Summary: Ms X complained that the Council failed to notify her within statutory timeframes about its intention to amend her son’s Education, Health and Care (EHC) plan, failed to issue the final EHC plan within timeframes, and delayed handling her complaint. Ms X said this denied her a right to appeal the EHC plan, cost her time and trouble, and caused unnecessary distress, inconvenience, and uncertainty. We find the Council at fault, and find the faults caused Ms X injustice. The Council has agreed to make a payment to Ms X to remedy the injustice caused. We are satisfied the Council has apologised and made improvements to its service.

The complaint

1. Ms X complained that the Council failed to notify her of its intention to amend her son’s Education, Health and Care (EHC) plan within statutory timeframes. She complained the Council failed to issue her son’s final amended EHC plan for over a year. She also complained the Council delayed handling her complaint.
2. Ms X said this meant her son did not get all the provision he could have had, if the plan had been issued in time. Ms X said this denied her a right to appeal the EHC plan for over a year. She said it caused unnecessary distress, inconvenience, uncertainty, and cost her time and trouble.

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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. If we are satisfied with an organisation’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)
5. 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

6. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint. Ms X and the Council had an opportunity to comment on earlier drafts of this statement. I considered all comments and further information received before I reached a final decision.
7. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Education, Health and Care (EHC) plans

8. Education, Health and Care (EHC) plans set out the special educational provision required to meet a child’s special educational needs. The government issued the Special Educational Needs and Disability Regulations (‘the Regulations’) in 2014 and the Special Educational Needs and Disability Code of Practice (‘the Code’) in January 2015. The Code provides statutory guidance on the law and the Regulations.
9. A council must review an EHC plan within 12 months from the date the plan was made. It must then review the plan every 12 months after this as a minimum.
10. The Code says a council must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan within four weeks of the review meeting. It says the council must notify the child’s parent about its decision within four weeks of the review meeting.
11. To amend an EHC plan, a council must send the parent a notice detailing the proposed amendments. This is called an amendment notice.
12. The Code says if, at a review, it is decided the EHC plan needs to be amended, the council should start the process of amending the plan without delay. It must then issue the amended EHC plan as quickly as possible, and within eight weeks of the amendment notice.

The Council’s complaints process

13. The Council’s complaints policy says it will respond to a complaint within ten working days. It says this may be extended to 20 working days for more complex complaints.

What happened

14. Ms X’s son, B, has special educational needs and an Education, Health and Care (EHC) plan. There was an annual review of B’s EHC plan at the end of January 2021.
15. At the end of April, the Council sent Ms X its decision letter, saying that it needed to amend B’s EHC plan. The Council said it would send Ms X an amendment notice in due course.
16. In early July, the Council sent Ms X the amendment notice.
17. At the end of September, Ms X emailed the Council saying she still had not received the final amended EHC plan.
18. At the end of October, Ms X complained to the Council about the delay getting the final EHC plan. She also complained about issues relating to her other child. The Council replied to Ms X’s complaint relating to her other child, but did not respond to her complaint about B’s EHC plan.
19. In January 2022, Ms X complained to the Ombudsman.
20. In the middle of January, the Council issued B’s final amended EHC plan.
21. Later in January, the Ombudsman asked the Council to respond to Ms X’s complaint.
22. The Council responded to Ms X’s complaint. The Council accepted that it had not sent the amendment notice within the statutory timeframes. It accepted that it had not issued B’s final amended EHC plan within statutory timeframes. The Council recognised that it had not responded to Ms X’s email in September. It also accepted that it did not respond to her complaint with the timeframes set out in its complaints policy.
23. The Council apologised to Ms X. It said it recognised that it needed to provide a remedy for what had gone wrong. The Council said this had caused Ms X stress and anxiety. It said on top of her previously upheld complaints, her faith in the Council’s ability to deliver a satisfactory service must be at a very low ebb.
24. The Council said it had consulted the Ombudsman’s published guidance on remedies. It offered Ms X £500 for her distress and £250 for her time and trouble. It said what actions it had taken to address the reasons for the failures.
25. The Ombudsman then took up Ms X’s complaint.

Analysis

Amendment notice

26. Ms X complains that the Council failed to notify her of its intention to amend B’s Education, Health and Care (EHC) plan within statutory timeframes.
27. At the annual review of B’s EHC plan in January 2021, the Council recognised that it needed to amend the plan. The Council should have sent its decision letter within four weeks (by the end of February). It actually sent the decision letter at the end of April: two months late. This is fault.
28. The Council sent Ms X the amendment notice in early July, over four months after it should have started amending the EHC plan.
29. In its response to the Ombudsman’s enquiries, the Council recognised that the Code says the amendment process should begin without delay. But the Council said the Code does not specify timescales. It recognised that best practice is to amend an EHC plan as soon as possible. The Council says it was not able to do this because of resource pressures at the time.
30. I find this delay is fault.
31. These faults caused Ms X injustice in that they caused inconvenience, unnecessary distress, and uncertainty.
32. I am satisfied that the Council has apologised for these injustices in its complaint response.

Delay issuing B’s final Education, Health and Care plan

33. Ms X complains the Council failed to issue B’s final amended EHC plan for over a year.
34. The Council issued the amendment notice in early July 2021. It should have issued the final amended EHC plan within eight weeks of the amendment notice, which would have been early September 2021. The Council actually issued the final amended EHC plan in mid-January 2022: four months late, and nearly a year after the annual review. This is fault.
35. This fault caused Ms X injustice because it denied her a right to appeal the final plan, had she wanted to. It caused her inconvenience, unnecessary distress, and uncertainty.
36. I am satisfied the Council has apologised for these injustices.

Delay in complaint handling

37. Ms X complains the Council delayed handling her complaint.
38. Ms X complained in October 2021. The Council failed to respond fully to this complaint: it only responded to the part of her complaint relating to her other child. The Council should have responded by late November. It did not respond to this part of Ms X’s complaint until February 2022, after it had been prompted to do so by the Ombudsman. This is fault.
39. The Council explained to the Ombudsman that it focussed on Ms X’s complaint regarding her other child. It says this was an oversight which it addressed as soon as the Ombudsman pointed it out in January 2022.
40. This fault caused Ms X injustice in that it cost her time and trouble, and caused inconvenience, unnecessary distress, and uncertainty.
41. I am satisfied the Council has apologised for these injustices.

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Agreed action

42. Within four weeks of this decision, the Council has agreed to make a payment to Ms X of £1050. This is made up as follows:
• £200 to reflect the inconvenience, uncertainty and unnecessary distress caused by the delays issuing the decision notice and the amendment notice;
• £400 to reflect the inconvenience, uncertainty and unnecessary distress caused by the four months of delay issuing the final EHC plan;
• £200 to reflect the inconvenience, uncertainty and unnecessary distress caused by the delay responding to Ms X’s complaint; and,
• £250 to reflect Ms X’s time and trouble caused by the delay responding to her complaint.
43. In arriving at these figures, I have considered the Ombudsman’s published guidance on remedies. I note that Ms X did not accept the Council’s financial remedy offer in its complaint response.
44. The Ombudsman will need to see evidence that this action has been completed.
45. I am satisfied that the Council has already made improvements to its service, as outlined in its complaint response to Ms X. This is the reason I have not proposed any service improvements.

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Final decision

46. I have completed my investigation. I uphold Ms X’s complaint because there is fault causing injustice. The Council has agreed to make a payment to Ms X to reflect the injustices caused. I am satisfied the Council has apologised for the injustices caused and taken appropriate action to prevent a future recurrence.

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Investigator's decision on behalf of the Ombudsman