Summary: The Council was not at fault for delaying a review of an Education, Health and Care plan, as it is permitted to do this under the Coronavirus Regulations. The Council was at fault for failing to provide the complainant with a corrected version of the plan in July 2019, but this did not cause an injustice. The Council was also at fault for failing to register a complaint about these matters, which caused an injustice it has agreed to remedy. The Council has also agreed to take steps to ensure this fault does not recur.

The complaint

1. I will refer to the complainant as Mrs H.
2. Mrs H complains:

• the Council has failed to explain how it has implemented actions agreed as a result of previous complaints;
• the Council failed to ensure elements of her daughter’s Education, Health and Care (EHC) plan were implemented;
• the Council failed to hold a review of the plan on time;
• the Council failed to provide a corrected copy of the EHC plan in July 2019, denying her the right to appeal it;
• a Council officer described the plan as “overcomplicated”; and
• the Council refused to register a complaint about these matters.

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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. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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 injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)
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)

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How I considered this complaint

8. I reviewed Mrs H’s correspondence with the Council, and a copy of her daughter’s EHC plan.

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What I found

9. I will refer to Mrs H’s daughter as P. P has a number of disabilities, and is subject to an EHC plan. Since April 2019, she has attended a specialist school.
10. On 5 July 2019, the Council issued a final EHC plan for P, but it neglected to include P’s school placement in the plan. On 31 July, it issued a corrected version of the plan, with the placement named, but it provided a copy of this only to P’s school, and not to Mrs H.
11. In January 2020, the Ombudsman made a final decision on a complaint Mrs H had made, about various aspects of the Council’s involvement in P’s education up to July 2019. We upheld this complaint and recommended a number of remedies for faults we had identified, which caused injustice to Mrs H and P.
12. On 30 June 2020, Mrs H submitted a new complaint to the Council. She noted the Council had apologised for faults which had been identified in several complaints over the previous years, but said it had not implemented the agreed actions from them, nor implemented the provision agreed in P’s EHC plan.
13. Mrs H also complained there had been no contact from the Council with P’s school or herself for the previous year, that the date on her copy of the plan did not match that of the school’s, and that no annual review of the EHC plan had yet been arranged despite being due. Mrs H asked the Council to explain its quality assurance process for special educational need and disability (SEND).
14. The Council responded on 7 July. It said “all improvement actions” had been implemented, but explained and acknowledged its oversight in failing to issue her a copy of the corrected EHC plan in July 2019.
15. The Council said it did not routinely contact schools or parents unless there was an issue to address, but noted Mrs H had had contact with P’s EHC plan co-ordinator in December. It acknowledged that P’s annual review had been postponed, but explained this was due to difficulties arising from the Covid-19 pandemic. The Council said it had explored alternative ways to undertake reviews with restrictions in place, but said it understood from the school Mrs H had declined the opportunity for a virtual review meeting and wished instead to wait until a face-to-face meeting could be arranged.
16. The Council said a meeting had taken place with the school on 1 July, as a pre-cursor to an annual review meeting on 14 July. The school had reported P was making progress, although it had identified some areas on which further work was needed.
17. The Council also said a conclusion from the meeting was that P’s EHC plan was over-complicated, and should be made more succinct. It said P’s EHC plan co-ordinator was due to attend the meeting on 14 July, where P’s preparation for adulthood would form part of the discussion.
18. The Council explained assuring the quality of its SEND work was a priority, and that there was a “strong accountability and oversight structure” in place. It also said it had recently published its SEND Strategy for 2020-22.
19. Mrs H responded on 8 July. She asked the Council to confirm it had registered the matter as a complaint, and said she had now submitted it through the Council’s online complaints portal.
20. Mrs H said she had not received confirmation of the implementation of the previously agreed actions, as the Council had said. She asked the Council for more information on these points, including the proposed restructure of the Council’s EHC team, the implementation of a communication plan, or the introduction of a new case management system. Mrs H acknowledged she had met P’s EHC plan coordinator, but said this was by chance during an open day at P’s school.
21. Mrs H said she was unaware any review dates had been scheduled. She said she had been invited to the meeting on 1 July by the school’s headteacher, during which the meeting on 14 July had been agreed. However, she said she had not declined a virtual meeting, and that this was instead the school’s decision.
22. Mrs H complained about the Council’s use of the word ‘overcomplicated’ to describe P’s plan. She said it was more correct to describe P’s needs as ‘complex’, although she acknowledged the plan needed to be clear and succinct.
23. Mrs H also complained the Council had failed to ensure the implementation of various elements of the provision agreed in the plan.
24. The Council replied on 14 July. It said it would not register the matter as a formal complaint, as it considered it was a continuation of Mrs H’s previous complaint which had been decided by the Ombudsman. It acknowledged Mrs H’s request for further information on the improvements the Council had made, and encouraged her to remain in contact with its SEND service for this.
25. After a further email from Mrs H, the Council wrote again on 16 July. It said accepting Mrs H’s complaint would involve the re-investigation of matters which had already been covered in previous complaints, and that the matter would be better served by her liaising with the SEND service to understood the improvements which had been made. The Council referred Mrs H to the Ombudsman if she wished to pursue the matter further.
26. Mrs H replied on 16 July. She acknowledged there had been a previous complaint, but highlighted the matters she was now raising were new, relating to events over the last year. She asked again for the Council to accept her new complaint. The Council replied on the same day, reiterating its decision and referring Mrs H again to the Ombudsman.
27. Mrs H approached the Ombudsman on 27 July. Separately, Mrs H instructed solicitors, who submitted a Pre-Action Protocol (PAP) letter to the Council on 21 August. The PAP letter reiterated the points of complaint Mrs H had made, and added that the Council’s failure to provide Mrs H with a copy of the corrected EHC plan in July 2019 unlawfully deprived her of her right to appeal it. The letter advised Mrs H would issue Judicial Review (JR) proceedings against the Council on 28 August, unless it:

• confirmed how all provision contained within P’s EHC plan would be implemented;
• confirmed the date and arrangements for the annual review;
• apologise the failure to implement the provision in the plan, and for calling it ‘over-complicated’;
• meet Mrs H’s legal costs in preparing the PAP letter.

28. The Council responded formally on 1 September. It again acknowledged the error it made around the issue of the July 2019 EHC plan, but pointed out there was no suggestion Mrs H had wished to appeal it anyway. It also explained the SEND Tribunal had previously criticised the Council because its EHC plans were unduly complicated, and this was the reason for its comment about P’s plan. It declined to offer an apology for this.
29. The Council rejected the allegation it had failed to arrange a review. It said a virtual review meeting had been arranged for 13 July, which Mrs H had requested be regarded simply as an ‘education meeting’ and that a conventional review be arranged for September. The Council also quoted the amended SEND regulations introduced by the Coronavirus Act, which meant it was not bound by the normal timescales which the regulations were in force. It said it could not confirm the exact date of the review, because the school had not yet returned from the summer holiday.
30. The Council acknowledged there had been a failure to fully implement the provision in P’s EHC plan, which it explained arose because of a communication breakdown with the school. It confirmed it would ensure the provision was in place from September.
31. However, the Council accepted the request for it to pay Mrs H’s reasonable costs in the preparation of the PAP letter.
32. Since we accepted the complaint for investigation, Mrs H has confirmed she is now pursuing JR proceedings about the implementation of the provision contained in the EHC plan. She also confirms the annual review was held on 29 September, and that she received a copy of the draft amended EHC plan on 27 November.

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Analysis

33. There are several distinct elements to Mrs H’s complaint. For clarity, I will address each in turn.

The failure to implement previously agreed actions

34. Mrs H says the Council has failed to implement, or failed to explain how it has implemented, actions it agreed as a consequence of previous complaints. This includes information about the restructure of its EHC team, the introduction of a new case management system, and the implementation of a communication plan.
35. The Ombudsman’s decision on Mrs H’s previous complaint, which we issued in January 2020, recommended the Council offer financial remedies to Mrs H and to P, for several different identified faults. However, we did not recommend any of the improvements Mrs H referred to in her more recent complaint, and so I can only assume these arose from older complaints which did not involve the Ombudsman.
36. The law says complainants should approach the Ombudsman within 12 months of becoming aware of the issue at the heart of their complaint. Although we may disapply this rule, we must first be satisfied there is a good reason for the complainant’s delay, and also that it remains possible to undertake a robust investigation given the passage of time.
37. On the information available to me, I do not know when these improvements were agreed or should have been implemented, but it appears clear it was longer ago than 12mths. Given Mrs H’s previous complaint to us, I consider it would be reasonable to have expected her to raise this issue sooner. For this reason, I am unable to disapply the 12mth time limit.
38. I have therefore not investigated this element of Mrs H’s complaint.
39. Mrs H has clarified that part of this element related to a commitment by the Council’s to “monitor” the implementation of P’s EHC plan, because of previous administrative failures. This commitment was made in a letter to Mrs H of 30 July 2019, and is therefore not out of time.
40. However, I consider the proposed monitoring of the plan’s implementation, and a complaint about a failure to do so, is closely related to Mrs H’s wider complaint about the Council’s failure to implement the provision. I will explain my findings on this point in the next section.

The failure to implement the provision agreed in P’s EHC plan

41. Mrs H has confirmed she is now pursuing JR proceedings, in relation to the Council’s failure to implement the provision in the plan. This means the Ombudsman no longer has jurisdiction to investigate this element of her complaint.
42. I have discontinued my investigation of this element of Mrs H’s complaint.

The failure to arrange a timely annual review

43. Mrs H complained at the end of June the Council had made no arrangements for a review. Although there were meetings on 1 and 14 July, these did not constitute proper review meetings. Mrs H says she did not decline a virtual meeting, and this was instead the school’s decision. Mrs H also complains that, now the review has been held, it did not properly consider the matter at hand, particularly about P’s provision or preparation for adulthood.
44. The Council rejects the allegation it failed to arrange the review in time, but says Mrs H asked for the review meeting to be held in September. It also highlights that the amended regulations have suspended the normal EHC plan review timescales, where they cannot be reasonably adhered to.
45. There is evidently some disagreement between Mrs H and the Council over which arrangements were for the review, and why it was eventually postponed to September. I cannot consolidate these on the evidence available to me.
46. However, I do not consider it is proportionate to investigate this further. The fact remains, as the Council has explained, the amendments to the SEND regulations mean it was not bound by the normal 12mth timescale for the review here anyway. The amended regulations applied between 1 May and 25 September, and so I do not consider I can find fault there was a delay in this time.
47. I do note Mrs H says the review was eventually held on 29 September. This is technically out of time, given the expiry of the amended regulations on 25 September, but I do not consider the additional four-day delay to be significant.
48. Mrs H has now criticised the format of the review, and what she considers to be omissions from it. However, this is a new issue, which did not form part of her complaint, and so it is premature for the Ombudsman to investigate it.
49. Furthermore, she now has the opportunity to make comments on the draft amended plan, for the Council to consider before it finalises it. And, once the plan has been finalised, Mrs H will then have the right to appeal its contents to the SEND Tribunal.
50. Even if Mrs H’s concerns about the review were not premature, therefore, it is unlikely the Ombudsman would investigate them, as there are more appropriate routes of redress for this.
51. I find no fault in this element of Mrs H’s complaint.

Denying Mrs H a right of appeal against the July 2019 EHC plan

52. The Council has acknowledged it failed to provide Mrs H a copy of the corrected EHC plan, issued on 31 July 2019. In her solicitors’ PAP letter, Mrs H alleged this unlawfully denied her right to appeal the plan.
53. It was clearly fault for the Council to have neglected to provide Mrs H a copy of the corrected plan, as it has conceded. However, I am not persuaded this represents an injustice.
54. As I understand it, the only difference between the first plan of 5 July (which Mrs H did receive) and the corrected one of 31 July was the inclusion of P’s school placement. P was already at the school at this point, and there was no suggestion the placement would not continue. Nor is there any suggestion that Mrs H wished to appeal the question of P’s placement. So I do not see what was lost by Mrs H not having a corrected copy of the plan.
55. And, if Mrs H had wished to appeal any other element of the plan, she still could have done so. The fact remains she had received a copy of the plan which accurately set out, for example, the agreed provision for P. If Mrs H had concerns about this, she could have submitted an appeal about it. Had she done so, I assume it would then have come to light there was a corrected version of the plan in circulation; but this is something which could easily have been addressed at that point.
56. So I do not accept Mrs H’s solicitor’s assertion the failure to provide a corrected version of the plan unlawfully prevented her from appealing. She could still have appealed the plan if she wished. And for the same reason, I also accept the Council’s point there is no suggestion she wished to appeal anyway.
57. I find fault, which did not cause injustice, in this element of Mrs H’s complaint.

The description of the plan as ‘overcomplicated’

58. Mrs H complains the Council, in its initial response to her complaint, described P’s EHC plan as ‘overcomplicated’. As part of her PAP letter, she sought an apology for this.
59. The Council has explained the Tribunal has criticised it, in the past, for producing EHC plans which are unduly complicated, making it difficult for those delivering the plan to adhere to it. The Council has said it wishes to simplify P’s plan for this reason.
60. It is not for me to make my own judgement on whether P’s plan is unduly complicated, or whether its complication simply reflects P’s needs. I do note, however, the plan (at least the version I have seen) is 43 pages long. This certainly is unusually lengthy, in my experience.
61. Either way, I do not consider there is anything significant here which bears investigation by the Ombudsman. The Council is evidently seeking to avoid further criticism from the Tribunal, which is a valid concern. There is no suggestion that, through simplifying the plan, the Council intends to remove anything of importance, or that this will negatively affect P.
62. And, if the Council does seek to alter the plan, Mrs H will have the right to appeal against this anyway. The Ombudsman has no power to decide on the appropriateness of the contents of an EHC plan, and so an investigation by us will not determine whether the Council should be permitted to simplify the plan in the way it wishes.
63. For this reason, I have discontinued my investigation of this element of Mrs H’s complaint.

The refusal to register a complaint about these matters

64. Mrs H sought to raise a complaint with the Council on 30 June. The Council provided a response to this, although it did not treat the matter as a formal complaint. When Mrs H then insisted it do so, the Council refused, as it considered she was seeking the re-investigation of her previous complaint.
65. I find fault here. Although I appreciate Mrs H made several references in her complaint to previous matters, it was clear she was not seeking the re-investigation of the previous complaint, but was instead complaining about new (albeit related) matters, which had occurred since then. It is very difficult to understand the Council’s insistence this did not represent a new complaint.
66. I consider the injustice arising from this fault is mitigated somewhat by the fact the Council did give a response to her concerns originally. Although this was seemingly not a formal complaint response, it did address the points she raised, and in some detail. The response was also very prompt, coming only a week after Mrs H had written to the Council.
67. In addition, the Council’s response to Mrs H’s PAP letter also gives a very detailed response to her concerns. So, in the substantive sense, I am satisfied the Council has addressed the points she raised, even without accepting it as a formal complaint.
68. The fact remains Mrs H should not have had to resort to submitting a PAP letter to get an answer to these points. I note the Council has agreed to pay her legal costs in preparing the PAP letter, and so there is no outstanding injustice to her in this respect; but I still consider the Council should offer a small financial remedy to reflect her unnecessary time and trouble here.
69. I also consider the Council should take steps to ensure its staff properly apply the complaint handling policy. Although I accept there are circumstances when it would be appropriate to reject a complaint, on the basis it had already been decided, I do not consider Mrs H’s complaint could reasonably have been categorised this way. I make a recommendation to this effect.
70. I find fault causing injustice in this element of Mrs H’s complaint.

Agreed action

71. Within one month of the date of my final decision, the Council has agreed to:

• offer to pay Mrs H £100, to reflect her time and trouble arising from its refusal to register her complaint; and
• discuss my findings with its complaint-handling staff, and ask them to note the Ombudsman will criticise a decision not to accept a complaint on the basis it has already been investigated, where the complaint raises clearly new issues, as in this case.

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Final decision

72. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman