Summary: The Council significantly delayed amending K’s Education, Health and Care (EHC) plan. As a result, he did not receive all the special educational provision he needed for one year. The Council also failed to respond to correspondence and delayed responding to complaints. The Council has agreed to make a payment to K for the loss of provision, and to his mother, Mrs X, for the distress she experienced as a result of the Council’s failings in this case.

The complaint

1. Ms Y is complaining on behalf of Mrs X and her son, K. She complains that the Council failed to amend K’s EHC plan following an annual review in January 2022. As a result, K has not received the special educational provision he needs.
2. Ms Y also complains that the Council failed to respond to emails and calls and delayed responding to her complaints. This has caused frustration and avoidable 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. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
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 have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with Ms Y;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
9. 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.
10. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
11. 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)
12. 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
13. Councils must tell the parent or young person what the proposed changes are within four weeks of the annual review meeting. The final EHC plan must be issued as soon as practicable and within a maximum of eight weeks. Therefore, the Council must send the parent or young person the final amended EHC plan within a maximum of 12 weeks of the annual review meeting. (R (L, M AND P) v Devon City Council [2022] EWHC 493)
14. 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.

Background and summary of key events

15. K is 11 years old and has been diagnosed with autism spectrum disorder and general anxiety disorder. He has an EHC plan which outlines his special educational needs. K attends a moderate learning difficulties specialist unit within a mainstream primary school, which I will refer to as school A.
16. An Educational Psychologist assessed K in September 2021. The report showed that K had additional needs in cognition and learning and in social, emotional and mental health development. The Educational Psychologist said that these should be discussed at K’s upcoming annual review and his EHC plan should be updated accordingly.
17. The annual review of K’s EHC plan was held in January 2022 and determined that changes needed to be made to the plan. The report was sent to the Council on 2 March, along with a copy of a letter from Mr and Mrs X asking for a change of school.
18. The Council wrote to Mr and Mrs X on 15 March to confirm that an amended EHC plan would be issued.
19. Ms Y then wrote to the Council to ask about the process and timescales for amending K’s EHC plan. She said that Mrs X did not consider K’s school could meet his needs and she wanted him to move to a different school in September 2022.
20. The Council confirmed that it would be amending K’s EHC plan but said that it currently had a very high volume of work. It explained how Mrs X could look for an alternative school.
21. In May and June Mrs X and Ms Y both contacted the Council about the EHC plan and moving K to another school from September 2022 but they did not receive a response. Mrs X told the Council that she wanted K to move to school B, a specialist setting.
22. Ms Y then made a formal complaint to the Council about its delay issuing a final EHC plan. She said that K’s school was unable to meet his needs. Ms Y complained that the Council was not responding to their calls or emails and they had not heard anything following a referral which had been made to the inclusion service. The service provides support when children are unable to access education.
23. The Council responded to Ms Y’s complaint on 14 July. It apologised for the lack of communication and explained the pressures the service was facing. It said that it was aware a change of placement had been requested and this would be progressed.
24. Dissatisfied with the Council’s response, Ms Y escalated her complaint on 21 July. She received a response on 18 October. The Council acknowledged the frustration caused by its inability to meet the required timescales for amending K’s EHC plan. It also acknowledged that it had not picked up on the change of placement request following the annual review in January 2022 and it apologised for this oversight. The Council told Ms Y that following a review of K’s EHC plan on 11 October, it would be updating the plan and issuing a draft as soon as possible. It said that it would then consult three mainstream schools as well as Mrs X’s preferred school, school B. It said that if the mainstream schools were unable to meet K’s needs, it would seek approval for school B.
25. The Council also told Ms Y that the Inclusion Service only supported children who were not attending school and as K was attending school, there was no need for a referral to be made.
26. The Council consulted several schools including K’s current school, school A and Mrs X’s preferred school, school B. School A said that it could no longer meet K’s needs and school B said it was full and had no spaces available.
27. The Council consulted another specialist setting which said that it was able to meet K’s needs. This school was named in K’s final EHC plan, which was issued in February 2023. Mrs X does not consider it is suitable and she intends to appeal. Ms Y believes that K would have got a place at school B if there had been no delays and the Council had consulted it sooner.

Analysis

28. Within four weeks of the annual review held on 31 January 2022, the Council should have notified Mrs X of its decision to amend the EHC plan and provided details of the proposed amendments. The Council did not notify Mrs X that it would be amending the EHC plan until 15 March 2022 and it did not provide details of the proposed amendments until 20 October 2022. This delay was fault.
29. The Council should have issued a final EHC plan within 12 weeks of the annual review. It did not do so until over a year after the review, on 17 February 2023. This delay was fault.
30. If there had been no delays in this case, the Council would have sent a draft EHC plan to Mrs X by the end of February 2022 and told Mrs X that she had 15 days to give her views and make any representations on the content of the plan and to express any preference she had for placement. It is likely that Mrs X would have told the Council by mid-March that her preference was for K to move to school B.
31. When school B was consulted in October 2022, it had no places available for an immediate start, or for a start in September 2023 when K will be of secondary school age. The Council says school B consistently has very limited spaces. I am unable to conclude that school B would have offered a place to K if it had been consulted in March 2022 for a year six place commencing in September 2022, but it appears unlikely.
32. When K’s current school, school A, was consulted in October 2022, it said that it could no longer meet K’s needs and he needed a more specialist setting. It said that in order for him to remain at the school, he would need full time one to one support.
33. If there had been no fault in this case, a final amended EHC plan would have been issued by 25 April 2022. K would then have received additional provision and it is likely that he would have either been offered a place at school B, commencing in September 2022, or Mrs X would have appealed the school named in the plan. If there had been no fault by the Council, I consider K would have received additional provision a year earlier and he would have moved to a school which could meet his needs in September 2022.
34. The Council also delayed dealing with Ms Y’s complaints and failed to respond to correspondence. It took 15 working days to respond to Ms Y’s stage one complaint and 63 working days to respond to her stage two complaint.
35. Earlier this year we criticised the Council for not including a timescale in its complaints procedure for responding to stage two complaints. The Council agreed to change its complaints procedure, which now states that stage two responses will be provided within 20 working days. The Council accepts that it took too long to respond to Ms Y’s complaint. This was fault.
36. The Council’s delays amending K’s EHC plan will have caused Mrs X significant frustration and distress, which will have been compounded by the Council’s failure to promptly respond to Mrs X and Ms Y’s correspondence and complaints.

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Agreed action

37. The Council will take the following actions within four weeks of my final decision:
• Make a payment of £1500 to K. This is to recognise that K did not receive all the provision he needed for one year. It should be spent on something which will benefit K’s education.
• Make a symbolic payment of £300 to Mrs X. This is to recognise the distress and frustration Mrs X experienced as a result of its failings in this case.
38. The Council has an approved Accelerated Progress Plan that sets out actions it is taking to address matters of timeliness, both for EHC needs assessments and annual reviews. I have therefore decided it is not necessary to make any service improvement recommendations.
39. The Council should provide evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation and uphold Mrs X’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman