The Ombudsman's final decision:
Summary: Mrs D complained the Council delayed dealing with Mr F’s Education, Health and Care plan after the annual review. She also complained the Council delayed responding to the complaint. We find the Council was at fault for its delays in finalising Mr F’s Education, Health and Care plan. It also delayed responding to the complaint. The Council has agreed to our recommendations to address the injustice caused by fault.
- Mrs D complained the Council delayed dealing with Mr F’s Education, Health and Care (EHC) plan after the annual review. She says the Council failed to meet the statutory timescales on several occasions. She also complained the Council delayed responding to the complaint.
- Mrs D says the Council’s delays have caused significant distress for the whole family.
- Mrs D is representing Mr F and his parents (Mr and Mrs E) in bringing this complaint to the Ombudsman.
The Ombudsman’s role and powers
- 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)
- 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)
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
- I considered information from Mrs D. I made written enquiries of the Council and considered information it sent in response.
- Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and statutory guidance
- A child with special educational needs 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. We cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this.
- Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that councils must review an EHC plan at least once every 12 months. The guidance says that within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
- Paragraph 9.194 says where the council proposes to amend an EHC plan, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parent or the young person.
- Paragraph 9.195 confirms the parent or young person must be given 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHC plan.
- Paragraph 9.196 says that after receiving any representations form the child’s parent or the young person, if the council decides to continue to amend the EHC plan, it must issue the amended plan as quickly as possible and within eight weeks of the original amendment notice.
- For those transferring from secondary school to a post-16 institution, the EHC plan must be reviewed and amended by 31 March in the year of transfer.
The Council’s complaints procedure
- The Council aims to provide a full response to a complaint at stage one within 20 working days. If a complainant remains dissatisfied, they can have their case reviewed. The timescale for a formal response at stage two is 20 working days. For more complex cases it will be a maximum of 65 working days.
- Mr and Mrs E’s son, Mr F, has complex needs. He has an EHC plan.
- The college Mr F was attending (College A) held an annual review of his EHC plan on 17 September 2020. Mr F was due to transfer to the next phase of his educational career the following year. The front page of the annual review form stated that no amendments were necessary. Mr and Mr E also wished for Mr F to stay at College A.
- The Council received the annual review paperwork on 29 September.
- Mr and Mrs E complained to the Council on 14 October. They said it had failed to decide within the statutory timescales whether it would maintain, amend, or cease to maintain Mr F’s EHC plan.
- The Council emailed Mr and Mrs E on 27 November and apologised for the delay in responding to the complaint. It said it would investigate the matter.
- The Council consulted with College A and another college (College B) on 12 December.
- The Council confirmed to Mr and Mrs E on 15 December that it would amend Mr F’s EHC plan. It sent them a draft amended EHC plan.
- Mr and Mrs E replied on the same day with their amendments. They also said their preference was for Mr F to stay at College A.
- The Council chased College A and B for their responses to the consultation on 14 January 2021. College A replied on the same day and said it would offer Mr F a place. College B responded on 19 January and asked for further information to understand Mr F’s needs.
- College A confirmed the funding for Mr F’s placement on 5 February.
- Mr and Mrs E complained to the Council on 1 April that it had failed to issue Mr F’s final EHC plan by the deadline of 31 March. They also said the Council had failed to respond to their earlier complaint.
- Mrs D emailed the Council on Mr and Mrs E’s behalf on 21 April. She said they had still not received a finalised EHC plan. She also asked for it to treat the matter as a stage two complaint.
- The Council emailed College B and provided it with some information it had asked for on 22 April. College B responded the following day and said it could not meet Mr F’s needs.
- Mr and Mrs E instructed a solicitor to write a letter to the Council threatening legal action because of the delay in finalising Mr F’s EHC plan. The solicitor wrote to the Council on 19 May.
- The Council finalised Mr F’s EHC plan on 26 May. There was a mistake in it, and so it issued a further final EHC plan on 11 June.
- The Council responded to Mr and Mrs E’s complaints on 16 June. It apologised for not responding sooner. It also apologised that it missed the statutory timescales.
- Mr and Mrs E remained dissatisfied with the Council’s response and referred their complaint to the Ombudsman.
- There was a delay of two months in the Council notifying Mr and Mrs E whether it would amend, maintain, or cease to maintain Mr F’s EHC plan. This is fault. The Council should have also issued the final EHC plan by 9 February 2021. It did not do so until over three months later.
- College B asked for information on 19 January 2021, but the Council did not provide it until 22 April 2021. It is not clear whether the Council did anything to progress matters much sooner to ensure College B had the information it requested.
- The Council also significantly delayed responding to Mr and Mrs E’s complaints. It should have issued a stage one response to their complaint of 14 October 2020 by 11 November 2020. They did not receive a response until 16 June 2021. It should have also responded to their second complaint of 1 April 2021 by 4 May 2021. Again, it did not respond until 16 June 2021.
- The Council’s faults have caused Mr and Mrs E a significant injustice. They were put to time and trouble in chasing the Council. They also had the distress of not knowing whether the Council was going to finalise Mr F’s EHC plan in time for new academic year.
- When the Council responded to my enquiries, it offered to pay Mr and Mrs E £500 to reflect their time and trouble and distress. I consider this to be suitable remedy for their injustice.
- Mr and Mrs E say they had to pay £300 for their solicitor to write a letter to the Council. They would like the Council to reimburse this. The Ombudsman only recommends a reimbursement of legal fees in exceptional circumstances and where matters are complex. I do not consider Mr and Mrs E’s case is so exceptional and complex that it warrants such a payment.
- To address the injustice caused by fault, by 13 May 2022 the Council has agreed to:
- Issue a further apology to Mr and Mrs E.
- Pay Mr and Mrs E £500 to reflect their time and trouble and distress.
- Issue written reminders to relevant staff to ensure they:
- Adhere to the timescales set out in the complaints procedure.
- Adhere to the timescales set out in legislation after the annual review of an EHC plan.
- I have found fault by the Council, which caused an injustice. The Council has agreed to my recommendations and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman