Summary: The complainant (Mrs X) said the Council failed when addressing her complaint about the Council’s children’s services. She also complained about the Council’s failings to review her daughter’s (Y) Education Health and Care (EHC) plan within statutory timescales, to deliver all special educational provision (SEP) included in Y’s EHC plan and to carry out a dyslexia assessment for Y. We found fault with the Council for the delays in the children’s statutory complaint process and during the Annual Review of Y’s EHC plan. We did not find fault with the remaining parts of Mrs X’s complaint. The Council agreed to apologise, make payments to Mrs X to recognise her injustice and carry out some service improvements.

The complaint

1. Mrs X says the Council’s failed to comply with the stage three review panel recommendations accepted by the Council in November 2022. She also says the financial compensation offered as a result of the children’s statutory complaint process was not adequate to the impact the Council’s failings had on Mrs X and her family.
2. Mrs X also says the Council’s failed to:
• Review Y’s EHC plan within the statutory timescales;
• Deliver all SEP included in Y’s EHC plan;
• Carry out a dyslexia assessment which, Mrs X says, she had to commission privately.
3. Mrs X says the Council’s alleged failings had negative impact on Y and the whole family:
• Impact on Y – she did not have required support which affected her education and meant she fell behind her peers;
• Impact on Mrs X - caused her distress, affected her sleep and mental health. She had to spend a lot of time and effort trying to get things resolved at the expense of her children, particularly at Christmas and during holiday periods.

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What I have and have not investigated

4. I have not investigated anything that happened at Y’s school as this is out of our jurisdiction.
5. I limited my investigation to the period from April 2021. Normally, as explained in paragraph seven, we would not investigate anything that happened more than 12 months before the complainant came to us, unless the complainant claimed continuing fault or injustice. Mrs X claims the Council continued in its failure to deliver SEP to Y, so I extended my investigation beyond twelve months. It would be disproportionate, however, to go back further than April 2021, when the Council amended Y’s EHC plan, as Mrs X could have complained at the time about any issues with Y’s support at school. She knew the process as she complained to us in 2020 about the timescales for issuing Y’s EHC plan.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
9. 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.
10. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
11. If a council has investigated something under the children’s statutory complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
12. 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)
13. 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

14. I spoke with Mrs X and considered the information she provided.
15. I made enquiries with the Council and considered the information it provided.
16. I reviewed the Council’s website information on how it handles its complaints.
17. Mrs X and the Council 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

Legal and administrative framework

Children’s services

18. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services:
• The first stage of the procedure is local resolution. Councils have up to 20 working days to respond;
• If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request;
• If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.

Education

19. The council has a duty to secure special educational provision specified in an EHC plan for the child or young person. (Children and Families Act S.42)
20. 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)
21. The Council’s duties on Education Health and Care Plan (EHCP) Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
• Councils must review an EHCP at least every 12 months;
• Within two 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;
• Where a council proposes to amend an EHC plan, 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. The council must give the parents at least 15 days to give views on the proposed amendments;
• When the parent suggests changes that the council agrees, it should amend the 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 sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)
22. As part of the assessment councils must gather advice from relevant professionals. This includes:

• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

(Special Education Needs Regulations 2014 paragraph 6(1))

What happened

Children’s services

23. In mid-April 2021 Mrs X complained about the poor-quality support for Y from the Council’s children’s services. She objected to the lack of a carer’s assessment, section 47 investigation and unsatisfactory communication.
24. Three days later the Council sent Mrs X a resolution plan for stage one of the children’s statutory complaint process.
25. The Council provided Mrs X with its stage one response in the third week of May:
• Not upholding Mrs X’s complaint about the lack of carer’s assessment and lack of communication;
• Partly upholding Mrs X’s complaint about the section 47 investigation;
• Upholding Mrs X’s complaint about cancelling meeting with short notice and its failure to rearrange it. The Council offered its apologies.
26. As Mrs X was dissatisfied with the result of the stage one investigation, the Council progressed her complaint to stage two. At the end of October the Council appointed an Independent Investigation Officer, who in mid-February 2022 agreed terms of reference with Mrs X.
27. In the beginning of May an Independent Person assigned to oversee stage two investigation of Mrs X’s complaint agreed with the findings of the Independent Officer.
28. In the third week of May the Council’s Service Director provided a stage two response to Mrs X, advising she had 20 days to ask for her complaint to be escalated.
29. Mrs X asked the Council to carry out stage three of the complaint process in the second week of July.
30. In the beginning of November a review panel consisting of a Panel Chair and two Independent Persons held the meeting, which resulted in the report outlining the panel’s findings and recommendations.
31. At the end of November the Council issued a letter to Mrs X, accepting all the Review Panel’s findings and recommendations and offering a payment of £300 for Mrs X’s time and trouble in bringing her complaint and to recognise her distress at the Council’s failings.

Education

Background

32. The Council issued an EHC plan for Y in mid-February 2020. At the time she attended Year 4 of a mainstream primary school.
33. In March Y’s parents appealed against the content of sections B and F of Y’s EHC plan and specifically asked to include:
• In section B the reasons for Y’s fatigue and lack of concentration;
• Provision to address all Y’s needs identified in section B and 1:1 support for Y.
34. Y’s parents also asked for the SEND Tribunal’s recommendations about Health and Social Care parts of the plan.
35. In June the Council carried out a review of Y’s outcomes and provision. It found some of the provision for communication and interaction needs, especially staff training and interventions recommended by Speech and Language Therapist (SLT), were not taking place.
36. In October the Council got an Occupational Therapy (OT) advice for Y and reviewed Y’s needs. Later in the year further reports followed including an Educational Psychologist (EP) report and a SLT report.

From April 2021

37. At the end of April 2021 the Council issued another final EHC plan for Y, which it amended in the fourth week of June. In the amended EHC plan the Council included:
• Implementation of speech and therapy activities as advised by the specialist SLT/local speech and language. This SEP was to be reviewed once Y moved to a secondary school;
• Adaptations to recording Y’s work, where appropriate, to be embedded as her normal way of working into daily teaching and learning. This would be delivered by a class teacher with extra support from a Teaching Assistant (TA).
38. Y moved to a mainstream secondary academy in September 2021.
39. In the second week of March 2022 Mrs X raised an educational complaint, about the Council’s actions towards her two daughters. Mrs X said the Council failed to provide Y with support from a suitably trained SLT, to include the full dyslexia assessment in Y’s EHC plan and delayed Annual Review for Y in 2022.
40. Two weeks later the Council and Y’s school held an Annual Review meeting, where the lack of specialist training for staff was discussed. Mrs X also asked to add Y’s dyslexia which Y was diagnosed with a year before.
41. At the end of March the Council responded to this complaint, partially upholding it. The Council:
• Accepted the lack of clarity in the text of Y’s EHC plan and undertook to get clarification from SLT on whether SLT advising staff on Y’s interventions needed specialist training. On the current wording the Council did not accept it failed to deliver SEP to Y;
• Accepted there was a slight delay in carrying out Y’s Annual Review but explained some of the reasons were outside the Council’s control and anyway the delay was not significant enough to cause injustice to Y;
• Rejected a suggestion it should include the full dyslexia report in Y’s EHC plan.
42. In the beginning of May the Council sent Mrs X a letter stating it would be amending Y’s EHC plan.
43. In August 2022 the Council issued a draft EHC plan with the amendments following a privately commissioned dyslexia assessment report, which was prepared in March 2021. The Council issued Y’s final EHC plan in the fourth week of January 2023.

Analysis

Children’s services

Timescales for children’s statutory complaint handling

44. When handling Mrs X’s complaint the Council significantly delayed stage two and stage three of the process:
• There was a delay of around 37 weeks in completing stage two;
• There was a delay of ten weeks in holding an Independent Review Panel meeting.
45. Completing Mrs X’s complaint was thus delayed by eleven months. This is fault which caused Mrs X injustice by uncertainty of the outcome and delay in implementing recommendations.

Investigation and recommendations

46. We found the investigation carried out by the Investigating Officer overseen by an Independent Person robust and thorough. The right evidence was gathered and its evaluation led to the persuasive conclusions.
47. After reviewing the complaint and holding a meeting the Independent Review Panel confirmed findings of the stage two investigation. In drawing its conclusion the Panel followed the right process.
48. As explained in paragraph ten, we would not re-investigate the complaint if we were satisfied there were no flaws in the Council’s investigation. The only failing I found was with the timescales, as explained under paragraph 44.
49. The payment of £300 offered by the Council to recognise extra time and trouble in bringing her complaint as well as Mrs X’s distress does not seem sufficient in view of the length of the delay and the level of Mrs X’s and other family members’ distress at the Council’s failings. I will, therefore, recommend an additional payment. In accordance with our remedies guidance this is, however, a symbolic payment and not aimed at compensating the complainant.

Compliance with recommendations

50. In the letter sent to Mrs X at the end of November 2022 the Council stated it would complete all recommendations within three months. It should have done so by the end of February 2023.
51. The Council contacted Mrs X in mid-March 2023 with an update on completing the recommendations. The Council said:
• Four of them were completed;
• For one of them the Council extended the timescale by extra three months;
• It did not make a payment as Mrs X declined it.
52. Looking at the wording of the recommendations accepted by the Council and the actions the Council had undertaken by mid-March 2023 to complete them, I consider there was no fault with completing recommendations. The Council was recommended to consider introducing certain information material and it did so, pointing out it would prepare leaflets/documents within the further timescales. This is acceptable.
53. I understand Mrs X queried the payment offered by the Council. The payment was offered, so we cannot hold the Council responsible for not making it if Mrs X refused to accept it.

Education

Non-delivery of SEP

54. In the light of the wording of the qualifications required from Y’s SLT who would train Y’s staff in the activities to be delivered to Y when providing her with education, I do not find fault with the Council. The wording suggests SLT would either have specialist training or would be a local therapist.
55. We have evidence of a local SLT supporting Y at school. The ambiguity of the wording in section F does not make it possible to hold the Council to account for not ensuring Y’s SLT had certain specialism. We cannot criticise the Council for the content of section F as this can be appealed to the SEND Tribunal.
56. I do not find fault with the Council regarding delivery of equipment needed by Y. Although Mrs X complained about the Council’s failing to ensure Y is provided with some equipment included in her EHC plan, this was not mentioned at the Annual Review meeting in March 2022. Besides, when talking to me Mrs X said her daughter had some use of an iPad and reading pen at school but, in Mrs X’s view, she should be given these objects to use at home as well.
57. We would normally expect SEP specified in a child’s EHC plan, including any equipment, to be delivered at school. The wording of the provision suggests the Council agreed in Y’s EHC plan she needed alternative ways of recording her work when learning at school.
58. The plan included a list of possible adaptations. It would not be for us to explore which of them were provided especially since Mrs X mentioned Y got access to some of them.

Annual Review delays

59. Mrs X complained about delayed Annual Review of Y’s EHC plan in 2022. As the Council issued Y’s first EHC plan in February, the Annual Review meeting should have taken place in February 2022. The meeting, in fact, happened in March. Although there was a delay in holding this meeting, I do not consider it was significant enough to cause injustice to Y.
60. There were some delays with sending the Council’s decision letter and the Council’s proposed amendments to Mrs X following the Annual Review meeting. The proposed amendments should have been sent either with the letter or as soon as possible afterwards. The Council should have issued Y’s final amended EHC plan within eight weeks from sending Mrs X its proposed amendments, so in October 2022. It issued Y’s final amended EHC plan at the end of January 2023.
61. The Council’s failing to carry out Y’s Annual Review within the statutory timescales is fault. This fault caused injustice to Y by delaying the right support for her. The amendments to Y’s EHC plan were based on several new professional reports which informed changes in sections B and F. The Council’s fault also caused injustice to Mrs X through uncertainty about the Council’s position on the amendments and distress at the delays.

Dyslexia assessment

62. Mrs X privately commissioned a dyslexia assessment, which resulted in the report issued in March 2021. She complained the Council did not carry out this assessment and asked for the refund of the fee paid for it.
63. I do not find fault with the Council for not carrying out this assessment for the following reasons:
• Councils have statutory duties explained under paragraph 21 when carrying out children’s EHC needs assessments or re-assessments. I did not investigate whether Mrs X asked for a dyslexia assessment during Y’s EHC assessment leading to the issuing her EHC plan in February 2022 as this would be out of time. Besides Mrs X complained to us about the timescales of the EHC plan process so she then had an opportunity to raise any concerns about Y’s EHC needs assessment.
• If Mrs X considered the Council failed to include in Y’s EHC plan all her needs and SEP, she could have mentioned them when appealing to the SEND Tribunal in March 2020;
• Even if a child has dyslexia, the Council has no duty to carry out a specific dyslexia assessment. The Council must find the extent of child’s special educational needs and provision needed to meet them. There is evidence that when issuing Y’s first EHC plan the Council recognised her difficulties with literacy and included interventions to address them.

Complaint handling

64. When addressing my request for the Council’s stage two response to Mrs X’s educational complaint, the Council sent me its response about Y’s sister. In its comments to my draft decision the Council said when providing clarifications about her stage two complaint Mrs X only mentioned issues about her other daughter. This is why the Council did not deal with any issues about Y’s education at stage two.
65. I decided to investigate Mrs X’s complaint about Y’s special educational provision, the Annual Review process and dyslexia assessment, even though the Council did not have an opportunity to consider Mrs X’s complaint at stage two, for the following reasons:
• The Council knew the details of Mrs X’s complaint since the beginning of February 2023 and had opportunities to respond to any concerns at various stages of the process;
• The Council at no point raised potential prematurity of this part of Mrs X’s complaint;
• The Council did not criticise any of my findings and accepted my recommendations.

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Agreed action

66. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X and Y for the injustice caused to them by the faults identified;
• pay Mrs X £275 to recognise her injustice caused by the delays with children’s statutory complaint process and distress. This is in addition to £300 offered by the Council as a remedy for its failings;
• pay Mrs X £200 to recognise the distress and uncertainty caused to her by the Council’s failings within the Annual Review process.

The Council will provide the evidence that this has happened.

67. We also recommend the Council within three months of the final decision:
• Implement a system of monitoring Annual Reviews timescales to ensure:
1. The Council sends its decision letters four weeks after the Annual Review meeting with the proposed amendments, if at all possible;
2. If the child’s/young person’s EHC plan is to be amended following an Annual Review, the final amended plan will be sent to the parents eight weeks after sending the proposed amendments.
• Prepare a plan for dealing with children’s statutory complaints to ensure the Council meets its statutory timescales.

The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. I uphold a part of this complaint. I found fault with the timescales of children’s statutory complaint process and within Annual Review of Y’s EHC plan. These faults caused Y and Mrs X injustice. The Council has accepted my recommendations, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman