Summary: Mrs X complains of a delay in amending her son B’s Education Health and Care Plan (EHCP). The Council is at fault and the delay caused injustice to B. Mrs X also complains the Council failed to complete actions agreed at mediation and that its complaint handling was poor. I have also found fault by the Council in relation to these matters. I have agreed a remedy with the Council of £1,400 to B to reflect missed educational support and £150 to Mrs X for her time and trouble in bringing the complaint.

The complaint

1. Mrs X complains of a delay of more than a year in amending her son B’s EHCP. She says as the result of the delay, B did not receive his annual review.
2. Mrs X also complains actions agreed by the Council at mediation were not completed in time to meet a deadline, and that a Council staff member who responded to her complaint was not sufficiently independent.

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What I have investigated

3. I have investigated Mrs X’s complaints about the delay in producing B’s EHCP and about the Council’s complaint processes.

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The Ombudsman’s role and powers

4. 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’. (Local Government Act 1974, section 24A(6), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the matter. (Local Government Act 1974, section 26(6), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. 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

8. I have spoken to Mrs X and considered information provided by herself and by the Council. I have also sent Mrs X and the Council a draft version of this decision for their comments.

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What I found

Amending an EHCP

9. Local authorities have a statutory duty to complete a review at least every 12 months for every child or young person with an EHCP. Within four weeks of the review meeting, the Council must decide whether it proposes to change the plan, amend it, or leave it as it is, and notify the parent and school of the decision.
10. The parent must be given at least 15 calendar days to comment on any proposed changes. The local authority must issue the amended EHCP within eight weeks of the original amendment notice.
11. Parents have a right of appeal against the Council’s decisions.

What happened

12. Mrs X has an adopted son, B, who has complex needs. As B approached his tenth birthday, she felt he needed to move to a specialist school. At his annual review meeting on 20 June 2019 she asked the Council to amend his EHCP. The Council agreed to amend the plan to recommend specialist provision for B. Mrs X was not given notice of the amendment decision until 8th August - nine weeks after the review meeting, in breach of a requirement for notification within four weeks.
13. Under statutory time limits the Council then had a further eight weeks to produce a final EHCP. In late November Mrs X formally complained that she had still not received a draft plan. The Council responded that a suitable special school for B had not been identified, Mrs X’s preferred school was full, and the Council was consulting alternatives. Mrs X was not satisfied with this response and asked for it to be reviewed. She asked for a meeting to discuss the school placement and when the Council did not respond, requested mediation
14. The Council issued a draft plan on 13th December 2019. Mrs X complained to the Council of multiple errors in the document, among them the inclusion of a different child’s name and an incorrect statement that B could not read. Mrs X felt the draft plan was “a cut and paste” exercise. She also objected to the draft plan on grounds it did not name her preferred school.
15. A Council SEN manager investigated the complaint. In an internal email the manager apologised for the use of the incorrect name and admitted to “missed opportunities to update the plan in more detail and accuracy” but said it would be “more beneficial” to update it once a new school had been identified. The manager added that amendments to the EHCP had been made in a “rushed manner to enable fresh rights of appeal to be issued to the parents”.
16. A mediation meeting took place on 13 January, in an advance of which Mrs X was issued with a second draft amended plan. At the mediation meeting Mrs X and a Council SEN manager agreed amendments to this plan, along with seven actions for the Council with completion dates. These included obtaining advice on whether adopted children such as B take priority over other children with EHCPs for admission to specialist schools and obtaining information on outreach from Mrs X’s preferred school.
17. Mrs X later complained to the manager that she had not completed some of these actions by the agreed date. Mrs X then received the Council’s final response to her complaint of 2019. It was signed by the same SEN manager who Mrs X had met at the mediation meeting and to whom she had recently complained. In her complaint response the manager said she was confident Mrs X’s concerns had been fully discussed at that meeting. The manager also said Mrs X had been given an update on all the actions agreed. As this was the Council’s final response, Mrs X complained to us. As well as raising the delay in finalising the new EHCP, she said given she had complained to this manager over her failure to complete the agreed actions and said the same person should not have been involved in her complaint.
18. On 6 February 2020 Mrs X appealed to the SEND tribunal in relation to her right to name her preferred school on the draft EHCP. During the appeal process a new draft EHCP – a “working document” was drawn up.
19. On 22 April the Council conceded to Mrs X’s appeal, following allocation of a place to B at a specialist school. In May a place became available at Mrs X’s preferred school and B was accepted into it. However, there was a delay in converting the tribunal “working document” into a final EHCP. The Council has said this was due to a key member of staff in the SEN team leaving.
20. In June Mrs X received a document from the Council described as B’s final amended plan. She complained she had not had a chance to comment on it and that amendments to the previous plan, agreed at the mediation meeting, had not been made. She said B’s next annual review had now to be postponed because of the lack of an amended EHCP.
21. The Council has told me this was an oversight owing to the large number of draft EHCPs in existence and a new member of staff who was unfamiliar with the background. The Council agreed to incorporate Mrs X’s amendments into the EHCP and suggested rescheduling B’s annual review until his first term at his new school. The EHCP was finalised on 7 July.
22. The final EHCP said the local authority would provide additional “top-up” funds to support B in achieving the outcomes listed until the end of the summer term 2020.

Analysis

23. The Council missed the statutory deadline to notify Mrs X of its intention to amend B’s EHCP. This is fault. Having notified her, a plan should have been finalised within eight weeks. Not counting the period during which the EHCP was under appeal to the SEND tribunal, production of the final plan took six months (27 weeks) longer than this. This is fault.
24. The main purpose of the amendment to the EHCP was to ensure B’s move to a new specialist school. B was offered a place at a special school in time for the new school year, albeit without a recent annual review. B also missed out on additional support in his mainstream school between December 2019 and June 2020. This was injustice. Mrs X was also put to considerable time and trouble in challenging the council’s decisions and errors.
25. Given Mrs X was in dispute with the SEN manager over completion of the actions arising from the mediation meeting, it was not appropriate that the same manager reviewed her complaint and suggested the meeting had satisfied her concerns. This was fault by the Council, as was the failure to complete the actions in time with the agreed deadlines.
26. Where fault has led to a loss of educational provision, we will usually recommend a payment of £200 to £600 a month to acknowledge the impact of that loss, taking into account factors such as the child’s SEN, any other educational provision made during that time and whether additional provision can now remedy that loss.
27. I recommended B receive £200 per month for loss of educational provision over seven months, with £150 paid to Mrs X for her trouble in making her complaints.

Agreed action

28. Within one month of the date of this decision the Council has agreed to:
1. Pay B £1400 to reflect the “top-up” educational support he missed out on between December 2019 and June 2020;
2. Pay Mrs X £150 for her time and trouble;
3. Apologise to Mrs X for the delay in completing B’s EHCP.

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Final decision

29. I have completed my investigation with a finding of fault causing injustice to Mrs X and B. I have recommended financial remedies for this injustice.

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Parts of the complaint that I did not investigate

30. I have not investigated the content of the EHCP Mrs X appealed to the SEND Tribunal, as matters under appeal are out of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman