Summary: The Council was at fault for delays following a review of an Education Health and Care Plan, and for incorrectly telling Mr X he could appeal to the SEND Tribunal before the Plan was finalised. This caused Mr X and his son avoidable distress and uncertainty about education provision. The Council was also at fault for not organising transport in time for Mr X’s son to get to college, causing inconvenience to Mr X. The Council has apologised for the delays and offered a financial remedy to Mr X. It has also agreed to offer additional financial remedies, and to review one of its procedures, to properly recognise the injustice suffered by Mr X and his son.

The complaint

1. Mr X complains the Council did not follow statutory time limits to amend or finalise his son’s Education Health and Care plan (EHCP) after a review in March 2021.
2. Mr X also says the Council delayed in agreeing the new education placement which contributed to a loss of education for his son, who I will refer to as Y, for six weeks.
3. Mr X says the delays in amending the EHCP and agreeing the new placement have caused him, and Y, avoidable distress, and uncertainty about future education provision. He also says the delays in finalising the EHCP prevented him appealing the EHCP, causing further uncertainty.
4. Finally, Mr X says the Council failed to organise transport in time for Y to attend his new placement, which caused Mr X inconvenience and unnecessary expense.

Back to top

The Ombudsman’s role and powers

5. 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)
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 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.

Back to top

How I considered this complaint

8. I wrote to Mr X and considered the information he provided.
9. I considered the Council’s comments and the documents it provided.
10. I considered the code of practice which contains guidance for organisations supporting young people with special educational needs or disabilities (SEND).
11. I considered the Ombudsman’s guidance on remedies.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What should have happened

13. The law says a person can appeal to the SEND Tribunal when a council will not amend an EHC plan, or about the content of an EHC plan. An appeal can only be made once the council has made a decision.
14. The SEND code says within four weeks of a review meeting, a council must tell the child’s parent of its decision to maintain, amend or discontinue the EHC plan. It also says if a council decides to amend the plan, it should start this process without delay.
15. The Council’s transport policy, in place at the time, said for students over 19 years of age and starting a new course, there would be no contribution from parents to the cost of transport provided by the Council. The Council provided information saying, in some situations, it will pay parents 35p per mile to drive their child to their educational placement.

What happened

Amending and finalising the EHCP

16. In March 2021, Y’s college carried out an EHCP review and sent this to the Council. The review highlighted that a move to another location would better suit Y’s development. Mr X said this was his preference in the review.
17. In June, the Council wrote to Mr X saying it intended to maintain Y’s EHCP to provide special educational provision. At the same time, it told Mr X it was aware of his preference for a change of placement and said once it had considered this, it would write to him to let him know if it intended to amend Y’s EHCP.
18. The same day, the Council sent a referral to the prospective new placement to check suitability for admission in September. In July, after it assessed Y, the placement told the Council it could accommodate Y.
19. In September, the Council offered Y a day placement (rather than a residential one), and Y started his placement in October.
20. Mr X says Y stopped attending his existing college at the start of the new academic year until his new placement started, because he was no longer benefiting from this educational provision.
21. In January 2022, the Council wrote to Mr X and said they believed Y’s EHCP needed amending and they sent Mr X a copy of the draft amended EHCP for consideration.
22. In that letter the Council gave Mr X the chance to comment within a 15-day period. In the same letter, it told Mr X he had a right of appeal to the SEND Tribunal and had two months in which to do this.
23. Mr X contacted the Council within 15 days, but having got no response, he then made an appeal to the SEND Tribunal (within the two-month time period to which the Council referred). This appeal was rejected because the SEND Tribunal can only hear appeals against finalised plans and not draft plans.
24. The Council finalised the 2021 EHCP in August 2022. Mr X intends to appeal that EHCP.

Transport

25. Y started his new placement in October 2021. The Council was aware of the placement and Mr X’s transport request before then. The Council agreed to arrange transport but following an administrative error, this was not put in place until January 2022. During this time Mr X made his own travel arrangements for Y.

My findings

Amending and finalising the EHCP

26. The SEND code says a council must decide whether to maintain, amend or discontinue an EHCP within four weeks of a review meeting. The Council did not consider the review correspondence until 12 weeks after it received it, at which point it told Mr X it would maintain the plan and would consider his request for an amendment. This was fault and the Council has acknowledged this fault, and apologised to Mr X.
27. The SEND code also says the Council should begin the process of amendment without delay. It began a consultation process immediately, but the consultation and consideration by the Council was not conducted in a timely way, resulting in a six-week delay to Y starting his new placement.
28. This was fault, and the Council has apologised for the delay in Y starting his placement and offered to pay Mr X £150 for missed education. It also, at Mr X’s request, agreed to apologise directly to Y. It did not do so. This is also fault.
29. The only amendment to the EHCP requested or considered was the change of education placement. Having agreed to Y’s placement in September, there was nothing which would have prevented the Council issuing the amendment notice within a short period. It failed to do so, which was fault. The Council has apologised to Mr X for the delays in issuing the amendment notice.
30. The Council was then responsible for further delays in finalising Y’s EHCP after issuing the amendment notice. This meant Mr X’s right to appeal the final EHCP was also delayed. This was also fault.
31. Mr X received two letters indicating he was able to appeal the draft EHCP to the SEND Tribunal: one following the 2021 review and another after the 2022 review. This was incorrect, which was also fault by the Council.

Transport

32. The Council agreed to provide transport for Y, and it was aware of Mr X’s request in time for the transport to be arranged for Y starting at college. Before it made any arrangements, it offered to pay Mr X a mileage allowance, but Mr X neither accepted nor declined this at the time.
33. The Council acknowledged there was a delay in organising the transport, meaning that, even though it had agreed to provide transport, Mr X still had to make his own arrangements from October until the matter was resolved in January. This was fault and the Council has apologised and offered to reimburse Mr X for any expense he incurred.
34. The Council also acknowledged the inconvenience the delays to the EHCP and organising transport had caused Mr X and offered to pay him £100 in recognition of his time and trouble.

Back to top

Agreed action

35. Within six weeks of this decision, the Council has agreed to:
• Apologise to Y for the delay in arranging his new placement.
• Make a payment of £600 to Mr X, to be used for Y’s educational purposes, in recognition of the six weeks Y was left without educational provision.
• Make a payment of £100 to Mr X to recognise the uncertainty Y experienced about his educational placement.
• Make a payment of £250 to Mr X to recognise the time and trouble he went to in complaining about the Council’s delays, as well as the time he spent preparing for a SEND Tribunal when, contrary to the Council’s advice, he had no right of appeal.
• Contact Mr X and come to an agreement about reimbursement of his travel expenses between October 2021 and January 2022.
• Review the standard letter it sends to accompany draft EHCPs and ensure that the information in the letter is compliant with the SEND code of practice, particularly with regard to appeal rights.

Back to top

Final decision

36. The Council was at fault for delays in reviewing, amending, and finalising Y’s 2021 EHCP, as well as delays in organising transport. The Council was also at fault in the process it used to notify Mr X of his appeal rights.

Back to top

Investigator's decision on behalf of the Ombudsman