Summary: Mrs X complains on behalf of Y that the Council did not deal properly with an annual review of his Education, Health and Care (EHC) Plan or take seriously reports that he was not safe at school. The Council delayed issuing Y’s EHC Plan and took too long to commission alternative transport provision. Y suffered loss of Special Education Needs (SEN) provision and avoidable distress. The Council should pay Y £4,500.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains on behalf of Y that the Council did not review his EHCP within the right timeframe and did not take him seriously when he said he was not safe at school.
2. Mrs X says Y lost educational provision and suffered avoidable distress.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law, guidance and policies

8. 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. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
9. 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.
10. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Statutory Complaints Process

11. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. We also published practitioner guidance on the procedures, setting out our expectations.
12. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
13. 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 investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
14. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
15. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.
16. 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 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.
17. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
18. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.

What happened?

19. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
20. Y had an EHC Plan. An annual review of this was completed by his school in November 2022. The Council agreed to amend the plan in early January 2023.
21. In September 2023 Y complained to the Council that therapy had not been provided, that he had not been taken seriously when he said he was unsafe, that his EHC Plan did not meet his needs and was not reviewed within statutory timescales and he wasn’t provided with a personal budget.
22. In February 2024 the Council issued Y’s updated EHC Plan following the annual review.
23. The Council considered his complaint through the statutory children’s complaints process. In August 2024 It upheld Y’s complaint that his EHC Plan was not reviewed within the correct timescale and apologised for this. It also determined that a further investigation should be carried out regarding him being unsafe at a point in time.
24. The Council carried out the recommended further investigation. This found that there had been delay in resolving new transport arrangements for Y.

Analysis

25. There is no evidence that there was any evidence of flaws in the stage 2 or stage 3 review stages of the statutory investigation. I will therefore not re-investigate the findings.

Delay to annual review

26. The Statutory investigation accepted there had been delay in issuing an updated final EHC Plan for Y following the annual review. The Council accepts that this delay was over a year, January 2023 to February 2024.
27. The Council says the delay was due to, “the on-going dialogue with Y’s mother re: her requested updates to the plan.”
28. I do not agree with the Council. The Council should have issued Y with an updated EHC Plan without delay. It could then have continued dialogue about further changes to the EHC Plan after doing so. This is fault by the Council.
29. The Council has confirmed Y’s updated EHC Plan contained additional SEN provision including:
• Occupational therapy provision
• Functional Skills English and Maths
• Coding and Computer programming
• Design Technology activities
• Outdoor Learning
• A Post 16 Transition plan
• Planning for social interactions outside of school
• Sensory Intervention programmes
• Motor coordination programmes
30. It is clear from the acceptance of delay and the significant differences to Y’s updated EHC Plan that he suffered the loss of some SEN provision for a year, equivalent to 3 terms. The Council apologised to Y for the delay in finalising his EHC Plan. I do not consider this to be an appropriate remedy.

Transport arrangements

31. In the further investigation the Council found that Y’s school responded appropriately to concerns raised about incidents in a taxi. It also said, “that the Council acted accordingly and within a reasonable timeframe for the taxi service to change and be recommissioned,” and it acknowledged that, “from your perspective the challenges you may have experienced continuing to use the shared taxi service over several weeks until this was resolved I recognise this may have continued to cause you distress.
32. I agree this was fault by the Council. The Council has apologised to Y for the challenges and continued distress he experienced continuing to use the shared taxi service over several weeks. I consider this to be an appropriate remedy.

The Ombudsman’s Guidance on Remedies

33. Where fault has resulted in a loss of educational provision, we will usually recommend a symbolic remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
34. I have taken into account the fact that Y missed some SEN provision, the fact that other SEN provision was made and his special educational needs as detailed in his EHC Plan in determining an appropriate remedy.

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Action

35. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Pay Y £4,500 in respect of missed SEN provision, over one year (3 terms) at a rate of £1,500 per term.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman