The Ombudsman's final decision
Summary: Mrs X complained the Council delayed amending her child Y’s Education, Health and Care Plan. The Council was at fault for the delay which has caused Mrs X and Y frustration and uncertainty. The Council has agreed to apologise, make a payment and issue Y’s EHC Plan. Mrs X also complained the Council delayed allocating a disabled children’s social worker. There was no evidence of fault in the Council’s decisions on which social worker to allocate.
The complaint
Mrs X complained the Council delayed amending her child Y’s Education, Health and Care Plan following an annual review in April 2023 and a further review in November 2023. She says this caused her and Y distress and frustration, and impacted on Y’s education and well-being. Mrs X also complained the Council delayed allocating a disabled children’s social worker to assess Y’s social care needs. Mrs X says this delayed Y and the family getting the support they need.
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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) Under our information sharing agreement, we will share the final decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I have considered the information provided by Mrs X and have discussed the complaint with her on the telephone. I have considered the information provided by the Council in response to my enquiries and the relevant law and guidance.
I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I receive in reaching a final decision.
What I found
Education and Health Care (EHC) Plans A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.
Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. A final plan must be issued within 12 weeks of the annual review meeting.
Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
Childrens Services Under section 47 of the Children Act 1989, where a council has reasonable cause to suspect that a child in their area is suffering or is likely to suffer significant harm, it has a duty to make such enquiries as it considers necessary to decide whether to take any action to safeguard or promote the child’s welfare. Such enquiries should be initiated where there are concerns about abuse or neglect.
The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. A child is in need if: they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support; their health or development is likely to be significantly impaired unless the council provides support; or they are disabled.
When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.
Case law states that it is for the Council to decide the form of the assessment under section 17, and who should carry it out based on the individual circumstances of the Child. (R (L and P) v Warwickshire County Council [2015] EWHC 203 (Admin)) What happened The following is a summary of the key facts relevant to this complaint.
Y has severe anxiety. In December 2022 the Council issued a final EHC Plan naming a secondary school and then a local college from September 2023.
In January 2023 Childrens Services received a concern regarding Y. The records note Mr and Mrs X did not consent to a s17 Child and Family assessment so the Council made enquiries under its safeguarding duties. It spoke with Y, Mrs X, Child and Adolescent Mental Health Services (CAMHS) and the school. It found no substantiated evidence that Y was harmed at home. However, it noted the difficulties the family had supporting Y. Mr and Mrs X agreed to engage in a Child in Need plan. The recommendations included that Y’s EHC Plan be reviewed to explore Y’s transition to higher education and to provide more support for Y to access education in school.
The school requested an early EHC Plan review as they were struggling to meet Y’s needs. They reported Y was frequently dysregulated and strategies used previously to address this no longer worked. Y’s annual review was held in April 2023.
In May 2023 the Council allocated a new social worker from its safeguarding team to Y and sought to arrange a Child in Need meeting with Mr and Mrs X to discuss the plan moving forward. They explained the meeting would: Discuss the reason for social care involvement and the assessment.
Discuss how the multi-agencies could best support the family and to get an updated view from the other agencies (CAMHS, health and the school).
Discuss any strengths/challenges and gain the family’s views.
Prepare a support plan for the Child in Need plan that the new social worker would coordinate.
Handover the case to the social worker.
Due to Y being under significant stress due to exams and due to Mr and Mrs X’s work commitments they were reluctant to agree to a meeting at that time. The social worker then informed Mrs X they were moving teams. Mrs X asked that Y be allocated a social worker from the Council’s Children with Disabilities (CWD) team. The Council advised Mrs X the case would remain with the safeguarding team. It explained that Y did not, as yet, have a diagnosis of autism and it considered Y’s needs were best met by the wider safeguarding team. It offered for a social worker from the CWD team to visit alongside the allocated social worker to ensure Y’s needs were being met.
Mrs X asked for greater clarity on why Y did not qualify for a CWD social worker. The Council again offered for a CWD social worker to visit alongside the allocated worker. Mrs X complained to the Council.
In July 2023 Mrs X also complained to the Council that Y’s post-16 transition review was not yet completed. The annual review meeting had been held but the draft Plan had yet to be produced.
The Council wrote to Mrs X in August 2023 to advise that the EHC Plan would be updated.
The Council responded to Mrs X’s complaint about why Y was not supported by a CWD social worker in early September 2023. It advised it needed to understand the difficulties and challenges the family faced and asked if there was any diagnosis as it understood there was not one at that time. It reiterated it had twice offered in July to visit and again offered a visit to the family from a CWD social worker alongside the safeguarding social worker to ensure Y’s needs were addressed in a holistic manner. Mrs X responded and explained a visit would need to be properly prepared for with photos and a profile sent beforehand. She suggested it may be best for CAMHS to coordinate and advise on the approach. She considered there was a significant lack of understanding of Y’s needs and asked for her complaint to be considered at the next stage of the Council’s procedure.
The Council responded to Mrs X’s complaint regarding the EHC Plan delays in late September 2023. It apologised for the delay in processing the annual review. It said it had now increased the team size. It said it had allocated an assessment and review officer, officer 1, to Y. It said the officer would issue an amendment notice by late October 2023. Mrs X remained unhappy and asked for her complaint to be considered at the second stage of the Council’s complaints procedure.
In September 2023 Y started at college. The college reduced Y’s attendance to two and a half days a week. Y was supported on a one to one basis in their own room. During September 2023 Y received a diagnosis of autism spectrum disorder.
The Council responded at the second stage of its complaints procedure regarding Y not having a CWD social worker in October 2023. It did not uphold the complaint. It said it had explained the reasons for a joint visit but apologised that there was a delay in responding at stage one. It acknowledged that Y was being assessed for autism but it did not consider this would impact on the level of the Council’s involvement. Mrs X did not agree for the Child in Need Plan to continue with the safeguarding team.
In late October the Council transferred Y to its Children with Disabilities team to undertake an assessment. It noted this was due to Y now receiving a diagnosis.
The Council responded to Mrs X’s concerns about the EHC Plan delay at stage two of its complaints’ procedure in early November 2023. It apologised for the delays in the complaints process and said this was due to the volume of complaints it had received. It accepted Mrs X’s complaint was not acknowledged in three days nor responded to in 10 working days in line with its procedure. It said Officer 2, not officer 1 contacted Mrs X twice in October 2023. The Council could not explain why the case was dealt with by officer 2, not officer 1. It said they did not issue an amendment notice as the Council had arranged an emergency annual review for early November. So any changes would be documented together.
The college held the annual review meeting in November 2023. This concluded that the EHC Plan did not meet Y’s needs and Y had not made any progress towards the outcomes. Following this Mrs X contacted the Council for an update on the EHC Plan. The Council did not send her an outcome letter.
In December 2023 the social worker from the Children with Disabilities Team undertook a child and family assessment. They met with Mr and Mrs X and CAMHS but were not able to visit Y as Y was too distressed about the prospect of the visit. The assessment noted the appointed social worker was working towards building a relationship with Y and was exploring the potential benefit of some weekly social care support hours to help Y build their independence.
The Council told Mrs X in mid-January that it had received the annual review information which it would combine with the amendment notice following the previous review. It said it was unlikely this would happen before the end of March as all officers were engaged in updating plans for young people moving school in September.
The college contacted the Council in late January 2024 to report that Y’s behaviour had significantly deteriorated and without changes to the EHC Plan it would not be able to support Y next year. The Council requested a further Educational Psychologist assessment which it received in late March 2024.
The Council has yet to issue the draft EHC Plan.
Other Ombudsman cases In April 2024 we upheld several cases against this Council regarding delays in EHC Plans. The agreed actions from these cases included the Council: Providing us with an action plan setting out the steps it is taking to address the causes of the delays.
Providing us with an update of the lessons learnt and changes made following the Council’s review of its Education, Health and Care Plan process. This was to ensure concerns about provision and placements from parents, or young people, were responded to and any agreed steps were actioned without delay.
Providing us with a written report of the changes it has made to staffing arrangements on the Special Education Needs Team Explaining the actions and steps it has taken to ensure SEND caseworkers have manageable caseloads.
Findings
EHC Plan We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
The Council held an early review in late April 2023. It should have issued an amendment notice, with details of what the proposed changes to the EHC Plan were, within four weeks of the annual review meeting. It should then have issued a final amended Plan within eight weeks of the amendment notice. It failed to do this and this was fault.
The Plan in place from December 2022 already named the local college so this did not prevent Y’s transition to college. However, the failure to complete the review meant the Council failed to properly prepare for Y’s transition and to ensure the Plan was appropriate and up to date to meet Y’s needs. This caused distress and frustration to Mrs X and Y and delayed their appeal rights to the SEND Tribunal if they disagreed with the content of the plan.
Y started at the college in September 2023 and the college arranged an annual review meeting in early November 2023. It considered Y’s presentation was significantly different from that referred to in the previous EHC Plan and changes to the Plan were required. The Council has not yet issued an amendment notice. This is fault.
Y’s condition and presentation had significantly altered since December 2022 and the provision set out in Y’s plan was not suitable to meet Y’s needs. The college sought to support Y but the lack of an up to date EHC Plan leaves a sense of uncertainty over whether what was provided was suitable to meet Y’s needs and whether additional support should have been provided. This also delayed Mrs X’s right of appeal if she disputed the content on the Plan and caused her significant frustration.
As set out above we have recently issued other decisions where we found the Council at fault for delay in the EHC Plan process. The Council has not had the opportunity to implement the agreed actions as yet and we will, through our usual processes, follow this up to ensure the Council carries out the agreed actions. I have therefore not made any further recommendations for service improvements.
Allocation of CWD social worker The Council carried out a child and Family assessment following concerns raised in January 2023. Mrs X considered Y should be supported by a social worker from the CWD team rather than the Council’s wider safeguarding team. However, case law states it is for the Council to decide, based on the circumstances of the case, who best should complete the assessment. The Council considered Y’s situation and explained to Mrs X why it did not consider a CWD social worker was necessary. It stated a CWD would complete a joint visit to ensure Y’s needs were identified. The Council continued to work with Y and the family to support Y and in response to Mrs X’s request, and following Y’s diagnosis, it transferred the case to a CWD social worker who completed an assessment. There was no fault in how the Council made its decision on an appropriate assessment of Y needs.
Agreed action
Within one month of the final decision the Council has agreed to: Apologise to Mrs X and Y for the uncertainty and frustration caused by the delays in the EHC Plan process. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
Pay Y £500 to acknowledge the uncertainty caused regarding whether the education and support provided was suitable.
Pay Mrs X £500 to acknowledge the frustration and uncertainty she was caused by the Council’s faults.
Issue an amendment notice, and then a final EHC Plan within eight weeks following this.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation. There was evidence of fault causing injustice which the Council has agreed to remedy.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman