Summary: Mrs B says the Council failed to put in place provision in her son’s education, health and care plan, failed to provide oversight of her son’s education other than at school programme, delayed issuing an education, health and care plan following the annual review and failed to properly consider her complaint. The Council delayed addressing missing provision in the education, health and care plan, failed to properly oversee the plan to ensure the provision was in place and delayed completing an annual review. The Council delayed considering the complaint but there is no evidence it failed to properly consider it.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• failed to put in place some of the provision in her son’s education, health and care plan (EHCP);
• failed to properly oversee her son’s education otherwise than at school (EOTAS) programme;
• delayed issuing the EHCP following an annual review in January 2022; and
• failed to properly consider her complaint.
2. Mrs B says the Council’s actions means she has had to spend a lot of time dealing with the Council and sorting out her son’s provision which has impacted on her mental health. Mrs B says her son has also missed out on support which has impacted on him.

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What I have and have not investigated

3. Mrs B has raised concerns about matters going back, in some instances, to 2018. In other instances, Mrs B complains about ongoing failures since 2019 and 2020. I am restricting the Ombudsman’s investigation to the period from May 2021 onwards. That is 12 months before Mrs B complained to the Council. That is because the Ombudsman will not normally consider a complaint about matters which took place more than 12 months ago. I see no reason to exercise the Ombudsman’s discretion to consider the period before May 2021 given Mrs B submitted complaints about other matters in 2021. I therefore see no reason why Mrs B could not have complained about these matters before May 2022.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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)
8. 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

9. As part of the investigation, I have:
• considered the complaint, Mrs B's comments and the documentary evidence she provided;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

11. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only a tribunal can do this.
12. The Council is responsible for making sure the arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
13. The special educational needs code of practice (code of practice) says the process of EHC needs assessment and EHCP development must be carried out in a timely manner. The time limits set out in the code of practice are the maximum time allowed. However, steps must be completed as soon as practicable.
14. The code of practice says the whole process of EHC needs assessment and EHCP development, from the point when an assessment is requested (or a child or young person is brought to the local authority's attention) until the final EHCP plan is issued, must take no more than 20 weeks, subject to some exemptions.
15. The code of practice says the first review must be held within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review. The local authority's decision following the review meeting must be notified to the child's parent or the young person within four weeks of the review meeting.
16. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHCP as it is, amend it, or cease to maintain it, 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.
17. 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.

What happened

18. Mrs B’s son has special educational needs and is deaf. Mrs B’s son has had an EHCP for some time with detailed provision in it. Mrs B’s son began struggling in a school environment and began receiving EOTAS. As part of the provision in his EHCP the Council held monthly multidisciplinary team (MDT) meetings to oversee the provision in the EHCP. Those meetings initially took place monthly and were changed to half termly at Mrs B’s request in July 2021.
19. The allocated occupational therapist stopped working with Mrs B’s son in October 2020. After initial attempts to identify an alternative failed the Council asked Mrs B in June 2021 which providers she would like the Council to contact. Mrs B provided details in July 2021 and the Council commissioned that occupational therapy provider to start in September 2021.
20. In December 2021 the Council tried to identify a provider for low arousal training, which was part of the provision in Mrs B’s sons EHCP. The Council later identified a provider and the training took place in July and September 2022.
21. The annual review for Mrs B’s son’s EHCP took place on 11 January 2022. The Council told Mrs B on 3 February it intended to amend the EHCP.
22. Mrs B contacted the Council in March 2022 to say some of the provision in her son’s EHCP had not been in place for more than a year, referring to the lack of EOTAS coordinator and no educational psychologist as the previous one had left. Mrs B also chased the Council for the draft EHCP.
23. The Council issued a draft EHCP on 16 March. Mrs B provided her comments in April 2022 and the Council sent Mrs B a final EHCP on 6 May.
24. Mrs B contacted the Council in May 2022 to tell it as the Council had not arranged for a deaf person to work with her son she had identified someone to work on a voluntary basis. Mrs B asked the Council to pay an hourly amount to enable this to continue. The Council approved that in June.
25. An MDT meeting took place on 5 October. Following that meeting Mrs B raised concerns about the educational psychologist. The Council did not have any concerns about the actions of the educational psychologist but decided to change the one allocated as it was clear the relationship with Mrs B had broken down.
26. In October 2022 the Council made attempts to identify provision of emotional literacy training which was required as part of Mrs B’s son’s EHCP. Suitable training was subsequently identified and will take place later this year.
27. The Council has contacted the NHS to enquire about cCMV training, which is also in the EHCP. The Council has also appointed an EOTAS liaison officer to provide dedicated support for EOTAS students. The Council has also increased the provision for the deaf adults working with Mrs B’s son to make up some of the missed hours.

Analysis

28. Mrs B says the Council failed to put in place various parts of her son's provision in his EHCP. The Council accepts it failed to put in place the following provision:
• occupational therapy between May and September 2021;
• an educational psychologist between December 2021 and April 2022;
• the allocated educational psychologist failed to attend all MDT meetings up to December 2021 when she left;
• a deaf adult for Mrs B’s son from May 2021, with the result Mrs B identified her own person to support her son. The Council then delayed paying that person;
• low arousal training between May 2021 and summer 2022;
• emotional literacy training from May 2021 with this not planned to take place until after May 2023; and
• cCMV training for staff from May 2021 onwards with no clear date for when this will begin.
29. Failure to put in place those provisions means Mrs B’s son missed out on elements of his EHCP since May 2021. That is fault. I am particularly concerned about the failure to ensure some of these provisions were in place because it is clear from the Council's response part of the problem here has been failure to follow up on referrals when replies were not received and failure to have adequate handover between officers dealing with the case. That is particularly concerning given Mrs B’s son has a detailed EHCP which provides for oversight from regular MDT's meetings. I would have expected in those circumstances for the Council to have had a better understanding of the gaps in provision for Mrs B’s son and to have acted to ensure missing provision was followed up on promptly and arrangements made to put the provision in place.
30. I am also concerned in many cases the Council only made attempts to identify suitable provision once Mrs B became involved. In fact, for occupational therapy provision the Council asked Mrs B to identify suitable occupational therapy providers. As it is the Council's responsibility to ensure provision in an EHCP is in place I would have expected the Council to know who to contact to arrange occupational therapy. It should not have fallen to Mrs B to identify the providers. Nor should it have fallen to Mrs B to prompt the Council to take action to put provision in place. All of that is fault and has led to Mrs B having to go to significant time and trouble to identify provision when that should have been the Council's responsibility.
31. In terms of the failure to ensure proper coordination of Mrs B’s son's provision, as I said earlier, the MDT process itself is in place to monitor that. That is the case irrespective of the named individual identified to coordinate. Each MDT meeting receives updates on what is happening with the provision for Mrs B’s son and that, alone, should have allowed a proper coordination of the provision in his EHCP. Clearly that failed in Mrs B's case because her son has been without all his provision for some time. That is fault. I note though the Council has now put in place a new person to oversee the MDT process. I hope that will ensure the same issues do not occur again.
32. Mrs B says the educational psychologist allocated to her son in April 2022 was not suitable. Mrs B says this was because the educational psychologist did not have sufficient knowledge and experience of dealing with children with complex issues, including deafness. While I understand Mrs B's concern, it is not for the Ombudsman to decide whether the allocated educational psychologist was suitable. It is clear the Council has considered Mrs B's concerns about the suitability of that educational psychologist but does not share those concerns. That is a matter of judgement and it is not one the Ombudsman can comment on.
33. I understand Mrs B's concerns though given she mentions difficulties between her and the educational psychologist at a meeting in October 2022. I am aware following that meeting the Council allocated a different educational psychologist. I have seen no evidence though to suggest the Council changed the educational psychologist because it had concerns about her suitability. Rather, the evidence I have seen satisfies me the Council changed the educational psychologist as there had been a breakdown in the relationship between her and Mrs B. As I have made clear, it is not my role to comment on whether the educational psychologist was suitable. Nor could I reach a safe conclusion about whether the educational psychologist acted inappropriately during the meeting in October 2022 as there is no video or audio recording of the meeting. I therefore have no grounds to criticise the Council.
34. Mrs B says the Council delayed issuing her son’s EHCP following the review in January 2022. The Council is required to issue a final EHCP within eight weeks of the amendment notice. What that means is the Council should have issued the final EHCP within eight weeks of 3 February 2022. Clearly the Council failed to do that as it did not issue the final plan until 6 May 2022. That delay also then delayed Mrs B receiving her right of appeal. Failure to adhere to the timescale code of practice is fault.
35. Mrs B says the Council failed to properly consider her complaint and also required her to provide a shorter version of the complaint. Having considered the documentary evidence I note the Council summarised Mrs B’s complaint into a shorter version. It is clear Mrs B was not happy with that as she had set out what she considered to be a detailed complaint and expected the Council to respond to each individual point. I understand why Mrs B would have wanted the Council to proceed in that manner. However, it is not fault for the Council to create a complaint summary provided that in responding to the complaint the Council responds to all the elements it has agreed to investigate. In this case that would exclude complaints about matters which occurred more than 12 months before the complaint to the Council. That is also the same process the Ombudsman uses. That is therefore not fault.
36. I appreciate Mrs B expected the Council to respond to each individual point she raised in her complaint when setting out its complaint response. There is no requirement for the Council to respond in that manner and provided the Council addresses the issues raised in the complaint in the complaint response it is not fault. In this case I am satisfied the Council’s complaint responses dealt with the issues raised in the complaint from Mrs B and as there is no requirement for the Council to address each individual point there are no grounds on which I could criticise it.
37. Mrs B says the Council told her she needed to provide her complaint in a document no longer than two sides of A4. I have seen no evidence the Council required Mrs B to put her complaint in that format. The Council did refer in its communications with Mrs B to its request for complaints be no longer than two sides of A4. I understand the difficulties in dealing with lengthy complaints. However, I would be concerned if the Council refused to accept a complaint which was longer than two sides of A4. As I said in the previous paragraph, I would instead expect the Council to summarise the complaint under the relevant headings.
38. In this case I have seen no evidence to suggest the Council told Mrs B it would not accept her complaint unless it was two pages long. I therefore do not consider the Council’s comments to Mrs B warrants a finding of fault. However, I would highlight to the Council that if it were to decline to take a complaint on the basis it was too long that would likely open the Council to criticism from the Ombudsman.
39. Mrs B says the Council said it could not reach a conclusion on some parts of her complaint as it did not have evidence on file. Mrs B raises concerns about that because she says she had the evidence available for the Council to consider. Having considered the complaint responses from the Council I note the issue on which the Council could not reach a conclusion was in relation to the emotional literacy training. The Council explained it could not say why there had been a delay delivering the training as the managers involved at the time were no longer working for the Council. I am satisfied though despite that the Council made clear it accepted the emotional literacy training was not in place. I therefore do not criticise the Council here.
40. Mrs B says the Council inappropriately allowed officers who were part of the team she was complaining about to respond to the complaint at stage one. The Council’s complaints procedure says the complaint response will be provided by the appropriate line manager or service manager. In this case the lead SEND officer responded to the complaint at stage one. That is not in accordance with the Council’s complaints procedure and is fault. I recommend the Council remind officers dealing with complaints of the need to ensure the officer that responds at stage one is the officer authorised to do so by the Council’s complaints procedure.
41. Mrs B says the manager that responded at stage two of the complaints process had been involved at stage one as he had reviewed the stage one response before it was sent. Mrs B therefore raises concerns about the impartiality of the manager that dealt with the complaint at stage two. I understand Mrs B’s concerns here. While I appreciate the manager that responded at stage two is the one that would normally respond to complaints at that stage the Council knew he had been involved in reviewing the stage one complaint response. In those circumstances I would have expected the Council to allocate a different officer. Failing to do that is fault. The Council accepts it should have used a different officer. I recommend the Council remind complaints officers in future of the need to ensure the person that considers a stage two complaint is someone that has not previously been involved in the complaint process.
42. Mrs B says the Council delayed responding to her complaint at stage two. The Council accepts there were considerable delays here. Mrs B put in her complaint on 25 June 2022 but did not receive an acknowledgement from the Council until 23 August 2022, which is almost two months later. The Council then did not respond to the complaint until 13 October. That timescale is not in accordance with the published timescales in the Council’s complaints procedure and is fault. I am also concerned the Council failed to contact Mrs B to tell her there would be a delay when the original deadline for response expired. That is fault and meant Mrs B had to go to further time and trouble to chase the Council.
43. I am satisfied the faults set out in this statement mean Mrs B’s son missed out on some of the provision in his EHCP from May 2021 (as the date from which my investigation begins). In some instances that delay is ongoing. I am also satisfied the failures by the Council have led to Mrs B having to go to considerable time and trouble not just to pursue her complaint but also to keep a check on what provision was in place, chase the Council to sort out missing provision and, in more than one instance, having to identify suitable provision herself and make arrangements for that provision to be put into place. It is clear the failures have caused Mrs B significant distress. To recognise the impact on Mrs B I recommended the Council pay her £750. I have increased that amount from what the Ombudsman would normally recommend to reflect the very considerable time and trouble Mrs B had to go to in order to sort out provision for her son. The Council has agreed to my recommendation.
44. The Council has offered £100 per month for the failure to put in place occupational therapy and an educational psychologist for the periods referred to in paragraph 28. I do not consider that a satisfactory remedy to reflect the missing provision. That is because Mrs B’s son missed out on more than just educational psychology and occupational therapy provision. There was also a delay putting in place low arousal training for those working with Mrs B’s son and there is still the outstanding issues of the emotional literacy training and the cCMV training. In addition, the Ombudsman would not normally recommend a financial remedy of less than £200 a month when there is missing special educational needs provision.
45. Taking all that into account I consider an appropriate remedy would be for the Council to pay Mrs B £200 per month for the missing provision between May 2021 and April 2022, which makes a total of £2,400. I do not make any recommendation for an additional remedy for the failure to put in place a deaf adult to support Mrs B’s son given the Council has put in place additional hours to make up for the provision Mrs B’s son missed and as Mrs B arranged some provision herself. I consider an additional payment of £600 is appropriate though for the ongoing delay carrying out the emotional literacy training and cCMV training. That makes a total financial remedy of £3,750. The Council has agreed to my recommendation.
46. I also make some recommendations in relation to procedural issues that have occurred in this case. In making those recommendations I have taken into account the fact the Council has now appointed an EOTAS liaison officer who I hope will ensure oversight of Mrs B’s son’s EHCP is improved. I recommended though the Council monitor the provision to Mrs B’s son through the MDT process over the next two terms to ensure problems do not recur and that any issues are followed up on. If issues are identified the Council should then consider what additional measures it can take to ensure proper oversight of the EHCP. In addition, I recommended the Council chase up the NHS response in relation to the cCMV training and ensure plans are identified to put that in place at least within the first term of the new school year. I further recommended the Council ensure there is a proper handover process when officers dealing with special educational needs cases leave so the officer taking over the case is aware of the outstanding issues. The Council has agreed to my recommendations.

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Recommended action

47. Within one month of my decision the Council should:
• apologise to Mrs B;
• pay Mrs B £3,750;
• chase up the NHS response in relation to the cCMV training and then put in place a plan to ensure it is arranged and delivered at least within the first term of the new school year;
• remind officers dealing with EHCPs of the need to follow the timescales set out in the code of practice when issuing EHCPs following reviews; and
• remind officers dealing with complaints of the need to ensure the person responding to complaints at stage one is the appropriate line manager or service manager, in accordance with the Council’s complaints procedure; and
• remind officers dealing with complaints of the need to ensure that when responding to a complaint at stage two an alternative manager is identified where the person that would normally be tasked with responding to the complaint has already had involvement at an earlier stage of the complaints process.
48. Within two months of my decision the Council should:
• ensure there is a proper handover process when officers dealing with special educational needs cases leave so the officer taking over the case is aware of the outstanding issues.
49. The Council should also:
• monitor the provision to Mrs B’s son through the MDT process over the next two terms to ensure problems do not recur and that any issues are followed up on. If issues are identified the Council should then consider what additional measures it can take to ensure proper oversight of the EHCP.

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Final decision

50. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman