The Ombudsman's final decision:
Summary: Mrs X complains of delays by the Council in issuing final amended EHC Plans for her son Y, causing stress to the family. The delays in issuing the amended EHC Plans have not caused Y significant injustice.
- The complainant, whom I shall call Mrs X, complains the Council:
- Failed to provide school transport for Y;
- took too long to issue a revised EHC Plan for her son, Y; and
- failed to deal with her complaint properly.
What I have investigated
- I have investigated the second and third bullet points. I give my reason for not investigating the first bullet point at the end of this statement.
The Ombudsman’s role and powers
- If we are satisfied with a council’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)
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- the fault has not caused injustice to the person who complained, or
- the injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6), as amended)
- 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)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- 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.
How I considered this complaint
- I read Mrs X’s complaint and spoke to her on the telephone. I considered the Council’s duties under the Special Educational Needs Code of Practice 2014 and the Special Educational Needs and Disability Regulations 2014. I made written enquiries of the Council and considered the Council’s response with the documents it supplied. I shared a draft of this decision with both parties and invited their comments, but received none.
What I found
- Y has an Education Health and Care (EHC) Plan to meet his special educational needs. He attends a special school.
What should happen?
- Councils with education responsibilities must carry out an annual review of a child’s EHC Plan. When a council decides to amend the Plan following a review, regulation 22(3) says that it must issue the amended final plan “as soon as is practicable, and in any event within 8 weeks of the local authority sending a copy of the EHC plan”. This means councils have a maximum of 14 weeks to issue the final plan from the annual review.
- Kent County Council’s complaints policy states it will deal with complaints within 20 working days.
What happened and was it fault?
- Y’s annual review in 2017 was in July. But the Council did not issue the amended EHC Plan it agreed until June 2018. This was delay of about eight months. This was fault. The Council has apologised for this and called it “inexcusable”.
- Y’s annual review in 2018 was in July. But the Council has still not issued the amended EHC Plan it agreed, more than a month late. This is fault and will remain so until it issues the final EHC Plan.
- I note the Council’s acceptance that it has recently had generalised difficulties in adhering to timescales laid out in the SEN Code 2014. It tells me this is due to an increase in requests for statutory assessment following the recent changes in SEN practice. It says it has now has more than 10,500 EHC Plans in place across the county. It has laid out a plan it is following to make sure it adheres to statutory timescales for review documentation in future. I welcome this.
- The Council confirmed it took 21 days to respond to Mrs X’s first complaint and 24 days to respond to her second complaint. This was one day and four days too long.
Did the fault cause injustice?
- Where a council fails to make provision because of delay in issuing an EHC Plan, that lost provision is injustice to the child.
- Where delay by a council prevents a parent appealing to the SEND Tribunal and the appeal is successful, the child also suffers injustice in the form of lost provision he or she would have had earlier.
- In this case, the Council told me Y received the provision it had agreed at the annual review in July 2017, even though the final EHC Plan was late. Mrs X has told me Y did not lose provision. On this basis, I do not find the delayed EHC Plan caused him injustice.
- Regarding the July 2018 annual review, where the Council has again taken too long to issue the final EHC Plan, I note the Council has told me the provision has been in place since shortly after the review. I also note there is no final EHC Plan against which Mrs X may appeal if she disputes its content. It is therefore too early for me to reach any view whether Y is losing provision now. Were Mrs X to have reason to appeal against the final EHC Plan and be successful in doing so, she would be welcome to bring this part of the complaint back to us.
- Regarding the Council’s complaints handling, Mrs X tells me she made repeated ‘phone calls to the Council to chase its response. I accept that. But I note the delay in sending a formal response was short in each case. And I note there was no injustice from the delay in issuing the final EHC Plan after the July 2017 Annual Review. I do not therefore find the Council caused Mrs X injustice that requires further remedy beyond the apology it has given with its response to my enquiries.
- I have upheld the complaint as delays by the Council are fault, but I do not recommend further remedy as there is no remaining injustice to Y or Mrs X. Should she have reason to appeal successfully against the content of the new final EHC Plan when it is issued, she is welcome to bring this part of the complaint back to us providing she does so promptly.
Parts of the complaint that I did not investigate
- I have not investigated the complaint about school transport as this dates from 2014-16. I have seen no good reason why Mrs X could not have approached us sooner.
Investigator's decision on behalf of the Ombudsman