Summary: Mrs X complains about delay by the Council in completing her son’s Education, Health and Care Plan after the annual review, and delay in releasing payment to her for alternative education provision. We find fault with the Council for the delay, and have recommended a symbolic payment for the frustration and distress caused to Mrs X.

The complaint

1. Mrs X complains about the Council’s delay in completing her son’s Education, Health and Care Plan (EHCP) after the Annual Review (AR) in June 2022.
2. Her son H entered Year 9 with no Education Other Than At School (EOTAS) funding and no EHCP in place.
3. Mrs X would like the funding issued immediately with the EHCP.

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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. 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.
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)

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How I considered this complaint

7. I spoke with Mrs X and considered the information she provided.
8. I made enquiries with the Council and considered the information it provided.
9. Mrs 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

Legal and administrative background

Education, health and care plan

10. A child with special educational needs may have an Education, Health, and Care plan (EHCP), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.

Annual reviews

11. The procedure for reviewing and amending an EHCP is set out in legislation and government guidance. Councils must hold a review meeting once yearly and within four weeks of the meeting, must notify the child’s parent of its decision to maintain, amend or cease to maintain the EHCP. This is the annual review. Each annual review must take place within 12 months of the last.
12. 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. The Special Educational Needs and Disability Code of Practice states if a council decides to amend the plan, it should start the process of amendment “without delay”.
13. 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.
14. Caselaw from March 2022 clarified the timetable for annual reviews. The High Court decided that if a council intends to amend a child’s EHCP, it must send the draft EHCP (amendment notice) along with the notification it intends to amend the existing plan. This must happen within four weeks of the annual review meeting. Overall, it should take no more than twelve weeks from the annual review meeting to issuing the amended EHCP.
15. 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.

Education other than at school (ETOAS)

16. Councils have a duty to provide educational provision which meets the needs of children and young people who, for whatever reason, are unable to attend a mainstream or special school.
17. For children and young people with an EHCP, the EOTAS provision must be included in section F of an EHCP which should detail the package of education being provided.

What happened

18. Mrs X’s son H is Autistic, Dyslexic and has Attention Deficit Hyperactivity Disorder (ADHD). He has an EHCP in place which provides for Education other than at school (EOTAS).
19. The annual review (AR) was held in May 2022. The EHCP should have been issued on 29 August.
20. Mrs X chased the Council on the 22 July, 13 August, 31 August and 5 September for the notice to amend or EHCP.
21. Mrs X made a complaint to the Council on 13 September.
22. The Council responded in October admitting its failure to keep to the statutory timescales and apologised for them.
23. The EHCP says the Council should give funding to Mrs X for H’s EOTAS provision at the beginning of every term.
24. On 17 November Mrs X brought a stage two complaint. She had a meeting with the AR manager on 18 October and was told the payment for H’s EOTAS would be made. She was also told the notice to amend the EHCP would be given by 4 November. She still had not received either.
25. The Council’s stage two response repeated the apology at stage one.
26. On 28 November, Mrs X wrote to the Council saying H still had no funding, no amended EHCP and no notice to amend. She had also emailed the Council to consult with a preferred school but had not heard anything back.
27. The stage three response from the Council in December explained the funding was delayed “due to miscommunication between the SEND team and the finance department”. It also:
• Apologised the error caused delay, especially as it could have affected H’s education;
• Acknowledged the stress this would have caused Mrs X;
• Recognised while Mrs X could fund H’s alternative education provision so there were no gaps in his education, for many families this would not have been possible;
• Said “as there were delays previously, the team will review its processes when EHCP and provision are unchanged to avoid interruptions and ensure the approach is understood”;
• Apologised for the distress caused by not meeting the statutory timescales following the AR;
• Confirmed it sent paperwork to the preferred school and they are awaiting the response;
• Said “since the last complaint the Council now have a permanent and more stable team working in the SEND service. The team are working on practical activities to be implemented over the coming months. It will take time for the improvements to take full effect but the Council are prioritising and will initially focus on better communication, including developing a SEND handbook that sets out the process it will follow and a range of service standards”.
28. The Council released the funding to Mrs X in December.
29. Mrs X brought her complaint to the Ombudsman in March 2023 as she still had not received the notice to amend or the completed EHCP, and the next AR is due in June.

Analysis

30. The Council admits fault in not sending the notice to amend or completing the EHCP within the statutory timescales. This is fault causing frustration and uncertainty to Mrs X, and also delaying her appeal rights.
31. There was also delay in releasing funding for H’s EOTAS provision. Payment should have been made by September but was not sent to Mrs X until December, a delay of three months. This is fault, causing frustration and distress to Mrs X, and avoidable inconvenience as she paid for the provision herself.
32. The Council say the delay in releasing the funding was down to a miscommunication between the SEND team and finance. This is fault.
33. I welcome the Council’s recognition that it failed to take proper account of its duties, and that it is acting to ensure this does not reoccur.

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Agreed action

34. When recommending a remedy we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:
• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration.
35. Within one month of the Ombudsman’s final decision, the Council:
1. Pays Mrs X £150 in recognition of the distress and uncertainty caused by the delay in completing the EHCP in line with statutory timescales;
2. Pays Mrs X a further £150 for the delay in releasing the EOTAS funding; and
3. Sends Mrs X the completed EHCP (If not done already).
36. Within three months of the final decision the Council should:
1. Provide us with its plan to improve compliance with the EHCP timescales; and
2. Advise the outcome of the review of its processes regarding EOTAS payment when the EHCP and provision are unchanged.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I find fault with the Council for delay in issuing H’s EHCP after the Annual Review, and delay in releasing funding for his EOTAS provision. I have recommended a symbolic payment for the distress and frustration caused to Mrs X.

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Investigator's decision on behalf of the Ombudsman