The Ombudsman's final decision
Summary: Hampshire County Council delayed for six weeks in completing a review of the complainant’s son’s Education, Health and Care Plan in 2021. This caused injustice in the form of frustration and a delayed right of appeal to the Special Educational Needs and Disability Tribunal. The Council will take the recommended action to recognise this injustice
The complaint
The complainant, whom I shall refer to as Ms B, says the Council was at fault in that it: delayed completing the annual review of her son, X’s, Education, Health and Care Plan from March 2021 when the review meeting took place until September 2021 when it issued the final amended Plan; failed to put in place arrangements detailed in section F which stated that when X felt too anxious to attend school “his trusted adult at school supported by a qualified teacher” would provide teaching in an alternative environment; failed to make provision without Ms B needing to resort to the complaints process to resolve matters; and failed to comply with section 25 of the Children and Families Act 2014 regarding the duty to promote integrated provision in relation to health services for X.
Ms B says she and her son were caused injustice in the form of missed provision, frustration and avoidable time and trouble.
After I issued a draft decision on this complaint Ms B asked me to also consider additional injustice. She said that, but for the delay in amending the Plan, amendments to Section G of the Plan (health provision) would have been in place earlier and she would not have had to pay for a private health-based assessment in September 2021. She asked for the costs of this private assessment to be reimbursed.
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 cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) We are required to keep our jurisdiction under review as an investigation progresses. For this reason I carefully considered whether I should continue to investigate Ms B’s complaint b) above after the SEND Tribunal issued a decision in late May 2022 on an appeal Ms B submitted to it in September 2021. Although it does not seem that Ms B specifically appealed to the Tribunal about the matters identified in b) above it is clear from the Tribunal’s decision notice that it did consider this provision and reached a view on it. The Tribunal decided that that it did not consider the evidence supported provision of dedicated staff for X in and out of school. As a result, when the Council amended X’s EHC Plan following the Tribunal it removed the provision relating to this in Section F of X’s EHC Plan. It is therefore clear that the issues in b) were considered and a decision reached on them by the Tribunal, which is a specialist panel of experts. We would not ordinarily address an issue that has already been considered by an appeal body such as the SEND Tribunal. For these reasons I decided to exercise my discretion to discontinue my investigation of part b) of this complaint. My decision not to exercise my discretion to investigate this matter includes consideration of this particular provision during the period between when the appeal was lodged with the Tribunal and its final decision (September 2021 to May 2022) given the final decision the Tribunal reached.
I also decided that I should not further consider part d) of this complaint. This is because Ms B’s appeal to the Tribunal specifically included the issue of health provision as it relates to X’s education provision detailed in the EHC Plan. I consider this is at the heart of Ms B’s complaint to us about the Council’s failure to ensure integrated provision. As the Tribunal has addressed this issue I cannot investigate this complaint.
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 discussed the complaint with Ms B and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision.
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.
Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should have happened A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
Section F of the EHC plan sets out the special educational provision needed by the child or the young person.
The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135) The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision in their child’s EHC plan. Parents also have the right to appeal if a Council decides not to amend an EHC Plan after an annual review. Parents must consider mediation before deciding to appeal.
The Council publishes a three stage corporate complaints procedure. This states that at the first stage the Council will try to resolve the matter under complaint. If this is not successful a senior officer will consider the matter at stage 2 of the procedure. If this does not resolve the matter the complainant may ask for consideration at stage 3 of the procedure which is undertaken by a member of the Council’s Information Governance Team on the Chief Executive’s behalf.
Section 25 of the Children and Families Act 2014 says that a council must exercise its functions under this part of the Act with a view to integrating educational provision with health and social care provision where it considers this will promote the wellbeing of children with special educational needs or improve the quality of special educational provision. Section 42 of the Children and Families Act 2014 states that the CCG must ensure that health provision specified in an EHC Plan is made available to the child. The statutory guidance says that CCGs need to satisfy themselves that they have arrangements in place to agree health provision when participating in EHC Plans.
What happened The review in March 2021 The Council agrees a review of X’s EHC Plan took place in March 2021. The Council accepts it delayed in telling Ms B whether or not it intended amending the Plan as it did not do this until mid-July 2021. The Council should have done this within four weeks of the meeting. Had it done so when it should it would have told her its intention by late April. So, the Council accepts it delayed by around 6 weeks in issuing this letter.
The Council says that it decided not to amend the Plan. Ms B told the Council she intended appealing this decision and attended a mediation meeting in early August 2021. Ms B has complained that the Council did not issue the amended Plan sufficiently quickly following the mediation meeting. Paragraph 11.30 of the Code confirms that the 2014 Regulations set out time limits for councils to implement agreements made at mediation. However, if these time limits are not met and there is a right of appeal to the SEND Tribunal on this issue raised, the parents may appeal to the Tribunal without waiting for the Council to implement the agreements reached. So if she was dissatisfied with any delay at that time, Ms B could have expedited her appeal.
The Council did issue an amended EHC Plan in early September and a final plan around mid-September. Ms B appealed to the SEN Tribunal almost immediately after the final plan was issued.
Complaints Ms B complained in December 2021. In her complaint she said the Council: had delayed in concluding the annual review process; incorrectly dated the letter it sent in July stating it would maintain X’s EHC Plan; failed to make provision detailed in Section F of X’s EHC Plan relating to provision of education when he was too unwell to attend school; and failed to respond to emails about mileage allowances and missed provision.
The Council initially provided its response in late December 2021 but unfortunately failed to attach the response to an email so Ms B did not receive it until early January 2022 after she chased up the response. The Council said: It accepted it did not complete the process of X’s review within the required timescale of 4 weeks; The letter that it sent in July with the outcome of the annual review did incorrectly detail the date it received the paperwork from X’s school; It would provide a response on the complaint about section F provision after the school Christmas holidays as the officer at the Council needed to check X’s attendance at school before he could provide a response; Upheld complaints about poor responses to emails; It apologised for the upheld complaints and confirmed that emails would be responded to promptly in future.
In mid-January the Council provided a response on the complaint about Section F provision as it said it would. It did not uphold this complaint and stated that it considered that if X was absent for more than 15 days because he was too unwell to attend school the relevant part of section F no longer applied as Section 19 provision became the relevant provision.
In January Ms B asked for the matter to be considered at stage 3 of the complaints procedure. The part of the complaint she wanted to pursue was that related to provision in Section F and whether this should have been provided or Section 19 was triggered.
The Council provided its response at stage 3 of the procedure in February. The Council did not uphold Ms B’s complaint at stage 3 and declined to consider a part of the complaint related to a refusal by the CCG to pay an invoice until after the Tribunal/ a small claims court claim was concluded as matters related to that complaint were being considered by these bodies.
Was the Council at fault and did any fault cause injustice?
The Council has accepted it delayed by around six weeks in issuing a letter following the annual review meeting in March 2021. It has already apologised to Ms B for this in responses to her complaint in January 2022 and offered her £150 to recognise the time and trouble caused. I consider this avoidable delay did cause Ms B injustice in the form of frustration and because it delayed her right of appeal to the SEND Tribunal and consequently the outcome of that Tribunal.
Ms B exercised her right to complain in December 2021. The complaint was considered under the corporate complaints procedure. With the exception of the failure to properly send the response in December I find no fault in the Council’s consideration of the complaint. Ms B argues that she had to use the complaints procedure in order to resolve the provision of education for X. The complaints procedure is of course set up to consider problems related to provision of council services so arguably this is what the process does. Ms B’s complaint about the delay in completing the review process was upheld and an apology issued. It did not uphold her complaint about the provision in Section F of the Plan. Whilst I recognise the point that Ms B is making I do not consider it is the case that she had to resort to the complaints procedure to get the provision made as this was not the case. Ultimately it was the Tribunal that considered this issue. I do not therefore uphold this part of Ms B’s complaint.
Ms B also argues that the delay in completing the amendments to the Plan resulted in her having to pay for a private mental health assessment for X in September 2021. Section G of the EHC Plan issued in September 2021 includes a medication review by a suitably experienced paediatric psychiatrist and a CAMHS assessment and therapy. The previous plan did not include this provision. Ms B argues that had the final amended plan been issued promptly by June she would not have incurred the costs of these and so the Council should be considered responsible for meeting these costs. I do not agree the Council should be held accountable for the costs Ms B incurred. This is because whilst the health service would have been responsible for arranging these two pieces of provision I cannot definitely conclude that they would have been arranged and taken place by the time Ms B paid for a private appointment for this in September. It may have been but this is speculative and no timescale was provided for these pieces of work to be completed in the Plan. On this point the Council says that it has been advised by the relevant health provider that X was not prioritised for immediate assessment so the delay in amending and issuing the revised final plan did not affect any earlier assessment by the health provider. The Council also says that Ms B took this matter to both the SEND Tribunal and the small claims court. I have already explained that I have not considered matters that have been put before the SEND Tribunal. In addition however I cannot consider a matter already taken to the small claims court because the Ombudsman has no jurisdiction to investigate a matter that has already been the subject of proceedings in a court of law. There are therefore no grounds for me to ask the Council to reimburse the costs of this private medical assessment as Ms B has asked.
For the reasons given I have not considered parts b) and d) of the complaint.
Agreed action
The Council has already apologised for the delay in completing the review process. I am not therefore asking for a further apology for this. In addition the Council will make a payment of £150 to recognise the frustration this caused and that it delayed Ms B’s right of appeal to the SEND Tribunal. It will do this within one month of the date of the final decision on this complaint.
I make no service improvement recommendation as this matter has been raised in other complaints and the Council has already agreed to take action to improve this.
Final decision
There was fault by the Council in it that it delayed completing the annual review process and this in turn delayed the right of appeal to the SEND Tribunal. For the reasons given I have found no fault regarding part c) of the complaint and have not investigated parts b) and d) of the complaint.
Investigator's decision on behalf of the Ombudsman