Summary: Mrs X complains about the Council’s actions leading up to the provision of an Education, Health and Care plan for her child. She says the Council incurred delays and provided misleading information about the process. Mrs X also complains about the Council’s handling of her complaint. She says the Council’s actions caused unnecessary stress and uncertainty to her child and the wider family. We find fault by the Council in this matter and the Council has agreed a remedy to address the injustice caused.

The complaint

1. Mrs X complains about the Council’s actions leading up to the provision of an Education, Health and Care plan for her child. She says the Council incurred delays and provided misleading information about the process.
2. Mrs X also complains about the Council’s handling of her complaint.
3. Mrs X says the Council’s actions caused unnecessary stress and uncertainty to her child and the wider family.

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What I have investigated

4. The Council has upheld Mrs X’s complaints. It acknowledges there were delays and says it will amend its guidance to staff to address the errors it made. I have investigated the injustice caused to Mrs X and her child and whether the Council adequately addressed the fault it identified.

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The Ombudsman’s role and powers

5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. 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)
9. 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.
10. 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.
11. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
12. The courts have said where a complainant has appealed to the tribunal, we cannot investigate a council’s decision relating to the provision of alternative education pending the appeal, nor seek a remedy for the council’s failures.
13. We may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
14. 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)
15. Under our information sharing agreement, we will share our decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

16. I considered the information provided by Mrs X and the Council’s response to her complaint.
17. I have made enquiries to the Council and considered the information it provided.
18. Mrs X and the Council had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
19. I have also considered the relevant legislation and statutory guidance as set out below.

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What I found

Special Educational Needs and Education, Health and Care plans

20. A child or young person has Special Educational Needs if they have a learning difficulty or disability which calls for special educational provision to be made for them. Most children have these needs met within local early years, mainstream school or college settings. Support at this level is called SEN support.
21. Some may require an Education, Health and Care assessment for the local authority to decide whether it is necessary to make provision in accordance with an Education, Health and Care plan (EHCP).
22. The purpose of an EHCP is to make special educational provision to meet the child or young person’s special educational needs. It is also to secure the best possible outcomes for them across education, health and social care and, as they get older, prepare them for adulthood.
23. The Children and Families Act 2014 (‘the Act’), the Special Educational Needs Code of Practice 2015 (‘the Code’) and the Special Educational Needs and Disabilities Regulations 2014 (‘the Regulations’) provide detailed guidance to councils about how they should manage the process of:

• assessing children and young people for an EHCP;
• how to decide whether to issue a plan;
• the content of the plan, and
• how to implement, monitor or cease a plan.

24. If parents or a young person disagrees with the content of an EHCP or the proposed placement, they can appeal the First Tier Tribunal Special Educational Needs and Disabilities (SEND) Tribunal.

Special Educational Needs (SEN) Code of Practice

25. The annual review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the plan.
26. Paragraph 9.169 of the Code says “The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting…”
27. In practice the review covers not just the annual review meeting, but the Council’s decision to maintain, cease or amend the plan. Each of these decisions carries a right of appeal.
28. Where a council decides to amend the plan, it must notify the parents of this decision within four weeks of the review meeting.
29. Parents or the young person may tell the Council what amendments they would like to make to the plan.
30. Paragraph 9.196 of the Code says “Following representations from the child’s parent or the young person, if the local authority 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…”

The Council’s complaints policy

31. The Council’s complaint policy says at Stage 1, complaints should be acknowledged within five working days and a response provided within 20 working days.
32. The policy says the Council will tell the complainant within five working days if it will investigate their complaint at Stage 2. It says it will agree a reasonable timescale for investigation and should normally complete Stage 2 in 25 working days, extended to 65 working days in complex cases.

Background

33. Mrs X’s child, who I will refer to as Y, had an EHCP. Y has an Autistic Spectrum Disorder and takes medication for severe anxiety and depression. Y’s severe anxiety meant they were unable to attend mainstream school and the EHCP named an alternative education provider, School A.
34. Because of Y’s severe anxiety, they were unable to attend School A on a full-time basis. In about November 2018, the school and Mrs X agreed that Y would only attend when they felt able to.
35. Mrs X arranged for Y to attend a charity funded organisation (School B) which provides custom-made alternative education. Mrs X says School B provided a nurturing environment and engaged with Y to build their self-esteem. Y also attended a computer club which supported them in working towards computer science qualifications.
36. On 29 November 2018, Mrs X and Y attended the annual review of Y’s EHCP. Mrs X told the Council she was concerned about Y’s transition to Post -16 education. She felt Y would not be able to manage in a large college environment and asked the Council to arrange a custom-made package that would meet Y’s specific needs. Mrs X told the Council she wanted Y to attend School B.
37. The Council wrote to Mrs X on 4 March 2019. It said it had noted the recommendations made and decided to amend Y’s EHCP.
38. Mrs X met with the Council on 5 March 2019. She asked the Council to provide an extended transition period for Y and to include the computer club as part of the provision named in the EHCP. Mrs X also asked the Council to consult with School B to arrange a custom-made package for Y.
39. The Council issued a draft amended EHCP to Mrs X on 3 April 2019. It acknowledged Y’s severe anxiety and depression and their history of self-harm. The plan also acknowledged the negative effect that Y’s attendance at mainstream school had on their mental health. It said Y should attend small group settings and should have a highly modified and personalised curriculum. The draft did not name an education provider for Y and did not say they should attend the computer club or School B as part of the EHCP provision.

What happened next

40. Mrs X complained to the Council on 17 June 2019. She said despite her chasing the Council for its decision, it had missed several statutory timescales within the EHCP process. Mrs X said she provided the Council with her comments about the draft EHCP and was told she would receive a response from the SEN panel. Mrs X said she had not received a final EHCP and the Council had failed to place Y’s needs central to the process.
41. The Council issued a second amended draft EHCP on 20 June 2019. It acknowledged Y’s anxiety caused by attending mainstream school, and the recommendation from Y’s psychiatrist that they receive a custom-made package. The plan did not name an education provider for Y and did not say they should attend the computer club or School B as part of the EHCP provision.
42. Mrs X told the Council she would provide her comments on the draft document and asked it to clarify the next steps and timescales.
43. The Council responded to Mrs X’s complaint on 1 July 2019 and apologised for its delayed response to the annual review. It said it could not name Mrs X’s choice of education providers because they were not registered under section 41 of the Children and Families Act 2014 as further education colleges.
44. Mrs X escalated her complaint to stage two on 8 July 2019. She acknowledged the apology but said the Council had not responded to several specific issues she had raised. Mrs X asked the Council to explain why her case had taken so long and for clarification about whether the Council had presented the matter to the SEN Panel.
45. The Council provided a third amended draft EHCP on 31 July 2019. The plan named a mainstream college (School C) as the further education setting for Y.
46. On 22 August 2019, the Council issued a final EHCP. The plan said Y would receive a highly modified, differentiated and personalised curriculum at School C.
47. Mrs X says she attended mediation with the Council to discuss her concerns about the EHCP. However, Mrs X says the meeting, held in October 2019, was unsuccessful as it did not address or resolve her concerns. Mrs X also says the Council did not respond to her correspondence during this period and that time was wasted as a result.
48. On 18 November 2019, Mrs X appealed to the Tribunal.
49. Mrs X says School B and the computer club continued to allow Y to attend in the hope they would secure funding from the Council. However, Mrs X says both organisations told her they may not be able to continue to provide their service without future funding.

The Council’s complaint response

50. The Council responded to Mrs X’s stage two complaint on 22 November 2019. It acknowledged the delays in providing the final EHCP and said this was due to a backlog of cases following a service restructure and vacancies within the team. It said it incurred further delays because it had followed an incorrect procedure regarding funding for Y’s placement and had wrongly referred Y’s case to the SEN panel.
51. The Council apologised for the delay and said it had taken steps to ensure it did not repeat the errors identified. It said this included closer monitoring of cases to ensure statutory deadlines were met and amending its guidance about Post-16 provision. The Council offered Mrs X a payment of £200 in recognition of the time and trouble taken to pursue the complaint and the delays incurred.
52. Mrs X was dissatisfied with the Council’s response and brought her complaint to us. Because the appeal to the Tribunal was not concluded we were unable to investigate at that time.
53. Mrs X met with the Council in February 2020 to discuss the EHCP and provided further comments on the plan in March 2020.
54. The Council replied to Mrs X in March 2020 and said it could not agree the changes she had requested. It said School C would continue to fund Y’s attendance at School B and a personal budget was agreed to cover the cost of Y’s attendance at the computer club. The Council said both provisions would continue for the academic year. However, it also said there was no clear pathway for progression for Y and a suitable college needed to be identified for September 2020.
55. In April 2020, the Tribunal agreed the custom-made learning package requested by Mrs X.
56. On 6 May 2020, the Council issued an amended final EHCP which named School B and the computer club as the education providers for Y.
57. Following the completion of the Tribunal, Mrs X remained unhappy with the Council’s actions and brought her complaint to us.

Analysis

58. I have decided to exercise discretion and investigate the injustice caused to Mrs X and Y dating back to November 2018. This is because the Council upheld Mrs X’s complaints dating back to this period.
59. The Council has upheld Mrs X’s complaint. Therefore, I have not further investigated the actions which led to the complaint as it is unlikely that we could add to the Council’s investigation. My investigation focuses on whether the Council adequately addressed the fault it identified and the injustice this caused.

Delays in the EHCP process

60. The evidence shows two periods of delay. The first is the Council’s failure to notify Mrs X of its decision within four weeks of the annual review meeting. The second is the Council’s failure to provide the final EHCP within eight weeks of the original amendment notice.
61. The annual review was held on 29 November 2018. Had the statutory timescales been adhered to, the EHCP should have been issued by the end of March 2019. The plan was issued on 22 August 2019, a delay of five months. This delay is fault.
62. I acknowledge the Council says these delays were caused partly due to a backlog of cases and a shortage of staff. Nevertheless, the statutory timescales within the Code are clear and must be adhered to. In addition, the Council also acknowledges errors which also contributed to the delays.

Complaint handling

63. Mrs X’s Stage 1 complaint was made on 17 June 2019. The Council responded on 1 July 2019. This is within the timescale stated in the Council’s complaint handling policy.
64. However, Mrs X escalated her complaint to Stage 2 on 8 July 2019 and the Council did not respond until 22 November 2019. This exceeds the maximum timescale of 65 working days and is evidence of delay. This delay is fault by the Council.
65. Mrs X says she feels the Council did not adequately investigate her complaint due to a lack of detail and errors in its response. I acknowledge Mrs X remains unhappy with the Council’s response, but this is the reason for bringing the complaint to us. I have seen no evidence of fault in the investigation of Mrs X’s complaint and acknowledge that the Council upheld the complaints made.

Injustice to Mrs X and Y

66. Having identified fault, I must consider if the Council’s actions caused significant injustice to Mrs X and Y.
67. The period for which we can consider any injustice is limited. As previously stated, the courts have said where a complainant has appealed to the Tribunal, we cannot investigate a council’s decision relating to the provision of alternative education pending the appeal, nor seek a remedy for the council’s failures. Also, the law says we cannot normally investigate a complaint when someone can appeal to a tribunal.
68. Mrs X was able to appeal to the Tribunal once the final EHCP was issued on 22 August 2019. Therefore, the period of injustice which can be considered is March 2019 (when the EHCP should have been issued) to 22 August 2019.
69. The injustice to Y is the anxiety, uncertainty and distress caused by the delays in the EHCP process. Mrs X says Y was very worried they would not be able to continue to attend School B and the computer club if funding was not agreed. She says Y also felt guilty about continuing to attend while the issue of funding was still under review.
70. It is fortunate both organisations allowed Y to continue to attend while the matter was under review, and that Y did not miss this provision. However, I acknowledge the uncertainty about Y’s future education, compounded by the Council’s delays, likely worsened Y’s feelings of anxiety. I consider this delay caused additional distress and caused an injustice to Y.
71. The injustice to Mrs X is the uncertainty and worry she says she felt during this period. Mrs X says she was very worried Y might self-harm due to the stress they were experiencing. She says it was very upsetting to see Y become increasingly distressed by the situation. She says she was also very worried about Y’s future education and whether the funding for provision from School B and the computer club would be agreed.
72. Mrs X was unable to appeal to the Tribunal until the final EHCP was issued in August 2019. The Tribunal decided that Y should receive the custom-made package from School B and attend the computer club. The Council’s delay meant agreeing this provision was delayed. If the final plan had been issued in line with the statutory timescales, Mrs X could have appealed to the Tribunal earlier, which in turn would have reduced the period of uncertainty for herself and Y.
73. I acknowledge that Mrs X did not immediately appeal when the EHCP was issued. However, Mrs X says this was because she received a recommendation to attend mediation shortly after receiving the final EHCP. Mrs X says she attended mediation based on this recommendation.
74. Mrs X says she spent days researching the EHCP process and associated policies and Acts because of the Council’s delays and inaccurate information. She says she also spent a considerable amount of time and trouble chasing the progress of her complaint. Mrs X says this had a significant impact on her emotional wellbeing and that she felt she was in a continual battle with the Council.
75. The Council apologised for the delays in the EHCP process and offered £200 in recognition of the distress caused and the time and trouble taken. It is positive the Council has itself identified its failings as part of its review of Mrs X’s complaints. It says it has taken steps to address the fault identified and to ensure similar errors do not occur again.
76. Having considered the injustice caused, it is appropriate that the Council has apologised for the delays in the review process. However, I do not consider it has adequately addressed the injustice to Mrs X and Y. I also acknowledge that Mrs X considers the Council’s response indicates it did not fully consider her complaint.

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Agreed actions

77. The Council has agreed to take the following action within four weeks of the final decision:

• provide an apology to Mrs X;
• provide a separate apology to Y;

• make a payment of £500 to Y to support their progression in their studies. This payment is in recognition of the distress and uncertainty caused to Y;

• make a payment of £500 to Mrs X in recognition of the distress and uncertainty caused to her, and
• make a further payment of £200 to Mrs X for the time and trouble incurred.

78. The Council has also agreed to take the additional following action within three months of the final decision:
• carry out an audit to identify any other cases where the Council failed to follow statutory timescales within the EHCP review process and develop an action plan to appropriately address and remedy any delays identified;
• remind its staff of the requirement to adhere to the statutory timescales within the EHCP process;
• provide evidence the Council has amended its guidance to staff regarding Post -16 provision, specifically, to show that Post-16 cases do not need to be referred to its Specialist Education Panel, and
• remind its staff to adhere to its complaints policy.
79. The Council is required to provide us with evidence it has completed the above actions.

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Final decision

80. I have found fault by the Council and it has agreed to take the above action to remedy the injustice caused. I have therefore concluded my investigation.

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Parts of the complaint that I did not investigate

81. I have not investigated the Council’s actions after 22 August 2019. This is because Mrs X had the right to appeal to the tribunal from the date the final plan was issued.
82. As I have said above, we cannot investigate a complaint if someone has the right to appeal to a tribunal. So, the Council’s actions from 22 August 2019 are outside of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman