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Oxfordshire County Council (21 009 141)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 02 May 2022

The Ombudsman's final decision:

Summary: Mrs X complains the Council delayed in issuing her daughter’s final EHC plan. We find fault as there was significant delay in the Council issuing the final EHC plan. We have made recommendations for the Council to remedy the injustice caused to Mrs X and her daughter.

The complaint

  1. Mrs X complains the Council delayed in issuing her daughter’s final EHC plan. Mrs X says the Council’s failure to meet the statutory timeframes delayed her right of appeal and delayed her daughter’s placement at a residential college.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 spoke with Mrs X and considered the information she provided.
  2. I made enquiries with the Council and considered the information it provided.
  3. I sent two draft decision to Mrs X and the Council and considered their comments.
  4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Legislation and guidance

  1. A child with special educational needs and disabilities (SEND) 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. Section F details the special educational provision the child needs.
  2. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for producing and reviewing EHC Plans. The Code is based on the Children and Families Act 2014 and the SEN Regulations 2014.
    • Councils must review an EHC Plan at least every 12 months.
    • Councils must decide within four weeks of a review meeting whether they propose to keep the EHC Plan as it is, amend the Plan or end it. The council must notify the child’s parent and school of its decision.
    • If the council decides to amend the Plan, it must send the child’s parent details of the proposed amendments, including copies of any evidence to support the proposed changes. It must allow them 15 days to comment.
    • Following comments from the child’s parent, if the council decides to continue to make the amendments, it must issue the amended final EHC Plan as soon as possible, and in any case within eight weeks of issuing the notice to amend.
  3. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. They only have this right once the final amended Plan is issued.

What happened

  1. Mrs X’s daughter, Ms A, has an EHC plan.
  2. The Council held an annual review meeting in July 2020. The Council issued a draft amended EHC plan on 11 August 2020. It later issued a second draft EHC plan on 10 September 2020.
  3. The Council issued the final EHC plan on 24 June 2021. The Council named an online learning provider as Ms A’s educational placement. Mrs X said this was unexpected as she thought the Council had agreed a placement at a residential college.
  4. Mrs X was unhappy with the delay and complained to the Council. In August 2021, the Council responded to Mrs X’s complaint and accepted it did not issue Ms A’s EHC plan within the statutory timescales. The Council apologised for the distress caused by the fault.
  5. Mrs X was unhappy with the Council’s response as the Council had not offered any remedy to Ms A. Mrs X asked the Council to review her complaint.
  6. In November 2021, the Council responded to Mrs X’s complaint. The Council said it considered the online learning provider to be a suitable placement for Ms A and that the residential college Mrs X wanted was not suitable. The Council said it therefore did not consider the delay in issuing the plan caused any injustice on Ms A.
  7. The Council advised Mrs X she could appeal the EHC plan to the Special Educational Needs and Disability (SEND) tribunal. Mrs X appealed.
  8. In January 2022, the Council reached an agreement with Mrs X to name the residential college as Ms A’s educational placement. The Council signed a consent order agreeing to this and to issue a final EHC plan within 20 calendar days of the date of the consent order.
  9. In response to our enquiries, the Council confirmed it had issued a final EHC plan naming the residential college and that it had agreed a date with Mrs X for Ms A to move. The Council also confirmed it would only maintain a plan until the end of the academic year in which the young person turns 25. For Ms X, this would be July 2023.

Analysis

  1. There is no dispute the Council was at fault for not issuing the final EHC plan within the statutory timescales. The Council has already accepted fault this. The Council should have issued the final plan by October 2020, but it did not issue the final plan until June 2021. This was a delay of just over eight months.
  2. The Council originally did not consider the fault caused any injustice to Ms A. This is because it did not consider the residential college placement to be suitable for her. Mrs X appropriately engaged her appeal rights to challenge this with the SEND tribunal.
  3. However, the Council has now conceded the appeal and has agreed to name the residential college as Ms A’s placement. Therefore, the delay in issuing Ms A’s final EHC plan caused Ms A an injustice. This is because Ms A’s right to appeal the EHC plan was delayed, and this would have been frustrating. We also consider the fault caused Mrs X time and trouble in having to pursue the Council to issue the final EHC plan.
  4. If Ms A’s right to appeal had not been delayed, it is likely the Council would have agreed to name the residential college earlier. Therefore, it is likely Mrs A would also have started her placement at the residential college at least eight months earlier if not for the fault. This will likely have had an impact on her educational progress. We consider the fault therefore had a significant disruptive impact on Mrs X’s and Ms A’s life.

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Agreed action

  1. To remedy the injustice caused by the fault identified, the Council has agreed to complete the following:
    • Apologise to Mrs X for the delay in issuing Ms A’s final EHC plan and the injustice this caused her and Ms A.
    • Pay Ms A £600 per month to recognise A’s loss of provision caused by the delay in issuing the final EHC plan. The total delay was around 8 months. The total to be paid is £4800.
    • Pay Ms A £800 to recognise the distress and disruption caused by the delay in issuing the final EHC plan.
    • Pay Mrs X £1000 to recognise the frustration, distress, time and trouble, and disruption caused to her by the delay in issuing the final EHC plan.
    • The Council should remind relevant staff of the statutory timescales for issuing EHC plans following an annual review. The Council should also highlight the importance of meeting the timescales to ensure the right to appeal the final plan is not delayed.
  2. The Council should complete the above within four weeks of the final decision.

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Final decision

  1. I find fault with the Council for the significant delay in issuing the final EHC plan. The Council accepts my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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