Summary: Ms X complains about how the Council dealt with Mr Y’s Education, Health and Care plan. The Council is at fault as it failed to consider if it should hold an interim review of Mr Y’s plan following his discharge from hospital, failed to issue a final plan between early 2019 and November 2020, failed to ensure Mr Y received the provision in his plan from November 2020 and caused Mr Y to miss some home tuition. The Council’s record keeping was also poor. The Council has agreed to remedy the injustice to Ms X and Mr Y by making a payment of £3000 to them plus the refund of gym fees paid by Ms X.

The complaint

1. Ms X complains that the Council:
1. Failed to ensure her son, Y, received the provision set out in his Education, Health and Care Plan over a number of years which has disadvantaged him.
2. Failed to amend Y’s Education, Health and Care plan between 2016 and 2018.
3. Delayed in reviewing Y’s Education, Health and Care plan following his discharge from hospital in December 2018 so he was disadvantaged from not having an up to date plan.
4. Delayed in providing a personal budget for Y between February 2019 and July 2020;
5. Failed to ensure Y received the provision set out in his current Education, Health and Care plan.
6. Offered an inadequate payment of £1550 which is not sufficient to reflect the damage caused to Y’s education and the distress caused to Ms X.

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What I have investigated

2. I have investigated complaints c to f. I have not investigated complaints a and b for the reasons set out at the end of this statement.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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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How I considered this complaint

7. I have:

• Considered the complaint and the information provided by Ms X;
• Discussed the issues with Ms X;
• Made enquiries of the Council and considered the information provided;
• Invited Ms X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the young person’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
9. Paragraph 9.166 of the code provides that the local authority must review an EHC plan as a minimum every 12 months.
10. 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 young person and the school. If the plan needs to be amended, the local authority should start the process of amendment without delay.
11. Following representations from the young person’s parent, and if the local authority decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the original amendment notice.
12. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in section F of the EHC plan has not been provided, or where there have been delays in the process.

What happened

13. Ms X’s son, Y, has a EHC plan and attended college. In 2018 Y was hospitalised following a serious medical event which caused a disability to him. Y was discharged from hospital in late 2018.
14. In January 2019 the Council referred Y for home tuition as he was unable to return to college at that time.
15. The Council’s locality panel agreed funding for 25 hours per week of Y’s home tuition from 29 January 2019 to 30 August 2019. Following recommendations from an educational psychologist in preparation for Y’s annual review, the Council agreed to provide a personal budget for equipment for Y’s studies. The Council has provided evidence to show the Y’s home tuition started in late February 2019. The Council did not provide the personal budget.
16. The Council cannot provide a record of an annual review meeting. However, the Council notified Ms X in May 2019 that it had agreed a home based programme for Y. In August 2019 the Council issued a notice of amendment to amend Y’s EHC plan. This proposed amending Y’s provision to reflect he was receiving home tuition, and to identify a suitable placement for Y in September 2019. The Council’s records show its placement panel agreed 39 weeks of home tuition for Y. The decision record notes Ms X said Y wanted to return to college in September 2020 and wanted home tuition to continue in the meantime.
17. There is no evidence the Council issued a final EHC plan for Mr Y following its notice of amendment. In December 2019 the Council issued another notice of amendment. The Council has said this was following an annual review requested by Ms X as the amended EHC plan did not reflect Mr Y’s health needs. There is no record of the annual review.
18. The Council’s records show its locality panel agreed home tuition for Mr Y in January 2020 until April 2020. Its records note Mr Y missed two weeks of tuition and Ms X was seeking a goodwill gesture or payment for the weeks missed. The records also show the Council referred Mr Y’s home tuition to the locality panel again in April 2020 for a further six weeks of tuition.
19. The Council wrote to Ms X in late June 2020 to advise it would pay the personal budget to support Mr Y’s education.
20. The Council held an annual review in July 2020. There is no record of the review. Ms X’s solicitor wrote to the Council in September 2020 to complain the amended EHC plan was not issued to Ms X for seven weeks. She also raised concerns about the content of the plan. The Council issued Mr Y’s final EHC plan in early November 2020. Ms X disputes this was a final EHC plan as it refers to notice of amendment and Mr Y’s placement to be named.
21. Ms X made a complaint about Mr Y’s EHC plan not meeting his needs over a number of years. The Council responded to Ms X’s complaint in November 2020. It acknowledged there had been unacceptable delays in securing the provision in section F of Mr Y’s EHC plan. It also acknowledged it had delayed delivering the agreed personal budget. The Council apologised for any upset and distress caused.
22. The Council offered a payment of £1550 to Ms X. This comprised:

• £300 for the delay in issuing the notice of amendment for Mr Y’s EHC plan in 2020. The Council has said the delay was three months.
• £1000 for the delay of 1 year in providing the personal budget
• £250 for avoidable time and trouble caused to Ms X and Mr Y.

23. Ms X did not accept the payment as she considered it was insufficient to reflect the injustice caused to Mr Y.
24. Ms X says the Council has also failed to ensure Mr Y has received the provision in section F of his EHC plan since November 2020. It has not paid a personal budget to allow him to attend a gym and has not entered him for an exam. In response to my enquiries the Council has acknowledged it failed to provide Mr Y with the personal budget to allow him to attend a gym. It has said it did not enter Mr Y for an exam as Ms X was unhappy with the tuition he was receiving and he will be entered when he is ready to sit the exam. Ms X disputes this was the case.

Analysis

25. The Council’s records are poor so it is difficult to establish the facts of this case. Based on the information I have seen I consider there is fault in how the Council dealt with Mr Y’s EHC plan since his discharge from hospital in late 2018.

Delayed in reviewing Y’s EHC plan following his discharge from hospital

26. Mr Y’s circumstances significantly changed following his hospitalisation in 2018. I would therefore have expected the Council to consider if it should hold an interim review in early 2019 to determine if the EHC plan continued to meet his needs. There is no evidence to show it gave any consideration to holding an interim review. This is fault.
27. The Council is unable to provide records of any annual reviews held for Mr Y in 2019 and 2020. Ms X disputes the annual reviews took place. On balance, I consider the Council started the review process as it issued a notice of amendment for Mr Y’s EHC plan in late August 2019 which was amended to reflect Mr Y’s health and amended provision.
28. But the Council failed to complete the process. In accordance with the SEND code the Council should have considered any comments from Ms X and Mr Y on its amendments and issued the amended EHC plan within eight weeks which would have been late October 2019. There is no evidence to show it met this timescale. The Council issued a further notice of amendment in early December 2019 but there is no evidence to show it issued the amended EHC plan within eight weeks. This deadline would have been early February 2020 and before the COVID-19 pandemic. So, I consider the failure to issue the final EHC plan is fault.
29. The Council has acknowledged it delayed in issuing the notice of amendment to Ms X following the annual review of July 2020. The time taken to issue the final EHC plan in early November 2020 was excessive and not in accordance with the SEND code. This is fault. As a result of the delays by the Council, Mr Y did not have an up to date EHC plan after his change of circumstances in late 2018 until November 2020.
30. Ms X disputes the EHC plan issued in November 2020 is a final plan for Mr Y. The plan refers to a notice of amendment and Mr Y’s placement to be named in the final plan. The Council has said these are typographical errors and the plan is the final version. On balance, I consider the plan is the final EHC plan and the references to the notice of amendment and placement to be named are errors. The Council notified Ms X that the plan was final and included details of how to appeal to the SEND Tribunal which shows it was the final plan. Ms X could have appealed to the SEND Tribunal if she was unhappy with the content of the EHC plan.

Delay in providing personal budget between February 2019 and July 2020

31. In response to Ms X’s complaint the Council acknowledged it delayed in providing the agreed personal budget for equipment between February 2019 and July 2020.

Delivery of provision in current EHC plan

32. The Council has also failed to ensure all the provision in section F of Mr Y’s EHC plan has been delivered. The Council has acknowledged it failed to provide a personal budget to enable Mr Y to attend a gym. The Council has said it did not arrange Y’s exam as Ms X was unhappy with the tuition. The Council has also not evidenced that Mr Y has received all the provision in section F such as the specified independent travel training. This is fault.

Missed home tuition

33. The Council referral to the locality panel for approval of Mr Y’s home tuition in January 2020 was unnecessary as the placement panel approved 39 weeks of home tuition for Mr Y in August/September 2019. The unnecessary referral caused Mr Y to miss two weeks of home tuition.

Injustice to Ms X and Mr Y

34. As a result of the delays by the Council, Mr Y did not have an up to date EHC plan after his change of circumstances in late 2018 until November 2020. The Council provided home tuition to Mr Y from January 2019 so he was not significantly disadvantaged by this delay. But the delay caused further distress and avoidable time and trouble to Ms X.
35. The Council’s delay in providing the personal budget to allow Mr Y to attend the gym from November 2020 caused significant injustice to him. Mr Y could not have regularly attended the gym between January and April 2021 when the national lockdown was lifted. But Mr Y missed out on attending the gym in December 2020 and from April 2021 which will have disadvantaged him. Ms X has also provided evidence to show she has now paid for his membership so she has suffered financial loss.
36. The Council offered a remedy of £1550 to Ms X in response to her complaint to reflect the distress caused by the delay in providing the personal budget and delay in issuing the notice of amendment. The Council has also agreed to offer:

• a further £300 to acknowledge the distress and avoidable time and trouble caused to Ms X.,
• £150 to acknowledge Mr Y missed two weeks of tuition;
• £1000 to acknowledge Mr Y was disadvantaged by the Council failing to provide the personal budget for the gym.

37. This makes a total payment to Ms X and Mr Y of £3000. The Council should also ensure Ms X is reimbursed for the cost of the gym membership which would have been covered by the personal budget. Ms X has said she also had to pay for Y’s travel to the gym but it is not proportionate to ask the Council to reimburse these payments. This is because the total remedy is appropriate and proportionate to acknowledge the injustice caused to Ms X and Mr Y.
38. The Council has not provided evidence to show Ms X did not want Mr Y to sit his exam during 2020/21 academic year and Ms X disputes this was the case. But I will not pursue this matter further as I cannot achieve a higher remedy. Similarly, I will not pursue the matter of whether the Council has provided all the provision in section F, including the travel training, for the same reasons
39. The annual review of Mr Y’s EHC plan should have taken place in or around July 2021. The Council should ensure this takes place and adheres to the statutory timescales following the review.

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Agreed action

40. That the Council will:
1. Send a written apology to Ms X and Mr Y for the distress caused by the delay in issuing Mr Y’s EHC plan between early 2019 and November 2020 and disadvantage to Mr Y by failing to provide the personal budget to allow him to attend the gym.
2. Make a payment of £3000 to Ms X and Mr Y which comprises:

• £1550 offered by the Council to acknowledge the distress and avoidable time and trouble caused by the delay in providing the personal budget and issuing the notice of amendment;
• £1000 for the disadvantage caused to Mr Y by failing to provide the personal budget to allow him to attend the gym;
• £150 to acknowledge Mr Y missed two weeks of home tuition;
• £300 to acknowledge the distress and avoidable time and trouble caused to Ms X by the delay in issuing Mr Y’s final EHC plan and personal budget for the gym.
3. Reimburse Ms X the cost of Y’s gym membership which should have been provided as a personal budget.
4. Carry out the annual review of Y’s EHC plan and complies with the statutory timescales for either confirming or amending Mr Y’s EHC plan.
5. Review the action taken to deliver section F of Y’s EHC plan since November 2020 to ensure the Council is delivering all the provision and draws up an action plan to ensure the provision is delivered going forward. The Council should provide a copy of the review and action plan to the Ombudsman and Ms X when completed.
6. Review its procedures for dealing with EHC plans to ensure they are in accordance with the SEND Code. The review should include procedures to:
• ensure the delays experienced by Mr Y in issuing his EHC plan do not recur
• ensure officers consider if they should hold an interim review in the event of a child/young person’s change of circumstances.
• ensure provision set out in section F is delivered;
• improve the Council’s record keeping by ensuring it has an audit trail of how it has dealt with a child’s/young person’s EHC plan including records of the annual reviews.

The Council should provide a copy of its revised procedures to the Ombudsman and explain how it will improve its practice in this area.

41. The Council should take the action set out at a) to d) within one month of my final decision. It should take the action at e) within two months of my final decision and the action at f) within six months of my final decision.

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Final decision

42. The Council is at fault as it failed to consider if it should hold an interim review of Mr Y’s plan following his discharge from hospital, failed to issue a final plan between early 2019 and November 2020, failed to ensure Mr Y received all the provision in his plan from November 2020 and caused Mr X to miss some home tuition. The Council’s record keeping was also poor. The Council has agreed to remedy the injustice to Ms X and Mr Y in an appropriate and proportionate way. I have therefore completed my investigation.

Parts of the complaint that I did not investigate

43. I have not investigated complaints a) and b). This is because it was open to Ms X to raise complaints with us before now if she was unhappy with Y’s education provision over several years and how the Council dealt with Y’s EHC plan between 2016 and 2018. Ms X would have been aware of the issues at the time so I consider it is reasonable to expect her to have made a complaint about these matters sooner. I also consider I could not reliably investigate these complaints due to the passage of time.

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Investigator's decision on behalf of the Ombudsman