Summary: Mrs X complains about the Council’s actions following her daughter’s EHC plan annual review meeting. She says the Council delayed in amending the plan and in issuing the final EHC plan. She also says the Council did not provide any special education provisions between July 2019 and October 2019. The Ombudsman finds some fault with the Council’s actions. We have recommended the Council make a financial payment.

The complaint

1. Mrs X complains about the Council’s actions following her daughter’s EHC plan annual review meeting in February 2019. She complains:

• The Council had initially decided to cease her daughter’s EHC plan following the annual review but did not provide evidence for why it was no longer necessary for the EHC plan to be maintained.
• Delays were caused as the Council kept changing its decision as to whether it would cease to maintain the EHC plan or make amendments to the EHC plan.
• The Council did not provide the special education provision set out in her daughter’s EHC plan between July 2019 and October 2019.
• There were delays in providing the final EHC plan.

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What I have investigated

2. I have not considered the Council’s actions after the Council issued the final EHC plan in October 2019. This is because Mrs X has appealed to the First Tier Tribunal (Special Educational Needs and Disabilities).

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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 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)

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How I considered this complaint

5. I spoke with Mrs X and considered the information she provided.
6. I made enquiries with the Council and considered the information it provided.
7. I sent a draft decision to Mrs X and the Council and considered their comments.
8. 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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What I found

Legislation and guidance

9. Under section 42 of the Children and Families Act 2014, the Council must secure the special educational provision specified in an EHC plan.
10. The SEND Code of Practice: 0-25 years (January 2015) outlines the process for reviews where a child or young person attends a school. Paragraph 9.176 states the council must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan, within four weeks of the review meeting. The council must notify the child’s parent, the young person and the school.
11. Paragraphs 9.194 - 9.196 say that when a local authority proposes to amend an EHC plan, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parents or the young person.
12. Councils must then give the parent or young person 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHC plan. Following representations, if the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice.

What happened

13. Mrs X’s daughter, Y, had an EHC plan in 2018 which named College A as her educational placement. The special educational provisions set out within the EHC plan were centered around the provisions provided by College A.
14. In February 2019, the school held a meeting to review Y’s EHC plan. The Council did not attend this meeting. The records showed it was discussed at the review the Council had not agreed funding for a further year at college A. The Council said it had always been clear that College A was a two-year course which would end in 2019. The Council said College A could no longer meet Y’s needs because the course had come to an end.
15. It was also recorded Y would not be attending College A for the next academic year and it was understood Y’s EHC would end. Mrs X said she wanted the Council to continue to maintain A’s EHC plan.
16. The Council said it received the annual review paperwork at the beginning of March 2019. The Council wrote to Mrs X to tell her of its intention to end Y’s EHC plan at the end of June 2019. Mrs X asked the Council to keep Y’s EHC plan in June 2019.
17. At the beginning of July 2019, the Council decided it would keep Y’s EHC plan. The Council told Mrs X that Y could not remain at College A. This was because College A could not meet Y’s needs anymore. The Council said it would amend Y’s EHC plan and provided Mrs X with information about alternative providers. Y’s course at College A ended mid July 2019.
18. Near the end of July 2019, the Council sent Mrs X the amended EHC plan for her and Y to review and comment on. The Council said it would issue a final amended EHC plan once all parties agreed with content of the amended EHC plan. The Council also offered to meet Mrs X and Y to discuss the options available.
19. In August 2019, Mrs X told the Council she had consulted with one of the educational providers suggested by the Council. Mrs X told the Council the provider was not suitable for Y’s needs. The Council said the educational provider agreed it could not meet Y’s needs. The Council offered to meet Mrs X to find out what Y would like to do educationally.
20. Mrs X provided the Council with information about what Y was happy doing and what she could cope with. Mrs Y also explained the help and support Y needed to help her engage. In response, the Council provided Mrs Y with two options to consider.
21. In September 2019, the Council and Mrs X continued to discuss the available options for Y. Mrs X said the options provided by the Council were not suitable for Y. Mrs X told the Council the only provision which was suitable for Y was College A. The Council said it understood but there was nothing else it could offer. The Council again offered to meet with Mrs X to discuss Y’s needs.
22. The Council sent Mrs X a second amended EHC plan at the beginning of September 2019. The Council did not name an educational placement for Y in the plan. Mrs X provided the Council with further suggested amendments.
23. The Council sent a third amended EHC plan near the end of September 2019. The Council issued the final EHC plan in October 2019. Mrs X has appealed against the final EHC plan.

Analysis

Ceasing the EHC plan

24. It is clear the Council had initially decided to cease Y’s EHC plan following the annual review. The Council said this was because it had been discussed at the annual review meeting that Y could no longer attend College A.
25. Mrs X complaint was the Council had not provided evidence for why it was no longer necessary for the EHC plan to be maintained. As I understand it, the decision was based on the evidence provided by College A following the annual review, I do not find fault with the Council for this. In any event, the Council later agreed in July 2019 that it would maintain Y’s EHC plan.

Delay

26. It is clear from the evidence there has been delays to the process of amending Y’s EHC plan.
27. The Council should have told Mrs X of its decision to end Y’s EHC plan within four weeks of the review meeting. The annual review meeting was in February 2019, but the Council only told Mrs X of its decision to cease the plan at the end of June 2019. Therefore, there was a delay of around three months. This is fault.
28. I find the fault identified caused Mrs X an injustice. This is because, if not for the delay, Mrs X would have had the opportunity to appeal to the Tribunal sooner.
29. Further, I also consider there were delays in the Council issuing the final amended EHC plan. The code of practice sets out the process for amending an EHC plan. The Council gave Mrs X an amendment notice in July 2019. The Council then gave Mrs X 15 days to respond and make representations on the proposed changes. This was in line with the code of practice.
30. However, once the Council received and considered Mrs X’s representations, it sent out another amended EHC plan in September 2019, rather than a final amended plan. Overall, the Council sent out three amended EHC plans before it issued the final amended plan in October 2019.
31. The code of practice sets out that following representations, if the Council decides to continue to make amendments, it must issue the amended EHC plan within eight weeks of the original amendment notice. The code also does not reference any process which allows for a series of amendment notices.
32. The evidence suggests the Council wanted to take a collaborative approach with Mrs X to ensure her agreement before issuing the final amended plan. However, in doing this, the Council created unnecessary delay.
33. While collaborative working is encouraged by the code of practice, it should not be at the cost of adhering to the timescales. In this case, the Council should have issued the final amended notice within eight weeks of receiving Mrs X’s comments. The Council did not issue the final amended EHC plan until October 2019. This was a delay of around one month. This is fault.
34. I consider the fault caused Mrs X an injustice because again, if not for the delay, Mrs X would have had the opportunity to appeal to the Tribunal sooner.

Special education provision between July and October 2019

35. The Council has a duty to secure the special education provision set out within the EHC plan.
36. Y’s course ended in mid-July 2019. It is acknowledged that Y would not have received any education between July and August 2019 because of the summer holidays.
37. However, the evidence shows Y did not receive any special education provision between September and October 2019. This is fault.
38. It is difficult to state what injustice the fault has caused to Y. This is because Mrs X has appealed the EHC plan and it is not clear what the outcome of the tribunal will be. So, it is unclear what special education provision Y missed out on in September 2019. Therefore, I consider the fault identified has caused uncertainty.

Agreed action

39. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:

• Write to Mrs X to apologise for the injustice caused by the delays in the EHC plan amendment process.
• Pay Mrs X £300 to recognise the lost opportunity to bring her appeal to the Tribunal sooner and the uncertainty caused.

40. The Council should complete the above remedy within four weeks of the final decision.

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Final decision

41. I find fault with the Council’s actions. The Council has agreed to my recommendations. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman