Summary: Mrs X complained about how the Council delayed issuing her child’s Education, Health and Care Plan. She said its delay prevented her from exercising her right of appeal sooner and led to loss of provision for her child. The Council was at fault for the delay in finalising the Education, Health and Care Plan. This caused Mrs X’s family significant distress, frustration, time and trouble, loss of provision and the child was disadvantaged by not having an up-to-date Plan for a year. The Council will take action to remedy the injustice caused to the child and Mrs X’s family.

The complaint

1. Mrs X complains about the Council’s delay in issuing her child’s, Y, final Education, Health and Care Plan. As a result, Mrs X says the Council’s delay prevented her from exercising her right of appeal sooner and it led to loss of provision for Y. Mrs X said this was because Y remained in an unsuitable school for longer than she should have.
2. Mrs X says the Council’s failings has affected Y’s mental health and self‑confidence. Mrs X says the matter has also caused her family significant distress and time and trouble chasing the Council for updates on Y’s Education, Health and Care Plan.

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The Ombudsman’s role and powers

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. 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.
5. 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. (Local Government Act 1974, section 26(6)(a), as amended)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. 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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How I considered this complaint

8. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries.
9. I sent Mrs X and the Council a copy of my draft decision and considered the comments received before reaching a final decision.

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What I found

Education, Health and Care Plans

10. 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. The Ombudsman cannot investigate or make changes to the sections about special educational provision. Only the SEND Tribunal can do this.

Annual Reviews

11. Councils should ensure an annual review of the child’s EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain, amend or cease to maintain the EHC Plan.
12. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
13. Where a council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
14. The council must give the parent or young person at least 15 calendar days to comment on the proposed changes. (s22 (2) (c) SEND Regulations 2014)
15. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within 8 weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
16. Councils are not obliged to provide exactly what each parent requests, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of any individual child.
17. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal.
18. Parents do not have a right of appeal until a final EHC Plan (or decision not to issue a Plan) is made and a decision letter issued by the Council.

What happened

19. This chronology includes key events in this case and does not cover everything that happened.
20. Y has complex special educational needs and has an EHC Plan. Y attended school A, a specialist unit within a mainstream school.
21. In June 2020, Y’s EHC Plan annual review (AR) was carried out.
22. In July 2020, Mrs X wrote to school A and the Council. She requested a further meeting to be held in mid-September 2020 so Y’s EHC Plan could be properly discussed and for further amendments to be made to the Plan. School A replied to Mrs X and copied the Council into the email. It explained it was in the process of updating Y’s Plan with the professional reports and to add the provisions discussed in the AR meeting. It acknowledged the delay in finalising and issuing Y’s Plan and asked the Council to advise it on its duty to return Y’s Plan in line with the SEND code. School A agreed to meet Mrs X in September 2020 as she requested.
23. In August 2020, Mrs X told school A that she would like Y to move to another school, school B, a mainstream school with access to speech and language centre. Mrs X said she thought school B would be a good fit for Y as her main area of need was speech and language. Mrs X felt an emergency review of Y’s Plan was required. In September 2020, Mrs X forwarded her August 2020 email to the Council. This was so the Council was aware she was considering school B for Y.
24. In early October 2020, Mrs X had a meeting with school A and the Council. Mrs X sent her parental comments regarding Y’s draft Plan to the Council. By mid‑October 2020, school A forwarded Y’s June 2020 AR paperwork to the Council and informed it of Mrs X’s request for a consultation with school B.
25. In November 2020, Mrs X chased the Council for an update on Y’s Plan. She said school A was no longer suitable for Y as she was not allowed to see her peers with similar needs. She also said Y was being bullied which caused her distress and frustration. Mrs X asked if the Council had consulted with school B and how soon Y would transfer to school B. The Council said it only recently received the AR paperwork and it was the first it heard about Mrs X’s intention to move Y to another school. School A explained playtimes were staggered throughout the school due to COVID-19, so it was not possible for pupils to see each other during playtimes. Also, that other pupils were placed with mainstream peers according to their needs. School A explained the various support/ provisions it had put in place for Y. This included both individual and group sessions with different peers including her peers with similar needs and life skills group.
26. In November and December 2020, the Council consulted with school B if it could be named in Y’s EHC Plan due to her speech and language needs. School B raised its concerns about admitting Y. It said school B was not suitable for Y as it could not meet her complex needs and that admitting Y to school B would be prejudicial to the efficient education of other pupils. In response to school B’s objection, school A submitted a supporting document explaining why school B would be suitable to meet Y’s speech and language needs.
27. In December 2020, the Council issued Y’s draft amendment Plan. Mrs X requested a further EHC Plan meeting in mid‑January. She said this was because not all the aspects of Y’s Plan were discussed during the last review meeting.
28. On 22 December 2020, following school B’s objection to admit Y, a resourcing panel meeting was held to discuss her placement. The panel advised the Council to continue discussions with school B to address the concerns the school had raised.
29. In February 2021, the Council held a further meeting with school B about Y’s admission to the school based on her speech and language needs. School B maintained its objection to admit Y as it felt further clarification was needed regarding the contents of Y’s Plan.
30. On 22 February 2021, Mrs X made a formal complaint to the Council for its failure to issue Y’s final EHC plan in line with statutory guidelines. Mrs X acknowledged the delay was due to school B’s objection to be named in Y’s Plan. But she said after the Council consulted with school B, it should have made a decision whether to name school B in the Plan. Mrs X said the Council had a legal duty to name school B in Y’s Plan except if it could demonstrate the school was unsuitable for Y or that it would negatively impact other pupils’ education. Mrs X said due to the injustice the Council’s failure to issue Y’s final Plan had caused to Y, it should deal with her complaint in a timely manner and not apply its usual complaints process timescales. Mrs X asked the Council to issue Y’s final EHC Plan as soon as possible or within 5 working days of receiving her complaint.
31. On 8 March 2021, the Council sent a new consultation to school B and the school asked for further reports and evidence to support the view Y’s main needs were speech and language.
32. The Council issued its stage 1 response to Mrs X’s complaint on 9 March 2021. It explained that although the AR meeting was held in June 2020, it did not receive the paperwork until October 2021. The Council also said the delays was due to further meetings held with Mrs X as she requested following the AR and the difficulties with naming a school placement in Y’s Plan. It said it had sought additional advice from professionals and Y’s Plan had been updated to reflect her main needs were speech and language. It said it shared Y’s updated proposed Plan with school B for further consideration. The Council said school B was reviewing the matter and once it received the school’s updated consultation response, Y’s case would be allocated to the next available panel for further consideration. The Council said it would inform Mrs X the outcome of the meeting as soon as the decision was made. It acknowledged the AR process had taken longer than it expected, and it apologised for the distress the delay had caused to Mrs X and her family.
33. On 31 March 2021, school B maintained the school was not suitable for Y as it could not meet her complex needs. The panel reconsidered Y’s placement request and school B’s updated response. The panel found school B would appropriately meet her needs based on the professional reports received. The panel advised the Council to arrange a transition meeting to support Y’s move to school B.
34. The Council held the transition meeting with school B in April 2021.
35. On 12 May 2021, the Council issued Y’s final EHC Plan and school B was named in her Plan.
36. On 28 May 2021, Mrs X asked for her complaint to be escalated to stage 2. Mrs X acknowledged the Council’s apology and its explanation for the delays in finalising Y’s Plan. But she remained dissatisfied as it still took the Council more than two months after its stage 1 response to issue Y’s final plan. She said the entire AR process took nearly a year to complete. Mrs X said the matter caused significant distress to her and her family and the time and trouble chasing the Council for updates. She said its delay meant Y remained in school A longer than she should have and missed out on provisions available to her in school B. Mrs X asked the Council to remedy the distress caused to her and her family and asked how it would prevent such delays in the future.
37. In the Council’s stage 2 response, it reiterated the reasons for Y’s EHC Plan delays as explained in its stage 1 response. The Council said it had apologised to Mrs X for the distress caused and confirmed Mrs X’s preferred choice of school had been named in Y’s final Plan. Therefore, the Council would not consider Mrs X’s complaint further unless she provided it with new and relevant information.
38. Mrs X remained dissatisfied with the Council’s response. She made a complained to the Ombudsman.

Analysis

39. Y’s EHC Plan AR meeting was held in June 2020 and the Council issued her final Plan in May 2021. This was fault and not in line with the statutory guidelines.
40. One of the reasons for the delay as mentioned in the Council’s response to Mrs X’s complaint was that school A sent it the AR paperwork in October 2020. I find the Council could have chased school A up sooner for the paperwork following the June 2020 AR meeting. This was fault.
41. While I note the Council made reasonable efforts to consult with school B and have the school named in Y’s EHC Plan, there was a significant delay in finalising Y’s Plan. It took the Council 11 months to conclude the AR process. The Council should have issued Y’s final Plan within the statutory timescales. This would have given Mrs X the right of appeal to the SEND Tribunal earlier than May 2021 and she could have objected to the EHC Plan contents if she wished to exercise her appeal right. This was fault. The Council’s failure to issue Y’s final Plan in a timely manner caused Mrs X’s family significant distress, frustration and put Mrs X to the time and trouble chasing the Council and making a complaint. This also meant Y did not have an up-to-date EHC Plan for longer than necessary. And although, Y did not receive the provisions as contained in her May 2021 final Plan sooner, she remained in school A with ongoing access to education during the period of the Council’s delay.

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Agreed action

42. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Y and Mrs X for the delay in finalising Y’s Education, Health and Care Plan
• pay Mrs X £300 for the delay in finalising Y’s Education, Health and Care Plan. This is to acknowledge the distress this caused to Mrs X’s family and the delay in giving Mrs X the right of appeal to the SEND Tribunal sooner
• pay Mrs X £300 to acknowledge Y was disadvantaged as she did not receive the provision contained in her May 2021 final Plan sooner than she did
• by training or other means remind staff of the importance of carrying out and completing Education, Health and Care Plan annual reviews in a timely manner in line with statutory guidelines.

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Final decision

43. I find evidence of fault by the Council leading to injustice. The Council has agreed to take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman