council’s failure to undertake actions it promised following an earlier complaint.
3. Mr F says his dealings with the Council have caused him considerable frustration and stress. He says he has given up work to care for his son which has caused considerable financial strain, and his son has missed more than two years of education.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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. 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)
6. 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

7. I considered information provided by Mr F and the Council. Mr F and the Council were given an opportunity to comment on a draft of this decision. I considered Mr F’s and the Council’s comments before making this final decision.

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What I found

8. Mr F’s son, Mr S, is a young adult. He has an Education, Health and Care (EHC) Plan maintained by the Council.
9. In September 2021, Mr S began a course at a local college. He stopped attending in December 2021.

Mr F’s first complaint to the Council

10. Mr F complained to the Council on 6 August 2023. He complained the Council had not completed an annual review of Mr S’s EHC Plan since September 2020, and Mr S had been without education since December 2021.
11. Mr F said he had been asking the Council for support since January 2022, but his emails had been unanswered until June 2023. He said he spoke to a caseworker in June 2023 who promised to arrange provision for Mr S while the Council obtained updated advice from an Educational Psychologist. Mr F said he heard nothing further from the Council until 4 August 2023 when he received a letter to say the Council had decided to cease to maintain Mr S’s EHC Plan.
12. The Council responded to Mr F’s complaint on 20 October 2023. The Council said it was not able to fully investigate Mr F’s complaint because staff had left the Council. The Council said the last recorded annual review of Mr S’s EHC Plan was in 2018 and apologised for its failure to complete subsequent reviews. The Council said that it should have decided whether to cease Mr S’s Plan in 2021 when he did not attend college. The Council said that recent delays were the result of Mr F not returning ‘paperwork’. The Council suggested mediation in respect of its decision to cease to maintain Mr S’s EHC Plan.
13. Unhappy with the Council’s response, Mr F asked the Council to respond at the second stage of its complaints procedure. He said the Council had referred to the wrong college and did not appear to be aware that Mr S had attended college for three months. He said he had not been asked to submit any paperwork. He complained about the lack of responses from the Council to his emails.
14. The Council responded in November 2023. Mr F says the Council provided him with an action plan, as part of the complaint resolution process, in December 2023.
15. The Council agreed to maintain Mr S’s EHC Plan. The Council commissioned a specialist provider to work with Mr S and agreed to review his Plan once he was re-engaged in education. I understand Mr S has received education from a specialist provider since January 2024.

Mr F’s second complaint to the Council

16. Mr F made a new complaint in July 2024. He complained the Council had not obtained relevant advice for a reassessment of Mr S’s special educational needs. He said Mr S’s caseworker was not responding to his emails. He said a draft Plan the Council sent was based on reports that were 16 years old.
17. The Council responded on 23 July 2024. The Council upheld Mr F’s complaint. The Council explained that it had not received advice from health, occupational therapy and social care. The Council said it would continue to ‘chase’ and apologised for the delay.
18. Unhappy with the Council’s response, Mr F asked the Council to respond at the second stage of the complaints process. He queried the status of the draft Plan the Council had sent and said he had no contact details for Mr S’s new caseworker. He complained about poor communication from the Council and said he was concerned that time was running out to secure appropriate support for Mr S. Mr F asked the Council to review its response to both his complaints.
19. The Council responded on 2 September 2024. The Council explained the draft EHC Plan was not the final draft and would be revised when the Council received further advice. The Council apologised for the misunderstanding and said it would write to confirm the details. The Council suggested fortnightly email contact with Mr S’s new caseworker. The Council offered a payment of £350 to acknowledge the distress caused by having to pursue his complaint, and the delay to Mr S’s reassessment.
20. Mr F replied to the Council’s letter on 19 September 2024. He explained why he remained unhappy with the Council’s response. He said he had not heard from Mr S’s new caseworker and the Council had not written to confirm details of the review of Mr S’s Plan as promised. He described his frustration at his dealings with the Council and the toll they had taken. In particular, Mr F described his repeated experience of poor communication and his concern for Mr S’s future because the Council failed to follow through with the promises it made.
21. Mr F said he had shared his concerns with Ofsted, the regulator, and asked us to investigate his complaints.

Consideration

22. The Council has acknowledged serious failings in relation to Mr S’s EHC Plan:
• the Council failed to complete annual reviews after 2018;
• the Council did not follow the correct procedure when it unilaterally decided to cease to maintain the Plan in 2023; and
• the Council took too long to complete the re-assessment after it agreed to continue to maintain the Plan.
23. From December 2021 until January 2024 Mr S had an EHC Plan but received no education. It appears the Council forgot about him.
24. When Mr F queried Mr S’s lack of provision in 2023, the Council appears to have made incorrect assumptions about Mr S’s education and ceased to maintain his Plan without first checking his wishes.
25. Fault by the Council has understandably undermined Mr F’s confidence.
26. As well as failing to comply with regulations and government guidance, the Council has failed to communicate effectively with Mr F, and failed to keep promises it made in its complaint responses.
27. Mr F has written about his experience of dealing with the Council and the stress and worry this has caused. He has shown considerable patience and understanding in his dealings with the Council.
28. Poor communication has caused Mr F considerable frustration and resulted in significant delays. The Council made mistakes in its complaint responses which added to Mr F’s concern and prolonged his complaint. Mr S has returned to education, which everybody welcomes, yet the Council failed to fulfil promises it made around communication and updating his EHC Plan.
29. I have no doubt that the significant increase in demand for services described by the Council and a high level of staff turnover have contributed to problems at the Council. I also appreciate that nobody at the Council set out to deliver a poor service to Mr F. Nevertheless, this has been his experience. I uphold his complaint.
30. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice.
31. We have published guidance to explain how we assess remedies for people who have suffered injustice as a result of fault by a council. Our primary concern is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mr F and Mr S, we may consider a symbolic payment. We do not award compensation in the way a court might.
32. Complaints to us must be made promptly, and normally within 12 months of a person becoming aware of the matter they complain about. We may investigate late complaints, but only if there was a good reason the complaint could not have been made sooner. The longer an investigation takes place after the event, the harder it is to establish what happened. And the more time that has passed, the less likely we would be able to recommend a meaningful remedy if we found fault.
33. I do not underestimate the challenges Mr F has faced caring for Mr S. And I appreciate how challenging his dealings with the Council have been.
34. The Council has admitted that it got things wrong and offered its apologies. I welcome the Council’s recognition of its mistakes.
35. Too much time has passed since Mr F’s first complaint to the Council for me to investigate and recommend a meaningful remedy for the injustice caused by the faults the Council identified (the failure to review Mr S’s EHC Plan since 2018, the education he missed and the decision to end his Plan in August 2023).
36. I have considered a remedy for the injustice caused by the fault in Mr F’s second complaint to the Council.
37. There was delay in the reassessment of Mr S’s education, health and care needs, and the Council caused confusion, and frustration, in its handling of the incomplete draft.
38. The Council upheld Mr F’s complaint and offered a symbolic payment of £350.
39. There is no formula I can use to calculate a symbolic payment for the injustice caused. I do not underestimate Mr F’s frustration, which is compounded by his previous dealings with the Council. I understand Mr S remained in education.
40. Taking all these factors into account, I consider the payment offered by the Council is appropriate. It is broadly in line with our published guidance.
41. If Mr F has not already accepted the Council’s offer, it will offer the payment again now that this investigation has concluded.

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Decision

42. The Council acknowledged serious failings concerning Mr F’s son’s education, health and care (EHC) plan following Mr F’s first complaint. It is too late for us to look into these matters now. The Council acknowledged further failings updating the plan following Mr F’s second complaint. The Council has apologised and offered a suitable symbolic payment. There is nothing further we can add.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman