Summary: Mrs J complains her son G is attending a school that cannot meet the provision specified in his Education, Health and Care (EHC) plan. She says the Council did not issue G’s amended EHC plan within the statutory guidance timescales and failed to provide documents to her that it agreed to during its complaint process. We find fault with the delay by the Council in issuing G’s amended EHC plan which caused distress, uncertainty, and delayed Mrs J’s right to appeal to a tribunal. The Council has agreed to apologise to Mrs J, make a payment for the injustice caused and will review its processes for amending EHC plans.

The complaint

1. Mrs J complains;

• Her son G is not receiving the provision specified in his EHC plan and the school he attends has told the Council it cannot deliver his provision,
• The Council delayed issuing G’s amended EHC plan following an annual review and did not meet the statutory guidance timescales. This caused her distress, uncertainty and delayed her right of appeal to a tribunal,
• The Council failed to provide her documents it had agreed to in its stage 1 and stage 2 complaint process. She says she had to spend time chasing these documents. Mrs J also says in its complaint responses, the Council said it had not received replies from some schools about a place for G when she later found it had had a response. She says she had to spend more time getting the accurate responses that should have been provided earlier.

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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 First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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

5. I read the complaint and made enquiries with the Council. I spoke with Mrs J on the telephone. I invited Mrs J and the Council to comment on a draft decision and considered any comments made in response.

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What I found

6. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
7. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
8. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Annual reviews

9. The SEND Code of Practice says councils must review a child’s EHC plan every 12 months. These annual reviews consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan.
10. Councils are responsible for ensuring annual reviews take place, but they ask schools to convene them. Schools must invite a local authority SEN officer and a local authority social care representative, and circulate any information, at least two weeks before the meeting. Following the review, the school must send a report of the meeting to everyone invited within two weeks. The report must set out recommendations on any amendments required to the EHC plan. (SEND Code of Practice 2015, paragraph 9.176)
11. The Code says that within four weeks of the review, the council must decide whether it proposes to keep the EHC plan as it is, amend it, or cease to maintain the plan. It must then tell the child's parent and the school its decision.
12. If the Council decides to amend the plan, it must issue the amended EHC plan within eight weeks of the original amendment notice. Parents have appeal rights if there is a refusal to amend and EHC plan, or if they disagree with the content of an amended plan.

School provision

13. G has diagnosed conditions which include autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD). G attends a mainstream secondary school which I will refer to as School A. G has a EHC plan that was first issued in draft form in September 2020 and names School A.
14. A final version of G’s EHC plan was issued in October 2020. Mrs J says School A cannot meet G’s provision specified in his EHC plan.
15. In response to my enquiries, the Council said School A had written to it in September 2020 detailing its concerns about meeting G’s provision specified in his EHC plan. The Council said it wrote back to School A to address the concerns raised and how it can meet provision.
16. In May 2021, Mrs J requested that G be moved to School B, which is a specialist school for children with learning disabilities.
17. The Council said that it’s Area Provision Panel considered the request, but its view was the G did not meet the requirements for placement in School B. It also said that’s G’s provision should continue to be met in School A. The Council said G meets the criteria for a specialist school placement within a social, emotional and mental health (SEMH) provision. It said it has identified a school, School C, that can provide the SEMH provision and if Mrs J wishes to explore this then she should contact the Council.
18. Mrs J does not want G to go to School C and said the Council should consider all the information it has been provided as to why School C is not right for G.
19. When discussing this complaint with me, Mrs J said she is now taking the matter to tribunal.

Annual review & delay in issuing EHC plan

20. Mrs J said the Council took 24 weeks to issue the final amended version of G’s EHC plan following an annual review in March 2021, which was longer than the statutory guidance says it should take.
21. The Council said the EHC plan annual review was held on 15 March 2021. It said it issued an acknowledgement of receipt letter to School A on 16 April 2021.
22. The Council said it issued its decision to amend G’s EHC plan on 14 May 2021. It said this was four weeks and four days later than it should have been, and this was linked to the amount of annual reviews it had to carry out. It said the proposed amended and final EHC plans were issued within the timescale after this point.
23. The amended EHC plan was dated 19 August 2021.

Complaint handling

24. Mrs J said she requested a copy of the provision panel decision and the Council did not provide it to her, despite agreeing to do so at stage 1 and stage 2 of its complaints process. Mrs J said she did eventually get a copy of the decision, but she had to ask the Council again after she had received the complaint responses.
25. In response to my enquiries the Council said it sent the requested documents when responding to the stage 2 complaint. It said when Mrs J queried the documents it had sent, it provided further documentation and clarity on any outstanding documents.
26. She also said the Council said it had not received responses from some of the schools it was consulting with about a potential place for G, but documentation she had obtained shows it had received a response.
27. In response to my enquiries, the Council said at the time the stage 2 investigator reviewed the case the documents sent were the only ones that were on file and available to the investigator. It said this was an oversight and it would like to apologise.

Analysis

School provision

28. G’s education provision is listed as School A in his EHC plan. There was some concern from School A that it could not meet G’s provision. The Council responded to those concerns and advised how School A could meet the provision. I have not seen any further evidence from School A that it still cannot meet the provision.
29. The Council has said that G could attend a school with SEMH provision, but Mrs J does not wish for G to attend the school identified by the Council. She would like G to attend a different type of school and will need to apply to the tribunal to change this, which she has said she is doing.
30. I do not find fault by the Council in respect of the provision provided to G. It has addressed concerns raised by School A and offered a different type of school that may be better suited to G.

Annual review & delay in issuing EHC plan

31. The Council acknowledges there was a delay of four weeks and four days between the annual EHC plan review and the decision to amend the plan being issued.
32. It said after that initial delay the timescales were met for issuing the final amended plan. This was not the case. The statutory guidance says the amended plan must be issued as quickly as possible and within eight weeks of the original amendment notice.
33. The decision to amend the plan was dated 14 May 2021. This means the final plan should have been issued by 9 July 2021 at the latest. The final amended plan for G was issued 19 August 2021. This means there was a further six-week delay.
34. The delays by the Council in issuing G’s ECH plan amendment notice and final amended plan total almost eleven weeks. This was fault by the Council, delayed Mrs J’s right to appeal to tribunal and caused distress and uncertainty.
35. The impact of any delay to changes to G’s provision being put in place by issuing the final plan was reduced by the summer holiday period.

Complaint handling

36. The Council agreed to send documentation to Mrs J at Stage 1 and Stage 2 of its complaint process. At stage 1 it did not send what Mrs J had requested. At Stage 2, Mrs J had to query the documentation sent and then the Council provided further documents. This was fault by the Council and meant Mrs J had to spend her time repeatedly requesting documents that should have been provided at stage 1.
37. In respect of the information the Council had received from schools it had consulted with; the Council has acknowledged some of the responses were not available to the investigator of the stage 2 complaint. This meant an inaccurate statement was made to Mrs J which she then had to use her time to follow up on to get an accurate response. This was fault by the Council.

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Agreed action

38. To remedy the injustice caused to Mrs J and her son G, the Council has agreed to take the following action within one month of the final decision;

• Apologise to Mrs J for the delay in amending G’s EHC plan and the delays in providing information to her during the complaint process.
• Pay Mrs J £100 for the delay in issuing G’s amended EHC plan which caused distress, uncertainty and delayed her right of appeal to a tribunal.

39. The Council has also agreed to look at how it can improve its processes to prevent future incidents of this nature. Within three months of a final decision, the Council will;

• Review its processes for reviewing EHC plans to ensure its staff are aware of the timescales for issuing amended plans.
• Reviews its process for complaint handling to ensure documents are available to its investigators when responding to complaints of this nature.

40. The Council will provide evidence to the Ombudsman of having completed the above actions.

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Final decision

41. I close this investigation with a finding of fault against the Council for the reasons mentioned in this statement. The Council has agreed to take action to remedy the injustice caused to Mrs J and her son G.

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Investigator's decision on behalf of the Ombudsman