Summary: Mrs X complains that the Council delayed in issuing her son’s Education, Health & Care Plan (EHCP). Having issued the EHCP, she says the Council failed to advise her on her appeal rights. Mrs X also complains the Council delayed her son’s annual review and about its approach to amending the EHCP. The Council is at fault and has caused injustice to Mrs X and B. It has agreed to financial remedies and an apology.

The complaint

1. The complainant, who I refer to here as Mrs X, complains that the Council:
1. Took almost a year to finalise her son B’s Education, Health and Care Plan (EHCP) following its decision to amend the plan;
2. Did not provide information on her right to appeal the content of the EHCP;
3. Delayed B’s annual review;
4. Re-assessed B’s needs immediately prior to the annual review and issued a new draft EHCP shortly after the annual review. It then failed to finalise this new EHCP within statutory time limits.
2. Mrs X says that as a result of these failings her family has been put through inconvenience, distress and upset and B has missed out on provision. She seeks a financial remedy. She also wants B’s EHCP finalised.

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What I have investigated

3. I have investigated the Council’s adherence to statutory time limits in connection with B’s EHCP and its communications with Mrs X.

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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 or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended) SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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

7. I spoke to Mrs X and considered information provided by Mrs X and the Council. I also considered the relevant legislation and guidance. Mrs X and the Council now have an opportunity to comment on my draft decision. I considered their comments before making my final decision.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Legislation and guidance

9. The Children & Families Act 2014 and its associated regulations and guidance and the Special Educational Needs (SEN) Code of Practice govern Council’s responsibilities towards children with SEN.
10. An Education, Health and Care Plan (EHCP) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
11. Councils must review EHCPs at least yearly. They should decide whether to amend the plan within four weeks of the annual review. If the Council decides an amendment is necessary, it must issue a final amended plan within eight weeks of the decision.

What happened

12. Mrs X’s son, B, has an EHCP. In June 2019 the Council carried out an annual review and decided to amend B’s plan. It did not issue B’s final EHCP until early June 2020, a delay of almost a year. The Council has apologised to Mrs X for this delay.
13. The Council did not initially provide Mrs X with guidance on her right to appeal the EHCP. The Council has apologised to Mrs X for this error.
14. Having obtained the information, Mrs X appealed the content of the EHCP to a SEN tribunal. From March 2020 all schools were closed due to the national lockdown and B learned from home. At end of June 2020, within a few weeks of issuing B’s final plan, the Council told Mrs X it intended to start a reassessment of B’s needs. It said this re-assessment would be completed within the prescribed timescales and was necessary to ensure B’s plan was updated with further information and reflect his change in situation due to the Covid-19 pandemic. Mrs X objected to the re-assessment. She pointed out that B’s annual review was due within a short time.
15. B’s annual review was carried out in early July 2020, which was several weeks late. The Council then issued Mrs X with a new draft EHCP. The Council told me that rather than finalise the EHCP it decided to use it as a “working document” for the purpose of responding to the Mrs X’s appeal to the SEN tribunal.
16. Mrs X told me she became confused about which version of the EHCP she was working from. The Council said its action was an error and did not comply with the SEN Code of Practice guidance. It said it recognised this had caused unnecessary confusion and anxiety for Mrs X and should not have happened, and that it had put staff training in place to clarify the procedures.
17. The Council did not oppose Mrs X’s appeal to the SEND tribunal and agreed to her proposed amendments to the EHCP. It said it intended to complete B’s reassessment and issue a draft amended EHCP by early January 2021.
18. It offered Mrs X £500 in recognition of distress caused by its failures to implement its procedures in dealing with B’s review.
19. In response to my enquiries about timing of EHCPs in the Council it said that between 1st January 2020 and 30th September 2020, it had issued 180 final plans of which 123 were outside the statutory timelines. This equates to 68% of plans being issued late. The Council said it recognised this was an area that required urgent improvement and had implemented an SEN improvement plan. By 30th November 2020, a further 22 final plans were issued, 7 of which were outside statutory timelines – this equates to 32% of plans issued outside timelines. The Council is predicting 17% of final plans issued will be outside statutory guidelines in December.

Analysis

20. Under statutory guidance, if a Council decides to amend an EHCP following an annual review meeting it must issue the final plan within a maximum of twelve weeks of the meeting. The Council took 50 weeks to finalise the EHCP. It then failed to provide Mrs X with guidance on her appeal rights and failed to manage the 2020 review correctly. This is fault by the Council, which caused injustice to Mrs X and B.
21. 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.
22. Taking into account the impact of lockdown, I recommended the Council pay Mrs X £1,500 to reflect loss of provision for B over six months. I also recommended it pay Mrs X £500 to reflect its failure to implement the correct processes in connection with her appeal rights and the 2020 annual review, and a further £250 to compensate for her time and trouble in bringing the complaint. The Council has already paid Mrs X £500 and has agreed to pay a further £1,750 and to make an apology.
23. I did not recommend a service improvement as the Council has provided evidence it has already taken action to address delays in EHCP production.

Agreed action

24. Within one month of my decision the Council has agreed to apologise to Mrs X and to pay:
1. £1,500 to compensate for loss of educational provision for B;
2. £250 to compensate Mrs X for her time and trouble in bringing the complaint.

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Final decision

25. I have concluded my investigation with a finding of fault by the Council which has caused injustice. The Council has agreed financial remedies and to make an apology.

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Parts of the complaint that I did not investigate

26. I did not investigate the content of the EHCP, which Mrs X appealed to a SEN tribunal and is therefore out of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman