Summary: Mrs Y complained about the way the Council dealt with her son Z’s Education, Health and Care plan, and his special educational needs provision. We have found fault by the Council in the delay in completing the review of Z’s plan and responding to requests for additional provision, and its communication failures, causing injustice. The Council has agreed to remedy this by apologising to Mrs Y, making a payment to reflect the upset and uncertainty caused and service improvements.

The complaint

1. The complainant, who I am calling Mrs Y, complains about the way the Council dealt with her son Z’s Education Health and Care (EHC) plan and his special educational needs provision. She says the Council failed to:
1. follow up after the annual review meeting for Z’s EHC plan on 10 June 2021 and did not issue a final plan until September 2022;
2. respond to their request for additional farm school sessions for Z; and
3. respond to their contact and communicate with them properly.
2. Mrs Y says these failures and delays have affected Z’s ability to learn to his full potential and caused her significant worry and uncertainty and distress. She wants the Council to:

• confirm whether Z can attend a third farm school session and take responsibility for the delay in his being able to do so and the opportunities lost for his learning, social, communication and interaction skills;
• take responsibility for the delay in issuing the final EHC plan following the review meeting in June 2021 and the impact of this on Z’s learning;
• reply to their queries about how they should comment on the draft plan issued in May/June 2022; and
• arrange the annual review of the EHC plan for 2022/2023

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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.
4. 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 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

7. I spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint.
8. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care (EHC) Plans

9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
10. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections.
11. We cannot direct changes to the sections about education or name a different school. Only the SEND tribunal can do this.
12. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Inability to attend school because of health needs

13. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

Arrangements for reviewing an EHC Plan

15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. This says a council must review an EHC plan at least every 12 months.
16. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
17. Where a council proposes to amend an EHC plan, 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
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 EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
19. 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 EHC plan. The right of appeal is only engaged when the final amended plan is issued.

The Council’s complaints process

20. The Council’s process in January 2022 for complaints about education had two stages. This said:

• it would provide a stage 1 response within 20 days of the complaint being made;
• If the customer was not satisfied with the stage 1 response, they could ask the Council to escalate the complaint to stage 2 of the process;
• it would then arrange for an independent investigator to investigate the complaint and issue a report within 50 days; and
• if a customer remained unhappy after the stage 2 response, they could bring their complaint to us.

21. In June 2022, the Council changed this to a one stage complaint process, which said:

• it would provide its complaint response within 20 days; and
• if the customer was not satisfied with this response, they could refer their complaint to us at that stage.

What happened

22. I have set out a summary of the key events below. It is not meant to show everything that happened.

Background

23. Z has special educational needs and has had an EHC Plan for a number of years. The Council accepted he was unable to attend a school and arranged educational provision for him otherwise than at school.

June 2021 – annual review meeting

24. The Council had a meeting with Mrs Y as part of the annual review of Z’s EHC plan issued in June 2020. This included tutoring provision for Z of 15 hours a week. Mrs Y asked questions about a number of issues and requested that:

• Z’s existing tutoring provision be continued; and
• Z be provided with one session a week at a farm school.

25. Mrs Y heard nothing further from the Council about the completion of the annual review process following this meeting. It did not tell her whether it had decided to maintain, amend or cease Z’s EHC Plan.

January 2022 – Mrs Y’s complaint to the Council

26. Mrs Y complained to the Council about its delay in completing the June 2021 review process and its failure to issue Z’s new EHC plan.

Mrs Y’s request for additional sessions at the farm school

27. Although the Council had not issued a new plan, it had put in place provision for Z to attend a weekly session at a farm school. Z was later unable to continue engaging with the tutoring provision and I understand Mrs Y asked the Council to provide Z with a second weekly farm school session.
28. Mrs Y complained about the Council’s delay in responding to this request.
29. In February 2022 the Council agreed this additional provision and arranged for Z to start a second session after the February half term.

May 2022 – the Council’s complaint response

30. In its stage 1 complaint response, the Council said it:

• apologised for the delay in responding to Mrs Y’s complaint. It accepted there were delays in its communication and this needed to improve. It was looking at ways to increase capacity so it could do this;
• accepted there was an unacceptable delay in issuing Z’s new EHC Plan. It was working to address this by increasing staff numbers. It hoped to share the proposed plan with Mrs Y by the end of May 2022 and apologised for the distress and anxiety the delay had caused; and
• accepted there had been poor communication about the request for additional farm school sessions. It said Mrs Y’s recent request for a third session was being considered and would be decided by the end of May 2022.

31. It told Mrs Y she could ask for her complaint to be escalated to stage 2 of its process if she was not satisfied with this stage 1 response.

May to October 2022

32. The Council issued Z’s draft amended EHC plan on 25 May.
33. Mrs Y told the Council it was difficult to comment on the amended plan, as it was based on the review meeting nearly a year ago, and much of it was now outdated and no longer relevant for Z. She asked how she should do this. The caseworker advised she could add her comments via the hub or by email.
34. Mrs Y told the Council in June she was not happy with its stage 1 response and also complained it had not responded to her question about comments on the amended plan.
35. In its initial reply the Council said:

• It had explained how she could make her comments on the draft plan;
• The delay in making a decision about a third weekly farm school session was due to staff absences. It hoped to tell her its decision by mid-July; and
• It would contact her about the escalation of her complaint to stage 2 of its process.

36. Mrs Y asked the Council on 23 and 31 August for an update on her complaint. She said it was now the end of the summer holidays, they still didn’t have answers and Z’s plan had not been updated since June 2020.
37. The Council issued Z’s final amended EHC Plan on 27 September 2022. This included provision for one day a week at forest school (although I understand Z had been attending farm school two days a week from February 2022).
38. In October, the Council told Mrs Y it had not yet been able to allocate her complaint to an independent investigator to complete the stage 2 process and apologised for the delay.

November 2022 - Mrs Y’s complaint to us

39. Mrs Y referred her complaint to us.
40. The Council told us in December its stage 1 response was the end of its complaints process. It then told us it had not been able to allocate her complaint for a stage 2 investigation because of a shortage of independent investigators.

Current position

41. An annual review meeting of Z’s plan was held on 21 February 2023. The Council has told us it confirmed its decision to maintain Z’s plan on 20 March. A request for an additional session at the farm school has been presented to its funding panel.

My analysis – was there fault by the Council causing injustice?

Complaint (a) Delay completing the review of Z’s EHC plan

42. The Council should have told Mrs Y, within four weeks of the review meeting on 10 June 2021, whether it intended to maintain, amend or cease Z’s plan. It did not do this.
43. It did not send Mrs Y the draft amended plan until 25 May 2022, nearly a year after the review meeting and well outside the statutory timescales. It failed to acknowledge Mrs Y’s concerns about the out-dated information in the draft plan.
44. The Council should then have issued the final plan by 21 July 2022 (within eight weeks of 25 May). It did not do this until 27 September, again well outside the statutory timescales.
45. It should have reviewed Z’s plan within a year of the June 2021 review. It did not do this until February 2023.
46. All of the above failures were fault by the Council. The impact of this was a very significant delay in updating Z’s plan to reflect his current needs and provision. By the time the amended plan was issued, the information was out-of-date making it difficult for Mrs Y to comment effectively. Her opportunity to appeal to the SEND tribunal against any part of the amended plan was delayed until the issue of the final plan in September 2022.
47. And the delay meant the annual review which should have taken place in June 2022 was pushed back. Mrs Y lost the opportunity to discuss Z’s current needs and provision as part of the review process until the delayed review meeting finally took place in February 2023.
48. I consider these delays have caused Mrs Y uncertainty, upset and frustration.

Complaint (b) Response to requests for additional farm school sessions

49. The Council has accepted there were delays in its response to Mrs Y’s requests in 2021 and 2022 for additional farm sessions for Z. I note, following Mrs Y’s complaint in January 2022, it promptly arranged a second session for Z.
50. But it has still not made a decision about Mrs Y’s request, made before May 2022, for a third session. This is a delay of more than a year.
51. I consider these delays and failures to respond to Mrs Y’s requests were fault, which have caused her upset, uncertainty and frustration.

Complaint (c) Communication failures

52. The Council accepted there had been delays in its communication with Mrs Y.
53. I also consider there were failures in the way the Council conducted its complaints process. It should have issued its stage 1 complaint response by mid-February 2022 (within four weeks of Mrs Y’s complaint of 14 January 2022). It did not do so until 17 May, a delay of some three months.
54. It should then have completed its stage 2 investigation within 50 days of 21 June (Mrs Y’s request for escalation of her complaint). It did not do this.
55. It provided conflicting information about whether it had completed its complaints process. This delayed Mrs Y’s right to bring her complaint to us.
56. I consider all the above failures were fault by the Council, causing Mrs Y upset, uncertainty and frustration.

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Agreed action

57. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y for its further delays and communication failures, after May 2022, in responding to her complaint and request for additional sessions, and its further delay in completing the reviews of Z’s EHC plan. The apology should reflect the principles about making an effective apology set out here Guidance on remedies - Local Government and Social Care Ombudsman in in our published Guidance on Remedies;
2. pay Mrs Y £800, as a symbolic amount based on the Ombudsman’s published Guidance on Remedies to reflect the:

• uncertainty, upset and frustration, and also the missed opportunity to appeal, and discuss Z’s current needs and provision caused by the delays in the review of Z’s plan;
• upset, uncertainty and frustration caused by the delay in responding to her requests for additional sessions; and
• upset uncertainty and frustration caused by its communication failures and delays in the complaint process.

58. Within three months from the date of our final decision, the Council has agreed to:

• review its procedures for completing reviews of EHC plans within the required timescales; and
• provide us with details of the steps it has taken to increase the capacity of its SEN team to complete EHC plan reviews in a timely way and respond promptly to requests and communication (as it said it was doing in its reply to Mrs Y in May 2022).

59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. I have found fault by the Council as set out above, causing injustice. I have completed my investigation on the basis the Council will complete the above actions as an appropriate way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman