Summary: Miss X complained about delays relating to the Council’s handling of the Education, Health, and Care Plan annual review process for her son. There is fault by the Council for significant delay in issuing a draft and final Plan following its decision to amend and also in the handling of her complaint. This caused a direct loss of provision to her son, delayed Miss X’s right to appeal, in addition to her time and trouble in chasing the Council for this. The Council has agreed to provide Miss X with an apology, a financial payment and to make service improvements to remedy the injustice caused.

The complaint

1. The complainant, whom I shall refer to as Miss X, complained about the Council in relation to her son's Education, Health, and Care Plan (EHCP). Specifically:
1. it delayed reviewing the Plan due in 2019;
2. she missed her chance to appeal after a review in October 2020 as she said she did not receive notification of the Council’s decision being published on its online system;
3. it has failed to finalise a Plan after a second review in April 2021; and
4. it delayed in dealing with her complaint and failed to provide adequate responses.
2. This significant delay has led to uncertainty and frustration, delayed her right to appeal, and Miss X said her son, whom I refer to as Y, has lost out on vital provision as his current plan no longer meets his needs.

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What I have investigated

3. Miss X’s complaint covers events from 2019, starting from a delayed annual review due that year. Miss X complained to the Ombudsman in April 2022 and normally historical issues would be caught out by the restriction in Paragraph 5 below. However, as matters are ongoing and issues raised relate to a continual sequence of delays in the EHCP process; I have exercised my discretion to look as far back as 2019.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I discussed the complaint with Miss X and considered her views.
9. I made enquiries of the Council and considered its written response and information it provided.
10. I considered the SEND Regulations 2014 and the SEN Code of Practice 2015.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and policy

Education, Health and Care Plan (EHCP)

12. Children with complex needs may require an Education, Health and Care Plan (EHCP). This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.

Annual Review

13. Councils must review EHCPs at least every 12 months. The procedure for reviewing and amending EHCP is set out in legislation and government guidance.
14. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. Where a council proposes to amend an EHCP, 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
16. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
17. 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.
18. 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 EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
19. Where the council does not agree the suggested changes, it may still issue the final EHCP.
20. 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.
21. 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 EHCP. The right of appeal is only engaged when the final amended plan is issued.

What happened

22. Miss X’s son (Y) has had an EHCP since April 2017, from the age of four.
23. Miss X said the Annual Review (AR) due in 2019 was delayed and the Council did not explain why. An AR was then conducted in October 2020 and during this, Miss X said it was agreed that Y’s EHCP should be amended. The paperwork showed there were new outcomes for Y with proposed changes needed for him to achieve them.
24. Miss X said she did not hear back from the Council for months and made attempts from February 2021 to contact it about the decision from the AR.
25. In March 2021, after speaking with Y’s school, Miss X discovered a decision letter had been sent to her account on the Council’s online “Hub” system dated November 2020, stating it had decided not to amend the Plan after the AR in October 2020.
26. Miss X said she had not been told the letter would be sent this way and did not receive any notification of this, so she had not checked her account. She thought the Hub was only used to send in evidence and her views. By the time she had seen the letter, the deadline to appeal the decision had passed.
27. Miss X contacted the Council and said she had submitted supporting documents and a July report from Y’s independent physiotherapist online for the AR in October 2020. She said this information must have been missed and not considered based on the decision not to amend the EHCP.
28. Emails between the Council and the school in March 2021 showed there was confusion about the decision not to amend the EHCP, as it was inconsistent with the recommendations of the school and documents that had been uploaded to the Hub to support the need for changes. The Council agreed to a further AR as a way forward to ensure all information was considered together to ensure Y’s EHCP was updated for his needs.
29. A second AR was conducted in April 2021; the paperwork noted Y’s Special Educational Needs (SEN) had changed significantly and recommended the EHCP should be amended, with proposed changes in outcomes and provision for him.
30. In July 2021, an internal Decision Making Group (DMG) Panel considered Miss X’s request to include Social, Emotional and Mental Health (SEMH) needs as an additional area in Y’s EHCP. It said more information was needed before it agreed. As a result, a letter dated 18 August 2021 was sent to Miss X which said the Council did not believe it was necessary to make changes to Y’s EHCP.
31. Emails showed Miss X queried about all the other changes proposed at the April 2021 AR and asked if the letter only referred to the SEMH aspect. The Council responded it had missed information from the AR recommendations, advising Miss X to discard the previous letter and it would send another.
32. A second letter dated 19 August 2021 was sent which said the Council had considered the request to make changes at the AR and confirmed it would be amending the EHCP to reflect Y’s current needs “in due course”.
33. On 18 November 2021, Miss X complained to the Council about the significant delay and failure to finalise Y’s EHCP after two AR’s. She also complained that she had not received a draft Plan, in addition to missing her right of appeal after the October 2020 AR as she was not notified of the formal decision letter.
34. In December 2021, a second DMG Panel considered Miss X’s request for increased physiotherapy support for Y. He saw a private physiotherapist regularly which Miss X paid for herself, but she wanted direct physiotherapy included as part of his SEN provision to meet his needs.
35. Between August and November 2021, emails showed the Council obtained the NHS physiotherapist’s view on recommendations made in Y’s independent physiotherapist’s report from July 2020. The DMG Panel in December requested an updated NHS physiotherapy report to get the most current information. Emails show this report was received by the Council in April 2022 after it was agreed with Miss X.
36. On 27 January 2022, the Council responded at Stage One stating:
1. it published the decision letter for the October 2020 AR on 23 November on the Hub system which would have notified Miss X – not upheld.
2. it sent a letter to Miss X advising amendments were to be made to the Plan after the April 2021 AR. It upheld her complaint about delay in progressing the review of Y’s EHCP.
37. On 31 January 2022, Miss X requested to escalate her complaint to Stage Two because her concerns had not been properly addressed. She was also dissatisfied with the delay of the Council’s response to her complaint.
38. On 23 March 2022, the Council’s apologised for the delay and responded to confirm it would not consider her complaint at Stage Two. It stated it had already covered her points and a further look would not change the outcome.
39. Since Miss X’s complaint to the Ombudsman, the Council has conducted another AR in July 2022, again recommending changes to Y’s EHCP.
40. Between July and August 2022, another DMG Panel was held and it refused Miss X’s request for private physiotherapy and hydrotherapy to be included in Y’s EHCP.
41. On 11 August 2022, the Council sent Miss X a first draft amended EHCP. Miss X informed me she is appealing against the DMG decision and the draft EHCP needs more work before she agrees to it.
42. In response to my enquiries, the Council provided paperwork for an EHCP AR dated 14 June 2018 (where no changes to the Plan were recommended) and one dated 14 May 2019. They were both submitted by Y’s school and Miss X was included on the list of those invited in 2019. This included a “Parent Views” form filled out by hand with Miss X’s signature dated 13 May 2019. Her view was the EHCP needed amending. The Council said a formal decision letter to not amend the Plan was sent to Miss X in August 2019 including a right to appeal.
43. I asked why the Council has still not finalised Y’s EHCP. It responded acknowledging the delay, saying “however, there has been a considerable amount of work involved in gathering evidence and advice with which to make a Plan that fully reflects Y’s needs and the provision required to meet them. It should be noted that [Miss X] has been issued with a right of appeal at every stage of Y’s EHCP journey from the first final which was issued in April 2017. At no point has [Miss X] exercised her right of appeal”.

Analysis

Delay of 2019 and 2020 Annual Review

44. The Council has provided sufficient evidence to show an AR meeting took place in May 2019, which is within 12 months of the previous one held in 2018. Miss X’s views were gathered before the meeting. On this basis, I am satisfied the AR was not delayed.
45. I have noted the next AR would have been due by May 2020 but did not take place until October 2020. Whilst late, I understand why it would have been delayed over the summer term as this was during the height of a Covid-19 lockdown. The AR was conducted a month after schools returned, so I consider this was done when reasonably practicable in the mitigating circumstances.

Missed Decision Letter after October 2020 AR

46. Miss X was registered on the Hub and had already used it to submit supporting documents and her views on Y’s EHCP for the October 2020 AR, but she said she was not informed that decision letters would be posted on it.
47. The Council’s website shows detailed guidance about the system and its uses, including:
• “once the Local Authority has made its decision an automated email will be generated and sent to you to advise that a decision has been made and you can log onto the Hub to view and download the decision letter”; and
• it had a feature of “automated email alerts and notifications of case updates”.
48. The Council said this is made available to all parents who sign up for an account.
49. Miss X said she did not receive any notification. The Council is unable to provide evidence of an update email sent to her about the decision letter as the system generates these automatically. It said the system had not shown any faults and there were no other reports of parents not receiving notifications.
50. I have considered Miss X’s initial complaint said she chased the Council for this letter in February 2021, four months after the AR, which was outside the time limits for an appeal to be lodged.
51. In response to my draft decision, Miss X said she had been introduced to the Hub through an invite link from Y’s physiotherapist. This took her directly to the Hub itself, not the Council’s website for it, and she had never been signposted to the guidance on it.
52. I recognise Miss X was frustrated as she lost the opportunity to appeal, and she may not have navigated directly to it. But I am satisfied guidance was available to her on how the Hub worked. There is no evidence to show fault by the Council for this missed communication.

No Changes to the EHCP after October 2020 AR

53. Although the Council had given Miss X the right to appeal the decision to not amend the EHCP after the October 2020 AR (which she was unaware of); after she disputed this in March 2021, the Council accepted it had missed information when reaching this decision.
54. This meant the decision was flawed. The Council failed to consider all available evidence, such as Miss X’s submission of Y’s independent physiotherapy report, which may have changed the outcome. This contributed to avoidable delay to the EHCP process. I note the Council took steps to resolve this by agreeing to conduct another review and work towards an updated EHCP for Y.

Failure to Finalise an EHCP since April 2021 AR

55. The second AR in April 2021 recommended changes to Y’s EHCP. It was poor administration by the Council to send the first letter to Miss X in August 2021 indicating the EHCP would not be amended. It acknowledged it had missed information again (separate to the first occasion in the October 2020 AR). This meant it had to send a further letter which caused avoidable uncertainty and confused matters for her.
56. The Council is further at fault for not complying with statutory timelines; decision letters must be issued within four weeks of an AR, but it did not send one until 17 weeks later, which is a substantial delay of 13 weeks.
57. There was also delay between three DMG Panels with an average of 6 months between each. The Council should have noted Miss X’s independent physiotherapy July 2020 report was outdated at the point of the DMG Panel in August 2021 and sought to have obtained one sooner, from either the NHS or Y’s private physiotherapist, to minimise further delays.
58. To date, a final EHCP for Y has still not been issued. After the April 2021 AR, the decision letter should have been sent by 19 May 2021, and then the final EHCP issued by 14 July 2021.
59. The first amended draft EHCP has only been sent to Miss X in August 2022, a year after the Council notified Miss X it would amend in August 2021 (this letter was already late at this point). During this time, Miss X has had no right of appeal.
60. The Council is at fault for this excessive delay. I acknowledge it said it had taken the time to gather evidence and advice to ensure Y’s EHCP fully reflects his needs, but waiting over a year for a final amended Plan is not acceptable. It could have sent Miss X a final Plan much sooner to allow her to exercise her right to appeal if she disagreed with the contents. She has been unable to appeal without a final Plan, leaving her in limbo and causing distress and uncertainty.
61. The Council was also at fault for asserting Miss X could have exercised her right to appeal at any stage since the final 2017 EHCP. I recognise she missed the opportunity to appeal in November 2020 which the Council is not at fault for. Since the April 2021 AR, the Council has given confused and contradictory messages about its intention to amend the EHCP. It has also failed to issue a final EHCP. Miss X has had no right of appeal throughout this period. This is fault and has denied her the opportunity to challenge the Council’s views on how Y’s needs will best be met.

Complaint Handling

62. Miss X initially complained to the Council in November 2021. The Council took two months to respond at Stage One, which is outside of its 20 working day timescale in their complaints policy. It did find some fault but offered no resolution.
63. The Council took nearly two months to respond to Miss X’s escalation request and conclude it would not do a Stage Two review. Again, this was further delay. It was also not a satisfactory response. Miss X had legitimate points to address and it is fault the Council failed to give her a fully considered response.
64. The Council has apologised to Miss X for the delays in the complaints process. It explained there had been a restructure with several staff changes which impacted on the outstanding workloads. It agreed it was not acceptable and assured her it would improve the management of outstanding and overdue complaints.
65. I acknowledge this, however this poor complaints handling is fault, and caused injustice to Miss X with additional frustration and her time and trouble in pursuing this complaint.

Injustice

66. The impact of the faults I have identified have caused considerable injustice. Y’s EHCP has not changed since 2017. Miss X has wanted an amended Plan to ensure the correct support is in place for him as his physical needs have changed significantly since he was aged four. He is now nearly nine years old. Miss X has had to wait substantially longer than necessary to receive a draft amended EHCP. She is yet to have a final Plan which will confirm what provision the Council considers should be put in place to meet Y’s needs.
67. I am unable to say what should or should not be included in the Plan and if Miss X disagrees, she can appeal once she receives a final EHCP.
68. I have compared Y’s draft EHCP from August 2022 from the final EHCP in April 2017. The Council has included extensive additions of provision in the draft. Based on this, it is reasonable to conclude these delays have caused injustice to Y as he has lost out on extra support the Council has agreed he needs since the April 2021 AR. That additional provision is still not in place.
69. In the published Guidance on Remedies by the Ombudsman, a symbolic payment can be recommended to acknowledge the impact of missed provision for Y. In calculating this financial remedy, I have based this on the delay from the point at which the process should have been completed after the April 2021 AR (when the Council formally confirmed it would amend the EHCP); this is July 2021.

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Agreed action

70. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
71. Within one month of the final decision:
• Provide Miss X with an apology for the significant delays she experienced in the EHCP and complaints process;
• Reimburse Miss X for the independent physiotherapy report she obtained in July 2020 as it had not been taken into account at the time;
• Issue a final version of Y’s amended EHCP to Miss X;
• Pay Miss X £300 for her time and trouble in pursuing her complaint; and
• Pay Miss X £2200 in recognition of missed support and provision for Y caused by the Council’s delay from July 2021 and September 2022. This should be used for Y’s educational benefit. This is calculated at 11 school months (accounting for school holidays) at £200 per month.
72. Within three months of the final decision:
• Review its processes to ensure it issues decision letters after annual reviews and final EHC plans within statutory timescales and minimises delays; providing evidence this guidance has been sent to appropriate staff members.

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Final decision

73. I found the Council at fault which caused an injustice to Miss X and Y. The Council has agreed to take action to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman