Summary: Miss X complained about the Council’s delay in providing a draft of her son’s Education, Health and Care Plan following annual review. We found the Council took too long to send the paperwork to the family. Miss X and her son suffered avoidable frustration and distress due to the wait. To remedy the injustice caused by this fault, the Council has agreed to apologise and make a payment to Miss X to acknowledge the distress caused.

The complaint

1. Miss X complains the Council has not provided a copy of her son, Mr Y’s, draft Education, Health and Care Plan (EHCP) within statutory timescales. She further complains the Council promised to send the delayed draft EHCP by mid-November and that it did not arrive until mid-December.
2. Miss X says the Council’s actions have caused stress and frustration which takes her focus away from supporting Mr Y and that without the draft document she is unable to request amendments or changes.

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What I have and have not investigated

3. I have not investigated any issues relating to the appropriateness of the content of the draft amended EHCP when it did arrive as this was not part of the original complaint to us. Miss X may have appeal rights to the SEND Tribunal when the final EHCP is issued, and we would expect her appeal if is she is unhappy with the provision set out.

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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. 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)
6. 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

7. I have considered all the information Miss X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Miss X, Mr Y and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

9. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. There is a right of appeal to the Special Educational Needs and Disabilities (SEND) Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.
11. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance.
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 EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. 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)
14. 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)
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 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)
16. 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

17. Miss X has a son, Mr Y, who has an EHCP which he has had for some time.
18. The annual review of Mr Y’s EHCP was carried out at the beginning of May 2022.
19. During communications between the Council and Miss X early in August 2022, it said that Mr Y’s draft amended EHCP would be sent out that same week.
20. Miss X complained to the Council early in October 2022 that she had still not received a copy of Mr Y’s draft amended EHCP which should have arrived at the beginning of June 2022.
21. The Council sent a stage one complaint response at the beginning of November 2022. In this letter, it:
• apologised Miss X had needed to complain;
• advised it was working through a significant backlog;
• said it was working to recruit staff to be able to respond to EHCP reviews within statutory timescales; and
• confirmed Mr Y’s EHCP would be amended and sent no later than mid-November 2022.
22. Miss X complained again to the Council the following week. It declined to escalate her complaint to stage two of its process as it said it could achieve no more. It directed Miss X to us.
23. When the draft amended EHCP did not arrive by mid-November 2022, Miss X complained to the Ombudsman.
24. The Council sent the document to Miss X in mid-December 2022.

Analysis

EHCP

25. The Council should have notified Miss X within four weeks of the annual review to confirm whether it was planning to amend Mr Y’s EHCP. It should then have started the amendment process ‘without delay’, as per the Code.
26. Despite communications early in August 2022 to say that the plan would arrive that week, Miss X still had cause to complain at the beginning of October 2022, as it had not arrived.
27. As part of its later complaint response, the Council again gave a date by which the plan would be sent. This date again passed without any copy being sent to Miss X and with no communication about further delay.
28. In its response to my enquiries, the Council has confirmed this delay was due to staff sickness and lack of capacity, but that it is disappointing this was not shared with Miss X. It also said that it is in the process of organising better recording and supervision systems so that deadlines are easily identifiable even during staff absences.
29. Miss X has no appeal rights until the final amended plan is issued. Therefore, she was not able to comment on the draft plan, receive a final plan, ask for any amendments or exercise her right to appeal if she was unhappy with the content. This delay and lack of communication is fault. It would have caused avoidable distress and anxiety to Miss X and caused understandable concern about the effect on Mr Y’s education. Miss X had at this point lost the opportunity to move to the next stage of the statutory process.
30. When I wrote my enquiries to the Council, it had by this time sent the draft amended EHCP. There had been a significant delay in getting the document issued to Miss X. I suggested the Council may wish to remedy the matter by issuing an apology and pay Miss X £500 for the distress her and Mr Y have suffered due to the injustice caused. In its response to me, the Council agreed to my suggested remedy.

The Council’s autumn 2022 SEND review action plan

31. The Council commissioned an independent review of its SEND services in 2021. It issues progress updates regularly throughout the year. Its last update in Autumn 2022 confirmed that it was still not completing enough annual reviews within statutory timescales.
32. As part of my enquiries to the Council, I asked it what progress it was making against this, when newly recruited staff would begin work and when families would start to receive ‘timely responses’ outlined in the original review. The Council has reassured me with details of how it is making progress towards its targets.

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Agreed action

33. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks from the date of my final decision:
• apologise to Miss X and Mr Y; and
• pay Miss X £500 for the distress and delay the family has suffered.
34. This payment is in line with the Ombudsman’s Guidance on Remedies.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman