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Milton Keynes Council (20 012 131)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 10 Sep 2021

The Ombudsman's final decision:

Summary: Ms X complains about delay by the Council in complying with a Tribunal’s order to issue an amended education, health and care plan for her son. The Council is at fault as it contributed to a delay in complying with the Tribunal’s order and issuing an amended final EHC plan. The Council offered an apology and payment of £150 which is an appropriate and proportionate remedy for the avoidable time and trouble caused to Ms X.

The complaint

  1. Ms X complains that the Council:
      1. Failed to make appropriate special educational needs provision for her son, Y, and unnecessarily contested her appeal against the content of Y’s Education Health and Care Plan (EHC Plan). Ms X considers that as a result she incurred legal fees in excess of £28000.
      2. Failed to comply with the Tribunal’s decision and issue an amended EHC plan within five weeks. As a result, Y did not have an up to date EHC plan in place between September and November 2020.

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What I have investigated

  1. I have investigated complaint b). I explain at the end of this statement why I am not investigating complaint a).

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The Ombudsman’s role and powers

  1. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  2. 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. But we cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  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. 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

  1. I have:
  • Considered the complaint and the information provided by Mrs X;
  • Made enquiries of the Council and considered the information provided;
  • Invited Mrs X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

  1. The Special Educational Needs and Disability Regulations 2014 provide that a local authority shall issue an amended EHC plan within five weeks of the SEND Tribunal’s order to amend the provision set out in the plan.
  2. The Special Educational Needs and Disability Code of Practice (the Code) provides that the advice and information gathered during the EHC needs assessment much be attached in section K – the appendices to the EHC plan.

What happened

  1. Ms X’s son, Y, has a EHC plan. Following an annual review in July 2019 the Council amended Y’s EHC plan. Ms X considered the amended EHC plan did not meet Y’s needs so appealed to the SEND Tribunal. The SEND Tribunal amended sections B, F and I of the EHC plan.
  2. The Council was required to issue the amended EHC plan by 25 August which was five weeks from the date of the order. The Council’s records show that on 4 August the Council sent the amended EHC plan to Ms X. I shall call this version 4. Ms X contacted the Council as she considered the EHC plan was not in accordance with the Tribunal’s order as she considered it was from an earlier working document.
  3. The Council says it used the correct working document to produce the EHC plan. However, it had retained old information in section B so removed this and issued version 5 on 25 August.
  4. Ms X’s solicitor sent an email to the Council contacted as he considered the EHC plan did not reflect the working document used by the Tribunal. He pointed out that some wording had not been included in the EHC plan. The Council has said this related to the differentiated curriculum and skills taught through the literacy programme. Ms X has said the Council omitted key information which was necessary to meet Y’s needs. Ms X’s solicitor chased the Council for the amended EHC plan on 9 September. The Council issued version 6 of the EHC plan on the same day.
  5. On 14 September, Ms X sent an email to the Council stating that section K which contained the appendices was out of date and did not represent the contents of the EHC plan. The Council agreed minor amendments to the EHC plan but declined to remove some appendices, including the original educational psychologist report, as these related to professional advice provided for the original EHC plan and this was not an instruction from the Tribunal. I understand the Council issued version 7 of the EHC plan.
  6. Ms X’s solicitor and the Council discussed and agreed the documents which should be included in section K. An email from Ms X’s solicitor shows he considered it to be appropriate for the original educational psychologist report to remain in section K.
  7. The Council sent version 8 of the EHC plan to Ms X on 28 October. Ms X contacted the Council as the EHC plan still contained pages and appendix H which it had agreed to remove following its discussion with Ms X’s representative. The Council issued the version 9 which was the final EHC plan on 2 November.
  8. Ms X made a complaint to the Council as she considered it had not issued the final EHC plan within five weeks of the Tribunal order. In its response of September 2020 the Council acknowledged mistakes had been made, apologised and offered a remedy of £150. In its further response of January 2021 the Council acknowledged the need to amend the EHC plan had caused frustration and concern to Ms X. But it considered the amendments did not have a direct impact on the provision agreed at the Tribunal so its offer of £150 for Ms X’s time and trouble remained appropriate.
  9. Ms X considers the Council delayed in issuing a final EHC plan which complied with Tribunal order which caused her to incur more solicitors’ costs and caused her son not to receive the provision in the EHC plan.

My assessment

  1. The Council was required to comply with the Tribunal order and issued the final EHC plan within five weeks of the order. The Council took 10 weeks to issue the final EHC plan.
  2. The Council issued the EHC plan without the required wording set out in the working document and it also included appendix H when it had agreed to remove this appendix. This is fault which contributed to the EHC plan not being issued within five weeks of the date of the Tribunal’s order.
  3. However, I cannot find the fault by the Council caused the entire delay in issuing the final EHC plan. I do not consider the Council to be at fault for not amending section K before Ms X requested the amendments on 14 September. The Tribunal order did not require the amendment of section K. It was therefore appropriate for the Council to discuss with Ms X and her solicitor whether it should amend section K as Ms X requested. This inevitably contributed to the time taken to issue Y’s EHC plan. It was also open to Ms X to have raised all her concerns including about section K when the Council issued version 4 in August.
  4. Furthermore, the Council did not agree with all of Ms X’s requested amendments to section K. So, Ms X would have always had to discuss with the Council which appendices should be included and this will have added to the time taken to issue the EHC plan.
  5. The Council acknowledged its mistakes when issuing Y’s EHC plan and offered Ms X a remedy of £150 to acknowledge her avoidable time and trouble. It also apologised. The question for me is whether this is an appropriate and proportionate remedy.
  6. Ms X says she incurred additional solicitor’s fees as a result of the mistakes by the Council. We will only exceptionally recommend the reimbursement of legal fees if caused by the fault by the Council and if they were unavoidable. I do not consider it is appropriate to recommend the Council reimburses Ms X’s legal costs. Ms X raised her concerns about the EHC plans directly with the Council so I am not satisfied her legal costs were unavoidable. I am mindful Ms X was concerned about the time taken by the Council to rectify the mistakes which is why she involved her solicitor. But the fact she could raise her concerns direct with the Council does not persuade me she needed her solicitor to act on her behalf. I therefore consider the Council’s apology and remedy of £150 is proportionate to acknowledge the avoidable time and trouble caused to Ms X by the fault by the Council.
  7. I have considered if the Council’s contribution to the delay in issuing the final EHC plan caused injustice to Y. Y did not have an up to date EHC plan for over a term. But, as I explain above, I do not consider the Council was responsible for entire delay. I am also mindful Y was attending a specialist school which was aware of his needs. So, I do not consider the Council’s contribution to the delay in issuing the final EHC plan caused significant injustice to Y.
  8. The Council acknowledges Y has not received the counselling and occupational therapy set out in his EHC plan but says this was not caused by the delay in issuing the final EHC plan. Ms X says the Council is still not making this provision. I have not considered the complaint that Y is not receiving all the provision in his EHC plan as this is a separate complaint from the delay in issuing the EHC plan. Ms X has also made a complaint to the Council which must be given the opportunity to consider and respond to the complaint before we can consider it. It is open to Ms X to make a further complaint to the Ombudsman if she remains unhappy once the Council has completed its complaints procedure.

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Final decision

  1. The Council is at fault as it contributed to a delay in complying with the SEND Tribunal’s order and issuing an amended final EHC plan. The Council offered an apology and payment of £150 which is an appropriate and proportionate remedy for the avoidable time and trouble caused to Ms X. I have therefore completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated complaint a). This is because Ms X appealed to the SEND Tribunal about the content of Y’s EHC plan. We do not have jurisdiction to investigate where a person has appealed to the Tribunal from the date the appeal right arises. We also cannot investigate matters which are inextricably linked to the matter appealed. This means I cannot investigate the assessments carried out for the EHC plan which was appealed, the provision in that plan, the evidence provided by the Council for the Tribunal and its decision not to concede the appeal.

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Investigator's decision on behalf of the Ombudsman

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