Summary: The Council delayed reviewing Mr C’s son’s education, health and care plan, delayed issuing a final plan and delayed referring his son for a mentor. Those failures caused Mr C frustration but likely did not affect the provision for his son. An apology 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 a final plan; and
• delayed referring his son for a mentor.
2. Mr C says fault by the Council means his son has missed out on provision.

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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 our final 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. At that point Mr C’s son had stopped engaging with tutors which were being provided to him at home.
9. The tribunal considered Mr C’s appeal in January and February 2020. The Council received the tribunal’s decision on 7 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.
10. The Council sought dates from Mr C for the annual review in July 2020. The annual review took place in September 2020.
11. A recommendation from tribunal and in the May 2020 EHCP was for the Council to refer Mr C’s son for a mentor. In September 2020 the Council apologised as it could not establish whether it had made the referral for a mentor. The Council made a referral for a mentor at that point. I understand the current position is the Council has put in a request for a mentor but the organisation it has referred to cannot put in place support at the moment partly due to Covid 19 and partly because Mr C and his family are shielding.
12. On 4 November the Council decided to amend the EHCP and issued an amendment notice. The Council issued the final plan on 15 January 2021.
13. Mr C’s son is currently not accessing any education provision and Mr C says his son will not be ready to do so until after a medical assessment to establish his needs. The first part of that medical assessment began 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 completing the review of his son’s EHCP and then delayed issuing the final plan. As I said in paragraph 14, the code requires the Council to review EHCP’s within 12 months of the previous review. In Mr C’s son’s case the Council should have reviewed the EHCP in April 2020. The Council accepts it failed to do that and has apologised. Failure to carry out the review within 12 months is fault. However, I consider the apology the Council has given a suitable outcome. That is because I am satisfied the final EHCP is largely the same as the one in place following the tribunal in May 2020. Taking that into account and the fact Mr C accepts his son is not ready to engage with any form of education pending some medical input I do not consider he likely missed out on any provision due to the delayed review. In those circumstances I consider Mr C’s injustice is limited to his frustration the Council failed to follow the process properly. I consider an apology satisfactory remedy for that.
18. Mr C says the Council delayed issuing a final EHCP following the September 2020 review. The Council accepts it did not meet the timescales set out in paragraphs 15 and 16 of this statement. The Council says it delayed issuing the final EHCP so it could include the changes Mr C asked for to ensure he was happy with the final EHCP and to prevent an appeal. Mr C disputes he asked for amendments. In any event, although the code encourages collaborative working it should not be at the cost of keeping to the timescales. Failure to keep to the timescales is therefore fault. In this case though I do not consider delay issuing the final EHCP caused Mr C a significant injustice, other than his frustration. That is for the reasons I gave in paragraph 17. Because the final EHCP is largely the same as the May 2020 plan and Mr C’s son is not yet ready to access education even if online or at home I am satisfied he has not missed out on any provision. I therefore recommended the Council apologise for the delay. The Council has agreed to my recommendation.
19. Mr C says the Council delayed making a referral for a mentor for his son. The tribunal recommended a referral for a mentor, as did the EHCP issued in May 2020. Despite that I have seen no evidence to suggest the Council completed the referral until September 2020. The Council accepts it delayed making the referral. Delay making the referral until September 2020 is fault. Given Covid 19 though and the inability of organisations to provide face-to-face support throughout much of 2020 I do not consider it likely Mr C’s son missed out on provision due to the late referral. I say that particularly given I note the family were shielding and declined resuming face-to-face support for their other son from the same organisation when it was offered. I therefore consider Mr C’s injustice is limited to his frustration about the delay. In those circumstances I consider the apology the Council has already made satisfactory remedy.

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Agreed action

20. Within one month of my decision the Council should
• apologise to Mr C for the delay issuing the final plan; and
• provide evidence to the Ombudsman that the Council has arranged or carried out training for relevant officers to cover the need to ensure reviews of education, health and care plans take place promptly after 12 months and of the timescales required for issuing final plans.
21. The Council has already apologised for the delay completing the review and referring Mr C’s son for a mentor.

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Final decision

22. I have completed the investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman