Summary: Mrs X complained the Council delayed issuing a final Education, Health and Care Plan following an annual review. We find the Council was at fault. It has agreed to pay Mrs X £500 in recognition of Y’s missed education and pay a further £200 in recognition of the trouble she was caused.

The complaint

1. Mrs X complained the Council delayed in issuing a final EHC Plan following an annual review. She said the delay resulted in her child, Y, being out of school, decline in Y’s and Mrs X mental wellbeing and Mrs X having to take time off work.

Back to top

The Ombudsman’s role and powers

2. 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)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

7. I considered the information provided by Mrs X and the Council’s response to her complaint.
8. I have considered the relevant legislation and statutory guidance, set out below.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal background

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
12. An annual review is a meeting where the local authority reviews the EHC plan. It will consider the progress towards achieving the outcomes written in the EHC plan and whether anything has changed. The annual review usually brings together all those involved in helping achieve the outcomes written in the EHC plan. The school must prepare and send a report of the review meeting to everyone invited within two weeks of the meeting.
13. After the review, the Council has four weeks to send the child’s parents a decision notice. This outlines whether the EHC Plan is to continue; whether it needs changing or if it is to end. If the Council decides to amend the EHC plan it must do that without delay. It must issue an amendment notice detailing the proposed amendments. The parents or young person must be given 15 calendar days to comment on the proposed changes. Following representations, if the Council decides to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the original amendment notice.

What happened

14. In September 2019 Y’s Annual Review meeting took place. Both the school and Mrs X said that the current placement was not suitable and did not meet Y’s needs, therefore the EHC Plan needed amending.
15. In November 2019, the Council notified Mrs X it would amend Y’s EHC Plan to reflect the change in school placement. Mrs X contacted the Council to voice her concerns and complain about the Council’s delay in deciding to amend Y’s EHC plan.
16. Between November and December 2019, the Council and Mrs X were working together to find an appropriate school for Y.
17. In December 2019, a school contacted the Council and confirmed it could meet Y’s needs and offered a place to start “as soon as possible”. The Council informed Mrs X of the offer, and she accepted it on the same day. The following day Mrs X applied for school transport for Y. The Council and Mrs X agreed for Y to start her new school after the Christmas break in January 2020.
18. With the new school place secured, the Council told Mrs X that it would issue Y’s final EHC Plan shortly and she could ask for amendments if necessary. The Council expected to issue the plan before December 2019.
19. In January 2020 Y was due to start at the new school, but the Council did not process the transport application and Mrs X could not get Y to the new school. That meant Y missed out on three weeks of education. Y started attending the new school before the Council issued the amended EHC Plan, naming the school.
20. In February 2020 the Council sent the draft amended EHC Plan to Mrs X. Eight days after receiving the draft, Mrs X requested amendments, saying that the part A she submitted was not included in the draft, and Y’s dyslexia diagnosis was missing from the draft. Ten days after receiving the amendments request the Council asked Mrs X to provide a diagnosis report. At this point Mrs X complained to us, but as the Council was still considering her complaint, we advised Mrs X to wait for its final response which was due in mid-February.
21. At the end of February 2020 Mrs X asked the Council to issue the final amended EHC Plan so that she could appeal to SEND.
22. In March 2020, the Council issued the final amended EHC Plan for Y including all the amendments that Mrs X requested.
23. The Council responded to Mrs X’s complaint in March 2020 and again in June 2020. In response to Mrs X’s complaint, the Council accepted had delayed in issuing Y’s EHC plan, putting Mrs X to avoidable time and trouble. It offered her a remedy of £100. Mrs X felt that this was not a true reflection of the stress and anxiety that the delay had caused to her and Y so she brought her complaint to the Ombudsman.
24. In response to my enquiries the Council recognised there was a significant delay in issuing Y’s amended EHC Plan and Y had missed out on three weeks education. Those delays caused Mrs X avoidable distress and anxiety. Additionally, she spent time and effort in complaining to the Council, who did not reply to her complaint in the agreed timescales. That caused further avoidable distress.
25. The Council apologised for the delays and the distress caused to Mrs X and Y. It offered the following remedies:
• £500 in recognition of the injustice arising from the delay in issuing the EHC Plan and the education Y missed as a result.
• £200 in recognition of the avoidable time and effort Mrs X and Y spent in pursuing their complaint the Council.

My findings

26. The Council has accepted it was at fault for delays in issuing Y’s amended EHC plan and for failing to provide Y a school place for three weeks. In response to my investigation, it has offered to financially remedy Mrs X and Y further, for the injustice caused by its faults.
27. In considering whether the Council’s new offer remedies the injustice caused, I have referred to the Ombudsman’s guidance on remedies. This says:
• Where a person has lost educational provision due to council fault, we will usually recommend a remedy payment of between £200 and £600 a month.
• The Ombudsman will also recommend payments, where appropriate, in recognition of distress caused by Council fault and the time and trouble expended because of that fault. These are symbolic payments of between £100 - £300. We consider factors such as the severity of the distress and length of time it went on for.
28. Given Y’s special educational need, and specialist provision needed, I am satisfied a payment of £500 sufficiently remedies the missed education.
29. The Councils fault caused a three-month delay in issuing the EHC plan that caused Mrs X avoidable distress and time and trouble chasing it up with the Council. The Council offered £200 and I am satisfied this remedies the injustice caused.

Agreed action

30. Within one month of the date of our final decision, the Council has agreed to:
1. write to Mrs X and Y and apologise for the for the delays in issuing the EHC plan and the avoidable distress and anxiety it caused her;
2. pay Mrs X £500 to be used as she sees fit for Y’s benefit, in recognition of Y’s lost and inadequate educational provision and the distress this caused Y;
3. pay Mrs X £200 in recognition of the time and trouble the spent pursuing the Council to issue the final EHC plan.

Back to top

Final decision

31. The Council was at fault for delays in issuing a final amended EHC plan following an annual review. It has agreed to my recommendations to remedy the injustice caused, therefore, I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman