The Ombudsman's final decision
Summary: Miss X complained about the Council’s delay in completing an Education, Health and Care Plan review for her son, Y, causing them distress and uncertainty. We found the Council at fault. We recommended it apologise to Miss X; pay her £300 for distress and uncertainty; pay her £100 for time and trouble and; complete Y’s EHCP review.
The complaint
Miss X complains the Council delayed completing an Education, Health and Care Plan (“EHCP”) review for her son, Y. And it delayed responding to her complaint, causing her and Y distress and uncertainty.
The Ombudsman’s role and powers
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) We can 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) 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.
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)
How I considered this complaint
I reviewed documents provided by Miss X and the Council.
I gave Miss X and the Council an opportunity to comment on my draft decision. I considered their comments before finalising my decision.
What I found
EHCP Annual Reviews The “Special Educational Needs and Disabilities Code of Practice 2015” provides statutory guidance to councils on meeting their duties to children with SEN.
Councils must review an Education, Health and Care Plan (“EHCP”) at least every 12 months.
Within 2 weeks of the review meeting the school must provide a report to the council with any recommended amendments.
Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content.
When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
Where the council does not agree the suggested changes it may still issue the final EHCP.
In any event the council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the amendment notice. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
The review of the EHCP should include the review of any existing personal budget. A personal budget is an amount of money identified by a council to deliver provision set out in an EHCP where the parent is involved in securing that provision.
A council must consider whether the amount it pays to the parent (under any direct payment arrangement) continues to be sufficient to secure the agreed provision.
There is no right to appeal the council’s decision on a personal budget.
Council’s complaint process The Council’s website says it will respond to a complaint within 10 working days. If it is unable to respond within 10 days it will explain why.
What happened The Council has provided a copy of Y's EHCP dated March 2020. This refers to a personal budget of £4340.00 for Y's school transport, for the period September 2019-2020.
Documents provided by the Council show it carried out an annual review in October 2020. However, it has not provided the Ombudsman with a copy of any EHCP issued following that review.
The Council carried out an annual review on 29 September 2021.
The school’s report to the Council included a request from Miss X for an increase in Y’s personal budget to cover the increased cost of his school taxi. Miss X also requested funds for a laptop to help Y with schoolwork at home.
The Council received the school’s report on 22 October.
The Council’s Local Management Team Panel considered Miss X’s requests on 26 October. The Panel decided the Council should: Ask Miss X for evidence of increased costs for transport; Speak to the relevant department about increasing the personal budget; Signpost Miss X to a scheme run by the Council, where she could apply for laptop funding.
There is no evidence the Council took the above actions.
On 10 November Miss X chased the Council for an update on the EHCP review.
There is no evidence it replied.
On 7 December Miss X complained she had not heard anything about the annual review. Further, she was now in debt to the taxi company as they had increased their costs.
Internal emails provided by the Council show it was looking into the annual review, personal budget and the transport issues. However, it did not communicate this to Miss X.
On 11 January 2022 Miss X complained she had not received a response to her complaint of 7 December, nor heard anything further about Y’s annual review.
On 19 January the Council asked Miss X for details of the increased taxi costs. Miss X provided these and asked for the Council to take over the payments to the taxi company.
On 20 January the Council sent a letter to Miss X. In summary this said: It had received the annual review report for Y and was pleased to note the progress made and the plans for the next twelve months.
It had received Miss X’s request for an increase in Y’s personal budget.
It confirmed it was reviewing her request and would be in touch when it had decided.
If Miss X had any concerns about this decision or Y’s EHCP she could contact the Council.
If it was unable to resolve Miss X’s concerns, Miss X had the right to appeal, within two months, to the SEND Tribunal.
This letter did not give Miss X notice of whether the Council would maintain, amend or discontinue the EHCP. And it did not mention Miss X’s request for funding for a laptop.
The Council responded to Miss X’s complaint on 28 January. It said: It had not received the annual review paperwork from the school until 22 October 2021 and had overlooked the additional page in which Miss X had requested an increase in the personal budget.
It had no record that a “no further action annual review letter” was sent to Miss X and had since sent one on 20 January.
It was looking into the request for an increase in personal budget as well as looking into the funding for a laptop for Y.
It would backdate any increase in transport costs for Y, if appropriate, but would confirm this.
It apologised for the details missed in the annual review paperwork and upheld Miss X’s complaint.
Miss X complained further about the Council’s delay in deciding on her requests and not meeting the timescales for the EHCP review.
On 2 February Y’s school told the Council Miss X had said Y could not attend school. This was because the taxi service had been suspended due to a debt.
On the same day the Council contacted the taxi company which confirmed it was still providing the service. The Council asked it to send over any outstanding invoices to it directly.
On 3 February the Council sent Miss X a further complaint response. It said it was unable to change its decision and its consideration of Miss X’s complaint was complete. It directed Miss X to the Ombudsman.
On 9 February, the Council told Miss X: Y’s taxi journeys were still in place.
The taxi company was invoicing the Council directly and would continue to do so; The Council would pay all outstanding money owed to the taxi company.
On 16 March Miss X contacted the Council again regarding the laptop. The Council responded to say it could not look into the matter further until the Ombudsman had completed its investigation.
In response to enquiries the Council said: It acknowledged a delay of two weeks in receiving the annual review paperwork from the school. It did not follow it up because the delay was not significant.
It changed how Y’s transport was paid from 4 October 2021 and it had paid invoices to the taxi company directly since then.
It confirmed with the taxi company that Y had been transported to school as usual and it had not stopped the service because of the lack of payment.
It has since paid any debt owed to the taxi company.
It understood Miss X had been signposted to the Government scheme to source a laptop for Y. However, records are not clear whether it had a discussion with Miss X. This may have been an oversight.
It considered no further financial recompense was due but accepted it owed Miss X a sincere apology for the delay in a formal response to Y’s Annual review. However, as there was no formal request for any change to Section F of the EHCP, Y was not disadvantaged by the delay.
Miss X told the Ombudsman: The taxi fare increased by £1.00 each way in September. She did not pay the increase. This meant a debt built up with the taxi company.
On 1 February the taxi did not collect Y from school. She called the taxi company who told her it had suspended the service due to the debt owed. She emailed the taxi company to complain. In support she has provided an email response from the taxi company dated 1 February. This says it will look into the suspension.
She did not get Y ready for school the next day (2 February) as she did not expect the taxi to be available. She received a text message at 7.50am confirming a pick up at 8am but by this time it was too late to get Y ready. She then emailed Y’s school to explain his absence.
In response to a draft decision the Council said it had now sent Miss X a notice to amend Y’s EHCP to address changes to the personal budget. Further, that refresher training on the requirements of the SEND Code of Practice had recently taken place following a recent Ombudsman decision raising similar issues.
Findings
It appears the Council did not review Y’s personal budget and update his EHCP as necessary, following his October 2020 annual review. This is fault. However, this did not cause injustice to Miss X and I am satisfied with the actions taken by the Council to prevent recurrence.
Following Y’s September 2021 EHCP review the Council did not notify Miss X whether it planned to maintain, amend or discontinue Y’s EHCP within four weeks. This is fault. Miss X was put to avoidable time and trouble chasing the Council to complete the EHCP review. This is injustice.
The Council’s complaint response suggests it issued a decision not to amend Y’s EHCP by letter of 20 January. However, I consider this letter did not clearly communicate any decision. Further, the Council should have reviewed the personal budget as part of the EHCP review, not separately, as suggested by its letter. That the Council did not follow the statutory process correctly amounts to fault.
The Council took four months to respond to Miss X’s request for an increase to Y’s personal budget. This amounts to fault. Miss X was put to avoidable time and trouble chasing the Council and suffered distress and uncertainty. This is injustice. I am satisfied on balance the Council’s fault meant the taxi service was disrupted, due to the increasing debt. This meant Y suffered distress as he was not collected from school as expected and he then missed a day of school. This is injustice.
I have not seen any evidence the Council addressed Miss X’s request for a laptop. This is fault. Miss X was put to avoidable time and trouble chasing the Council and suffered avoidable distress and uncertainty. This is injustice.
The Council delayed responding to Miss X’s December 2021 complaint by almost two months. This is fault. Miss X was put to avoidable time and trouble chasing the Council. This is injustice.
The faults regarding the EHCP review process appear systemic. However, the Council says it has since provided refresher training to staff on the SEND Code of Practice. I am satisfied with this action to prevent injustice to others in future.
Agreed action
To remedy the injustice set out above, I recommend the Council carry out the following actions within one month of the date of my decision: Write to Miss X to apologise for the identified faults and to provide its decision on her request for funding for a laptop; Pay Miss X £300 for distress and uncertainty; Pay Miss X £100 for time and trouble; Notify Miss X of its decision to amend, cease or maintain Y’s EHCP following the September 2021 annual review; and within 8 weeks of this notice issue a final EHCP for Y, ensuring this is updated in relation to the personal budget.
The Council has accepted my recommendations.
Final decision
I find the Council at fault for not completing Y’s EHCP review in line with the statutory process. The Council has accepted my recommendations and I have completed my investigation.
Investigator's decision on behalf of the Ombudsman