Summary: Miss Y complained about way the Council dealt with her child, Z’s Educational Health Care Plan, special educational needs provision and social care assessments and support. We have found fault by the Council in; failing to respond Miss Y’s request for a re-assessment of Z’s special educational needs, and complete the annual review, within the statutory timescales; and its communication and record keeping failures, causing injustice. We have not found fault with, or investigated the other parts of Miss Y’s complaint. The Council has agreed to remedy the injustice caused by apologising to Miss Y and making a payment to reflect the upset caused.

The complaint

1. Miss Y complains about the way the Council has dealt with her child, Z’s Educational Health Care (EHC) Plan, special educational needs provision and social care assessments and support. She says the Council failed to:
1. respond to her request for a re-assessment of Z’s special educational needs within the statutory timescales;
2. complete the annual review of Z’s EHC Plan within the statutory timescales;
3. issue an accurate and legally compliant EHC Plan;
4. respond promptly to her communication and complaints within its service standard timescales;
5. respond properly to her requests for a child in need assessment of Z by its children with disabilities service and
6. provide her with four hours a month respite support for the last four years, as agreed following her Parent Carer Needs Assessment (PCNA) in 2019.
2. Miss Y says Z does not have a legally compliant EHC Plan because of these failures and is not being provided with the support they need to reach their potential. They have not received the social care assessment they are entitled to, and she has not received the agreed respite support.
3. Miss Y wants the Council to put these failures right and reimburse her for the support she has not received.

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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.
5. 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)
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)
7. 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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What I have and have not investigated

c) The Council did not issue an accurate or legally compliant EHC Plan

8. I have not investigated Miss Y’s complaint the Council did not issue an accurate or legally compliant EHC Plan.
9. This is because:

• 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);
• The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement; and
• there is a right of appeal to the Tribunal against a council’s description of a child’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

10. Miss Y appealed against the Council’s decision not to re-assess Z’s needs. In my view, it is reasonable to expect her to have used her right to appeal against the content of Z’s EHC Plan if she was unhappy about this.

f) The Council did not provide Miss Y’s support hours from 2020

11. I have investigated Miss Y’s complaint about what happened about her respite support hours from January 2023, but I have not looked at what happened before then.
12. This is because:

• 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); and
• Miss Y did not complain to us until November 2024.

13. Miss Y has explained the issues she has experienced over the past years which she says precluded her from raising this part of her complaint sooner. I understand she has had a difficult time. But she has been in regular contact with the Council since 2020. I note she did raise this concern with the Council in January and September 2023 and says she did not receive any proper response.
14. I have exercised my discretion to investigate what happened about this part of Miss Y’s complaint from January 2023. In my view she had the opportunity to raise her concerns about respite hours payments as a complaint with the Council, and then with us if necessary, at that stage and there was no good reason not to do so.

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How I considered this complaint

15. I considered evidence provided by Miss Y and the Council as well as relevant law, policy and guidance.
16. Miss Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

Section 17 duties

17. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
18. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled

19. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly

The Council’s children with disabilities service

20. This is a specialist service that offers support to children with a permanent and substantial physical and/or learning disability, and their families.
21. Its published threshold criteria set out information on who can access the service at different levels of ability.

Reassessment of an EHC Plan

22. The council must decide whether to conduct a reassessment of a child’s EHC Plan if this is requested by the child’s parent or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
23. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child’s needs have changed significantly.
24. The council must tell the child’s parent whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.

Reviewing EHC Plans

25. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.
26. The annual review begins with consulting the child’s parents and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
27. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents of their right to appeal the decision to the tribunal.
28. Where the council proposes to amend an EHC Plan:

• the law says it must send the child’s parent a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194);
• Case law sets out this should happen within four weeks of the date of the review meeting; and
• Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

What happened

29. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

November 2023: Request for a re-assessment of Z’s special educational needs

30. Z has had an EHC Plan for a number of years. On 6 November, Miss Y asked the Council to carry out a re-assessment of Z’s special educational needs (SEN).
31. The request was referred to the Council’s panel. It considered this and decided to decline the request on 28 November. It told Miss Y about its decision on 1 December.
32. The Council notified Miss Y of her right to the appeal to the Tribunal against the decision on 14 December.
33. Miss Y appealed to the Tribunal on 20 February 2024.

October 2023 to April 2024: Annual review of Z’s EHC Plan

34. The Council issued Z’s final amended EHC Plan on 30 December 2022. It held the annual review meeting on 10 October 2023.
35. It told Miss Y on 1 December it proposed amending the plan. It sent her notice of the proposed changes on 18 December.
36. Following a meeting with Miss Y about the proposed amendments, it issued a further draft amended plan on 6 February 2024.
37. The Council issued Z’s final amended EHC Plan on 25 April 2024.

Miss Y’s first complaint to the Council

38. Miss Y complained the Council had not replied to her request for a re-assessment or completed the annual review of Z’s EHC Plan within the statutory timescales. She also complained about delays with the Council’s communication.
39. The Council issued its first complaint response on 28 March and its final response on 22 May 2024. The Council said it accepted:

• it had not responded to the re-assessment request within the statutory timescale of 15 days. This had delayed her right to appeal against its decision by 3 weeks 2 days. It had made changes to improve its request referral process;
• there had been a delay of 3 months in issuing the final EHC Plan. But as she had already made an appeal against its decision not to re-assess, any appeal against the content of the final EHC Plan could be combined with her existing appeal; and
• there had been some delays in its communication with her and it had not always met its service standard of contact within 5 working days. It was looking to address this by increasing its staffing level

40. The Council apologised for the delays. It offered Miss Y a payment of £400 to reflect the upset caused.
41. The Council also replied to further issues Miss Y had raised and said:

• in response to her complaint the EHC Plan was not legally compliant, it considered the points she raised about its accuracy before issuing the final plan; and
• it understood its children with disabilities service had decided Z did not meet the criteria for their involvement.

Miss Y’s further complaint

42. In July 2024 Miss Y complained about the response to her request for an assessment of Z’s social care needs by the children with disabilities (CWD) service. She said:

• the Council had a legal requirement to carry out a section 17 child in need assessment for a disabled child. She asked for an assessment for Z on 14 September 2023 but did not receive any response; and
• she was entitled to 4 hours a month of support as set out in her PCNA. She had not received this support since 2020. At a recent meeting she had been told this support would be increased to 8 hours a month but had heard nothing further about this.

43. In its complaint response of 14 August, the Council said:

• Miss Y had contacted it in September 2023, but it was not clear whether she was asking for a child in need assessment for Z, or a review of her PCNA;
• it had tried to speak to her about her request but was not able to reach her. It sent her a letter on 25 September 2023 advising it had closed the enquiry and she should get in touch if she needed support; and
• Miss Y did not contact it again until 10 June 2024, when she asked for an assessment for Z by the CWD service.

44. The Council also said, following her contact on 10 June 2024, it:

• had attempted to speak to her and wrote on 12 June asking her to contact it about her request. Miss Y asked again for a CWD service assessment on 18 June:
• contacted a number of professionals to gather information about Z’s health, education and social care needs; and
• considered this information and decided Z did not meet the eligibility criteria for CWD service involvement.

45. The Council accepted, although it had decided Z did not meet the threshold criteria for its CWD service, it should have offered Miss Y the option of an alternative assessment of Z’s needs. But since then:

• an officer from the CWD service visited Miss Y on 13 August 2024. They discussed the eligibility criteria, short breaks process and encouraged her to complete the PCNA request on the Local Offer; and
• the officer met Z during this visit and discussed their needs with Miss Y. The Council confirmed Z did not meet the criteria for CWD service involvement.

46. With regard to the support hours agreed in Miss Y’s PCNA, the Council initially told us:

• it had completed a PCNA with her in September 2019. It had agreed to provide her with 4 hours of support a month. It delivered this support through a care agency;
• Miss Y told it in September 2020 she was not satisfied with the care agency support. She now wanted to arrange this herself through direct payments;
• it had agreed to her request. It sent her the paperwork to set up the direct payments. Miss Y told it she would let it know when she had found a suitable provider;
• it had completed a child in need assessment for Z with Miss Y’s involvement in December 2022 and held a meeting with her about this in February 2023. Miss Y did not raise the issue of her support hours or direct payments at this stage;
• she had not contacted it again about direct payments for the PCNA support hours until June 2024; and
• it had not agreed any increase in her support hours over and above the 4 hours a month agreed in 2019.

47. But further information provided by the Council shows:

• Miss Y asked the Council in January 2023 about the payments. She said the amount of paperwork and trying to find someone for four hours caused her more stress; and
• she raised this again in September 2023 and that she had not been able to process the paperwork.

My analysis – was there fault by the Council causing injustice?

The response to the request for a re-assessment of Z’s SEN (complaint a)

48. The Council has accepted it did not respond to Miss Y’s request within the statutory timescale of 15 calendar days. She made her request on 6 November 2023. The Council should have notified her of its decision, and appeal rights, by 21 November 2023. It did not do so until 14 December 2023.
49. The delay of just over three weeks was fault. This caused Miss Y uncertainty about the outcome and a delay to her right to appeal against the decision.

Completion of the annual review (complaint b)

50. The Council has accepted it did not complete the annual review process within the statutory timescales. It should have sent Miss Y notice of the proposed amendments to the plan by 7 November 2023 and issued the final amended plan by 12 February 2024. It did not issue the final amended plan until 25 April 2024.
51. The delay of over 10 weeks was fault. This caused Miss Y frustration and uncertainty about the content of the final amended plan.

Communication failures (complaint d)

52. The Council has accepted there were delays at times in its communication with Miss Y.
53. These communication failures were fault and caused Miss Y additional frustration and uncertainty about the position with Z’s EHC Plan.

Proposed remedy for injustice caused by the faults on a), b) and d)

54. In its final complaint response, the Council offered Miss Y a payment of £400 to reflect the upset caused by its delays with the response to her request for a re-assessment and the issue of the final EHC Plan, and communication failures.
55. I consider this offer meets the expectations in our published remedies guidance and I don’t propose to recommend any additional payment.

Request for an assessment of Z’s needs by the CWD service (complaint e)

56. The Council told us it had tried to contact Miss Y by phone to clarify the type of assessment requested and sent her a letter on 25 September 2023. But the contact record provided does not include any details of the contact attempts or the letter sent on 25 September. Miss Y says she did not receive any contact from the Council in response to her request.
57. My view is the Council failed to keep proper records of its attempts to contact Miss Y in September 2023. This was fault causing Miss Y uncertainty about what the Council did in response to her request.
58. But I have not found any further fault with its response because it then:

• promptly, once her request had been confirmed. began the process of gathering the appropriate information;
• properly considered the information against its published threshold for CWD service involvement; and
• visited Miss Y and explained its decision to her.

59. I understand the Council has now completed a section 17 child in need assessment for Z.

Provision of Miss Y’s support hours from November 2023 (complaint f)

60. My view is there was fault by the Council in failing to respond properly to Miss Y’s questions in January and September 2023 about how to find an appropriate support worker and arrange the direct payments for the agreed four hours of respite support.
61. This caused Miss Y avoidable upset, frustration and uncertainty about how she could go about setting up an arrangement for respite support.
62. But there is no information to show any increase in her support hours was agreed after November 2023; and

• the Council promptly clarified the position regarding the support provision in response to her contact about this in June 2024; and
• it has now carried out a new PCNA for Miss Y and agreed to make direct payments for the support set out in the new assessment.

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Action

63. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Miss Y for failing to respond Miss Y’s request for a re-assessment of Z’s special educational needs, and complete the annual review, within in the statutory timescales; and its communication and record keeping failures. This apology should be in line with our guidance on Making an effective apology: and
2. pay Miss Y, if it has not already done so, £400 to reflect the upset, frustration and uncertainty caused by its failures. This is a symbolic amount based on our guidance on remedies;
3. pay Miss Y, the further amount of £300 to reflect the upset, frustration and uncertainty caused by its further failures regarding complaints (e) and (f). This is a symbolic amount based on our guidance on remedies;
64. The Council should provide us with evidence it has complied with the above actions.

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Decision

65. I find fault causing injustice. The Council has agreed to take the above action to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman