Summary: Miss X complained the Council delayed finalising her son’s Education, Health and Care Plan causing distress and financial loss. We found the Council at fault. We recommended the Council provide Miss X with an apology and payment for distress, and act to prevent recurrence.

The complaint

1. Miss X complains the Council delayed finalising her son’s Education, Health and Care Plan (“EHCP”) following an annual review in January 2021. She says this caused distress, delayed her right to appeal and resulted in financial loss. This is because the family funded provision that it expected to be provided in the new final EHCP.

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What I have investigated

2. I have investigated the complaint at paragraph 1. At the end of this decision I have set out why I have not investigated other matters.

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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 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)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
7. 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)
8. 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

9. I spoke to Miss X and I reviewed information provided by Miss X and the Council.
10. I gave Miss X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

SEN Code of Practice; Annual Reviews

11. Councils must review an EHCP at least every 12 months.
12. Within 2 weeks of the review meeting the school must provide a report to the council with any recommended amendments.
13. Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
14. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content.
15. When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
16. Where the council does not agree the suggested changes it may still issue the final EHCP.
17. In any event the Council should issue a final EHCP to the parent and any school named within 8 weeks of the original amendment notice. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

What happened

18. The Council reviewed Y’s EHCP in January 2021.
19. In June the Council issued a notice to amend Y’s EHCP.
20. In October Miss X complained to the Council it had still not issued a final EHCP and was delaying her right to appeal.
21. The Council accepted delays, apologised and said it was working on sending a draft EHCP.
22. The Council sent a draft EHCP in November.
23. The Council completed a final EHCP dated 17 December 2021. Upon Miss X chasing a copy, the Council sent this to her on 19 January 2022.
24. Miss X then chased the Council for the letter to accompany the EHCP which would give her appeal rights. The Council sent this to her on 18 February 2022.
25. When I spoke to Miss X she explained she had spent roughly £5,000 to £10,000 on provision for Y over the last year. She wanted and expected the updated EHCP to include this provision, however it did not. She therefore intended to appeal to the Tribunal. Miss X confirmed there was no additional provision in the updated EHCP that Y had missed out on because of the delay.
26. In comments on a draft decision Miss X clarified that she had been reimbursed money spent towards Y’s therapy from his deputy account. She said Y would have spent an estimated £5,000 to £10,000 additional provision from his own money due to the delay in the Council finalising the EHCP 2021-22. She also expressed concerns about the Council’s ongoing actions.

Findings

27. The Council significantly delayed in deciding to amend Y’s EHCP following his annual review. This is fault causing Miss X distress and uncertainty.
28. The Council significantly delayed in issuing a draft EHCP following its decision to amend. This is fault causing Miss X further distress and uncertainty.
29. The Council delayed sending Miss X the final EHCP once completed. This is fault. Miss X was then put to time and trouble chasing the Council.
30. The Council also failed to notify Miss X of her right to appeal. This is fault. Miss X was then put to time and trouble chasing the Council.
31. Because of the Council’s delay, Miss X lost the opportunity to have her appeal heard sooner.
32. I cannot pre-empt the outcome of the appeal. If the appeal is successful Miss X may wish to ask the Council to remedy any further injustice arising due to the delayed appeal. Miss X may also contact the Ombudsman again if needed.

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Agreed action

33. To remedy the injustice set out above I recommend the Council carry out the following actions:
34. Within one month
• Provide Miss X with a further written apology for its delay;
• Pay Miss X £500 for distress, uncertainty and the loss of opportunity to have her appeal heard sooner.
35. Within three months:
• Identify the reasons for the Council’s delay in completing Y’s annual review, take action to prevent recurrence and update the Ombudsman on the actions taken.
36. The Council has accepted my recommendations.

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Final decision

37. I find the Council at fault for delay in completing Y’s EHCP annual review. The Council has accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

38. I did not investigate any complaints arising after Miss X contacted the Ombudsman. This is because it is reasonable to allow the Council the chance to investigate and respond to new matters through its complaints process first. If Miss X remains unhappy with the Council’s final response on any other matter she may contact the Ombudsman again.
39. I cannot investigate any complaint about the content of the December 2021 Final EHCP. This is because Miss X has a right to appeal to Tribunal if she is unhappy with the content and it is reasonable to expect her to use this right.

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Investigator's decision on behalf of the Ombudsman