Summary: the Council delayed completing a review of an education, health and care plan, delayed issuing the final plan and failed to properly consider what education to put in place at home for Mr C’s son. An apology, payment to Mr C and his son, discussion about education plans going forward and a reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complained the Council:
• delayed reviewing his son’s education, health and care plan;
• delayed issuing the final plan following the review; and
• failed to put in place enough education provision following a tribunal.
2. Mr C says fault by the Council has resulted in his son missing out on education.

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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. If we are satisfied with a Council’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

5. As part of the investigation, I have:
• considered the complaint and Mr C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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.

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What I found

Chronology of the main events

8. Mr C and his children moved into the Council’s area in 2018. The Council issued a new education, health and care plan (EHCP) in 2019. Mr C appealed in August 2019. By that point Mr C’s son was not attending school.
9. The tribunal considered Mr C’s appeal in January and March 2020. The Council received the tribunal’s decision on 22 April. The Council made the amendments tribunal ordered and issued a final EHCP in May 2020. By that point the annual review was already late as it should have taken place in April 2020. The Council put in place online tuition for Mr C’s son, which began with two maths lessons a week.
10. The Council sought dates from Mr C for the annual review in July 2020. The annual review took place in September 2020. The Council later apologised for the delay holding the review.
11. In November 2020 Mr C contacted the Council about other subjects his son wanted to study such as art, cooking, music and computing. Mr C told the Council about a tuition company he had identified and for which he wanted a personal budget. The Council asked Mr C to provide costings for the provision. Mr C said he could not do that until the Council engaged with the family.
12. In December 2020 Mr C again asked the Council about provision in other subjects for his son.
13. The Council issued an amendment notice for the education, health and care plan in December 2020. The Council issued a final plan in January 2021.

Special educational needs code of practice

14. The special educational needs code of practice (the code) says the first review of an EHCP must be held within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review.
15. The code says within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person and the school or other institution attended. If the plan needs to be amended, the local authority should start the process of amendment without delay.
16. The code says following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHCP as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.

Analysis

17. Mr C says the Council delayed reviewing his son’s education, health and care plan and then delayed issuing the final plan. As I said in paragraph 14, the code requires the Council to review education, health and care plans each year. In Mr C’s son’s case that means the Council should have reviewed the plan in April 2020. The Council accepts it failed to do that and has apologised. Having considered the education, health and care plan in place before the review and compared that to the one in place after the review the only significant difference in provision is the holistic assessment of Mr C’s son’s health needs. Had the Council completed the review on time the need for a health assessment would have been identified earlier. Given Covid 19 I could not say if the Council had completed the review on time it would have enabled the assessment to take place earlier and provision put in place. However, I consider Mr C and his son have suffered an injustice as they have uncertainty about whether an earlier health assessment would have taken place.
18. Mr C says the Council delayed issuing a final plan following the September 2020 review. The Council accepts it did not meet the timescales set out in paragraphs 15 and 16 of this statement as it did not issue the final plan until January 2021. I note the Council delayed issuing the final plan to incorporate the changes Mr C asked for to ensure he was happy with the final plan and to prevent an appeal. While the code encourages collaborative working, it should not be at the cost of adhering to the timescales. Failure to keep to the timescales is therefore fault. As I said in the previous paragraph, delay producing the final plan potentially delayed the holistic assessment and any provision that will follow from that. For the delays though I am pleased to note the Council has begun providing training to those dealing with SEN cases to ensure officers are aware of SEN practices and procedures and the need to follow statutory timescales. I hope this will improve the Council’s ability to ensure review timescales are kept to.
19. Mr C says the Council failed to put into place enough education provision following his son’s special educational needs and disability tribunal in March 2020. The tribunal noted Mr C’s son was not ready to return to school and said he needed a slow introduction of education at home. The tribunal noted provision of education using home tutors had begun and said that provision needed to be overseen by someone who had built a positive and trusting relationship with Mr C’s son. The tribunal noted the Council said it had suitable professionals to provide support.
20. I understand Mr C’s concern about the limited education put in place for his son at first. That began with two Maths sessions per week, followed by English and Science. This means by the beginning of 2021 Mr C’s son was receiving six hours per week provision. Given tribunal said a slow introduction of education at home was required I do not criticise the Council for beginning with limited lessons. However, tribunal also said the provision needed to be overseen by the Council. I have seen no evidence to suggest the Council developed a plan of how to increase the provision over time, that it put in place any measures to assess the provision in conjunction with Mr C, his wife and his son or that it considered what extra provision might be possible going forward. Rather, the evidence I have seen suggests it was requests from Mr C and his wife and then his son which led to English and Science being added. I am concerned the Council did not develop a plan in conjunction with the family to assess how the education was going and then identify further provision. Without clear oversight or a plan I can understand why Mr C and his son felt uncertain about what education would be provided and when. That is unlikely to have reduced Mr C’s son’s anxiety. Failure to develop a proper plan and assess the progression of education in conjunction with discussions with Mr C and his wife and son are fault.
21. The situation is complicated though by Covid 19. This has meant tutors could not provide face-to-face tuition, which is what Mr C was saying his son needed at the time. The fact the tuition has taken place online also means some lessons Mr C’s son would like to receive, such as cooking, are more difficult to provide remotely. Until recently Mr C had declined further tutoring for his son because he believed face-to-face provision was required and wanted to identify his own provider, paid for by a personal budget. That has now changed. Taking into account the difficulties in providing education online or in a format which Mr C considered suitable for his son I could not say if the Council had a proper plan in place it would have resulted in more education. However, I consider Mr C and his son have suffered an injustice as they are uncertain whether the situation would have been better had the Council worked with them to identify a plan of how to increase provision over time. As Mr C’s view of what is appropriate for his son has also now changed I recommended the Council work with him to identify suitable education going forward, with a clear plan for progression. The Council has agreed to that recommendation, subject to the outcome of the July 2021 tribunal.
22. I am also concerned the Council agreed to provide some extra tuition over the summer holidays but then failed to do so. That is also unlikely to have encouraged Mr C and his son to believe the Council was committed to providing tuition. That again is fault and likely meant Mr C’s son missed out on six weeks of education.
23. As remedy for the injustice caused to Mr C, his wife and his son I recommended the Council apologise to them and pay them £900. That is made up of £500 to reflect the uncertainty related to the holistic assessment and lack of oversight of the education plan, £300 to reflect the failure to put in place provision during the school holidays as the Council agreed to do and £100 to reflect the time and trouble Mr C had to go to pursuing his complaint. The Council has agreed to my recommendations.

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Agreed action

24. Within one month of my decision the Council should:
• apologise to Mr C and his son;
• pay Mr C and his son £900;
• send a memo to officers dealing with education, health and care plans to remind them of the need to ensure reviews take place promptly after 12 months and of the timescales required for issuing final plans; and
• send a memo to officers dealing with provision of education to children out of school to ensure they are aware of the need to work with parents and, where relevant, to put in place a clear plan to increase education over time and to assess the provision in place.
25. Within two months of my decision the Council should have met with Mr C and drawn up a plan for his son’s education going forward (subject to the tribunal proceedings having completed).

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Final decision

26. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman