Summary: Mr D complained about the Council’s handling of his three children’s Education, Health and Care plans. The Council agreed it caused delays in reviewing and amending their plans, and it failed to provide some special educational needs provision. This was fault. It will apologise to Mr D and his children, and make payment to acknowledge the distress, time and trouble, and loss of provision they experienced.

The complaint

1. The complainant, whom I shall refer to as Mr D, complained about the Council’s handling of his three children’s Education, Health and Care (EHC) plans. He said it:
• failed to follow the SEND tribunal’s directions, issue final amended EHC Plans, and review their EHC Plans within the statutory timescales; and
• communicated poorly with him and failed to respond to his complaints as set out in its policy
2. As a result, Mr D said his children experienced distress due to the uncertainty caused and had a loss of special educational needs provision. He also said he experienced distress and had time and trouble to bring his concerns to the Council’s attention.

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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 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)

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How I considered this complaint

5. As part of my investigation, I have:
• considered Mr D’s complaint and the documents he provided, including the Council’s responses to his complaints;
• discussed the complaint with Mr D; and
• considered the law and guidance relevant to the complaint.
6. Mr D 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

Education, Health and Care Plans

8. The Children and Families Act 2014 sets out support for children with special educational needs and disabilities (SEND). The ‘Special educational needs and disability code of practice’ (the Code) gives more details about how councils, schools and others should carry out their duties.
9. A child with special educational needs may have an EHCP. This sets out the child’s needs and how they should be met. The EHCP is set out in sections. We cannot direct changes to the sections about education or the setting named. Only the SEND tribunal can do this.
10. Councils must ensure EHCP provision is met. We can look at complaints about this. We can investigate where a council has not ensured provision, or where there have been delays in the process.
11. The Code says councils must review EHCPs at least yearly. The review should focus on a child’s progress towards achieving the plan outcomes and consider whether the outcomes and supporting targets remain appropriate. Councils can consider holding an early review if there is a change in the child’s circumstances.
12. The Code says EHCP reviews are generally most effective when led by a child’s school as they will know the child best and have most contact with their family. It explains councils should provide a list of children and young people who will need a review of their EHCP that term to the heads of their schools.
13. The child’s parents, a representative of the school, a representative of the Council, a health service representative, and a social care representative should all be invited and given two weeks’ notice.
14. Within two weeks of the meeting, the school must prepare and send a report to everyone who was invited to the meeting. The report must set out recommendations on any amendments to the EHCP.
15. The council has four weeks from the review meeting to decide whether to maintain or amend the EHCP. It must present proposed changes to parents with an opportunity to comment and begin any amendments without delay.
16. Councils should also tell parents they have a right to appeal the final EHCP to the SEND Tribunal.

What happened

17. Mr D has three children (Child A, Child B, and Child C) who all have special educational needs (SEN). Mr D moved to the Council’s area in 2018, and the Council has issued each of his children with an EHC plan since.
18. In 2021 Mr D appealed each of his children’s EHC plans to tribunal, as he disagreed with some of the SEN provision set out in their plans.
19. In Autumn 2021 the Tribunal considered Mr D’s appeals and decided what provision should be included in his children’s EHC plans.
20. The Council issued amended final EHC plans for Mr D’s children by October 2021.
21. In March 2022 the Council completed its annual reviews for Mr D’s children’s EHC plans.

Mr D’s complaints

22. Mr D complained to the Council in Summer 2021 and again in the Autumn 2021. He said it had wrongly stopped engaging with him since April 2021, and it:
• (Child A) failed to arrange a transition meeting and a plan to support Child A’s transition into college;
• (Child A) failed to provide details on appealing its school transport decision and answer Mr D’s questions;
• (Child A) failed to provide Mr D with information about a referral for SEN support;
• (Child A and Child B) failed to arrange annual reviews of the EHC plans as required within every 12 months;
• (Child B) failed to put a SEN summer provision and a direct payment in place, including refunding Mr D for services he had paid for;
• (Child B) failed to arrange a meeting to discuss Child B’s provision, including therapy, increase hours of online tuition, and provide him with a tablet;
• (Child B) failed to arrange a mentor as the current agency was unable to provide one;
• (Child B and Child C) failed to issue final amended EHC plans within the statutory timeframes after the tribunals decisions;
• (Child C) failed to provide an updated transition plan;
• (Child C) failed to send an apology relating to a previous Ombudsman decision regarding Child C.
• failed to respond to Mr D’s complaints as set out in its policy; and
• failed to properly respond to his subject access request.
23. In response the Council told Mr D it had stopped engaging with him in April 2021 due to incorrect internal advice to its Officer following Mr D’s EHC plan appeals to the tribunal. It accepted it was at fault on most points of Mr D’s complaints set out in paragraph 22. However, it explained:
• Child A’s transition meeting was not possible until his amended final EHC plan with his college named was issued. This happened in September 2021, but there was a short delay as Mr D wanted some professionals to attend;
• Child C’s transition plan did not require updating as she was doing well in school and she did not need or want the support;
• it found no fault in how it had handled Mr D’s complaints as it had responded to each of Mr D’s concerns; and
• it found no fault in how it had handled his subject access request.
24. Mr D was not satisfied with the Council’s response and apology. So, he asked the Ombudsman to consider his complaint.
25. In 2022 Mr D complained again to the Council about its delays in:
• completing the annual EHC plan reviews for his children;
• its decision not to amend Child C’s EHC plan following her annual review;
• issuing a draft EHC plan for Child B following his annual review; and
• issuing Child A’s amendment notice and draft EHC plan following his annual review.
26. In March 2022 the Council reviewed Mr D’s children’s EHC plans with input from professionals. It was found Child A and Child B should have some additional support, including occupational therapy support.
27. The Council told Mr D it had failed to meet the statutory timescales and failed to tell him about its delays. It apologised and said it was taking steps to ensure it meets statutory requirement in the future. It also offered a trial where Mr D sends a monthly email with updates and any changes in needs for his children to its case officer. The Council can then consider and action any concerns or changes without delay.

Analysis

28. The Council has agreed it was at fault on most points of Mr D’s complaint as set out in paragraph 22 and in paragraph 25. This means the Council was at fault for:
• not engaging with Mr D from April to August 2021;
• causing delays and failing to meet the statutory timescales for EHC plan reviews, issuing amended final EHC plans, communicating its decision on whether to amend EHC plans, issuing draft EHC plans, and issuing amendment notices following annual reviews;
• failing to arrange and implement Child A’s transition into college before the academic year commenced, including travel training;
• failing to provide SEN provision as set out in Child B’s EHC plan, which included some summer provision, an increase in hours of online tuition and a tablet; and
• failed to provide some information to Mr D about SEN referrals and the appeals process for school transport refusals.
29. Mr D also raised concerns about information sharing and his subject access request with the Council. However, issues about data and information sharing are not for the Ombudsman to consider. Mr D should bring such concerns to the attention of the Information Commissioner (ICO).
30. I found no fault in the Council’s complaints handling. This is because it responded to Mr D’s complaints as set out in its policy. However, the Council has agreed its communication could have been better and it wrongly stopped engaging with Mr D for four months in 2021.

Injustice

31. I have considered whether the Council’s apology for its faults was enough to remedy the impact these caused Mr D and his children.
32. I found the Council’s apology was not enough to remedy the injustice caused to Mr D and his children. This is because:
• Child A experienced some distress and uncertainty about his transition into college at the start of the academic year. This was because the Council did not engage with Mr D in the four months leading up to the transition into college, which was crucial to ensure his SEN were met from the outset;
• Child A had a loss of SEN provision as he did not receive some therapeutic interventions, occupational therapy, and speech and language therapy support, which he would have received earlier had it not been for the Council’s delays;
• Child B experienced some distress and a loss of SEN provision as the Council caused delays in providing him with increased hours of online tuition, a laptop and therapeutic interventions;
• Mr D experienced distress and uncertainty due to the Council’s failures to meet the statutory timescales for his children’s EHC plans and its failure to provide Child A and Child B some of the agreed SEN provision.
33. Mr D also has time and trouble to bring his concerns to the Council attention from Summer 2021 to March 2022.
34. The Council also failed to meet the timescales for issuing Child C’s final amended EHC plan and reviewing her plan. However, I found this only caused her a limited impact as she was doing well in school, and she was not engaging with the SEN provision. The Council’s apology was therefore enough to remedy the injustice this caused her.
35. I welcome the Council’s suggestion for Mr D to share any issues or needs his children may have each month with the Council’s case officer, and the Council will then review and action these within a month, as necessary. This may go some way to ensure any future delays or issues are addressed at an early stage.

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Agreed action

36. To remedy the injustice the Council caused to Mr D and his children, the Council should, within one month of the final decision:
1. apologise in writing to Mr D and his children, and pay Mr D £400 for the distress and uncertainty its failures to adhere to the statutory EHC plan processes caused them;
2. pay Mr D £750 to acknowledge the loss of special educational needs provision Child A and Child B missed out on due to the Council’s delays; and
3. pay Mr D an additional £250 for the time and trouble he had to bring his concerns to the Council’s and Ombudsman’s attention.

In total the Council should therefore pay Mr D £1,400.

37. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. provide the Ombudsman with the procedural changes the Council said it has made internally, and with schools, to ensure it meets the statutory timescales for reviewing EHC plans and issuing amended EHC plans to parents;
5. review how it keeps parents informed about any delays in the EHC plan process, and how it learns from these to prevent such delays in future; and
6. review its three-month trial with Mr D in which he were to provide his designated Council Officer with details about issues and needs for his children, and agree with Mr D whether to continue to trial.

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Final decision

38. There was fault which caused an injustice. The Council has agreed with my recommendations, it is on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman