Summary: Mr F complains that the Council delayed issuing his son’s amended EHC plan after the 2022 annual review. We found there was fault which has caused uncertainty to Mr F and his son. The Council will make a symbolic payment to them to remedy this distress.

The complaint

1. Mr F complains that the Council delayed issuing his son, J’s amended EHC plan after the 2022 annual review.
2. As a result, Mr F says his son’s mental health has rapidly deteriorated resulting in a referral to CAMHS and disengagement from school and there has been a devastating impact on the whole family. Mr F says delay in issuing the plan also meant J missed out on a place in his preferred school.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), 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.

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How I considered this complaint

8. I spoke to Mr F about his complaint and considered the information he sent, the Council’s response to my enquiries and the Special Educational Needs and Disability Code of Practice (“the Code”).
9. Mr F 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

Special educational needs

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
11. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
12. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Annual reviews

13. The Code says councils must review a child's EHC plan every 12 months. These annual reviews consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan.
14. Within four weeks of the review, councils must decide whether they propose to amend the plan and notify the young person of this decision. If they are amending, they must do so without delay and issue an amendment notice. Although the Code does not give any deadline for the issuing of an amendment notice, a 2022 high court decision says any draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))
15. The Code says an EHC plan must be reviewed and amended in sufficient time prior to a child moving between key phases of education. The review and any amendments to the plan must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. (SEND CoP para 9.179)

Commenting on draft EHC plans and consulting with schools

16. The local authority must send the draft EHC plan, which must not name a school, to the child’s parent and give them at least 15 calendar days to give views and make representations on the content.
17. The council then consults with school(s), allowing 15 days to respond. The local authority must consult the governing body, principal or proprietor of the school and consider their comments very carefully before deciding whether to name it in the child or young person’s EHC plan.
18. When changes are suggested to the draft EHC plan by the child’s parent or the young person and agreed by the local authority, the draft plan should be amended and issued as the final EHC plan as quickly as possible. The final EHC plan can differ from the draft EHC plan only as a result of any representations made by the child’s parent or the young person and decisions made about the school - or type of school - to be named in the EHC plan.
19. If a parent requests a particular maintained school, or an independent school that is approved by the Secretary of State, this must be named in the EHC plan unless it would be unsuitable for the child or incompatible with the education of others.
20. Parents may also request an independent school that is not approved by the Secretary of State and councils must consider this request. Councils are not under a duty to name such a school in the plan, but they must have regard to the general principle in the Education Act 1996 that children should be educated in accordance with their parents' wishes, so long as this is compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure. Councils should also be satisfied that the school would admit the child as these providers are not subject to the duty to admit a child even if named in their EHC plan.
21. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan (or that no placement was named) we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)

What happened

22. I have set out the key events. This is not meant to detail everything that happened.
23. Mr F’s son, J, has ADHD. He is attending a mainstream primary school (School X) and has an EHC plan. J is due to start secondary school in September 2023.
24. The annual review on 7 April 2022 concluded that no changes were needed to J’s EHC plan other than considering his secondary school placement. School X sent the report of the annual review to the Council on 26 May.
25. The Council sent its decision letter to Mr F on 1 June. This said it would amend the EHC plan. The amendment notice and draft EHC plan were issued on 7 July 2022 and the Council met with Mr F to discuss it.
26. The Council should have received Mr F’s comments by 22 July 2022 and then consulted with schools. Instead, it issued a further draft EHC plan on 3 August.
27. I have not seen evidence of when J’s parents submitted their comments on this revised draft or told the Council their preferred school. But the Council says consultations with schools were started. There was then no communication with Mr F until 27 September 2022.
28. The Council consulted Mr F’s preferred school (School Y), which is an independent specialist school not approved by the Secretary of State, on 2 December 2022. School Y replied on the same day that it had no capacity to take J until Easter 2024.
29. Mr F complained on 4 December 2022 that the final EHC plan had not yet been issued and that the Council had delayed J’s placement in a secondary school.
30. The Council’s response of 3 January 2023 said:
• It aimed to confirm the school placement for September 2023 by the phase transfer deadline date of 15th February 2023.
• The Council apologised that it had been unable to comply with the statutory deadline to issue its decision notice four weeks after the April 2022 annual review as it had not received the report from School X until 26 May.
• Consultations with schools had started but it apologised for a lack of communication from late August to 27 September 2022 which had been caused by staffing changes.
• School Y could not offer a place in September 2023. The Council was discussing options with Mr F. As there had been several changes to the amendment notice and an extensive consultation search, it had not yet been able to confirm a school placement.
31. Mr F remained dissatisfied and asked for his complaint to be escalated to the next stage. He said School Y had had capacity for September 2023 until November 2022. The Council’s delays had therefore caused J to miss out on a place.
32. The Council’s final response on 9 February 2023 said its records showed a considerable number of children had wanted to attend School Y and the earliest date it could offer was Easter 2024. A place would not have been available if requested sooner.
33. The Council apologised it had not met the statutory deadlines in relation to issuing a final EHC plan eight weeks after the amendment notice of 7 July 2022. But it was on track to issue one before the phase transfer deadline of 15 February 2023.
34. The final EHC plan was issued on 14 February 2023. It named School X but from September 2023 it named a type of placement (a specialist setting). At this point, Mr F had the right to appeal to the SEND Tribunal.
35. Mr F came to the Ombudsman. He told me that School X could no longer meet J’s needs and J had started a part-time timetable in April 2023. He was working with the Council to find a suitable placement for J from September 2023.

My findings

36. The Council has accepted that it did not meet the statutory deadline to issue a decision notice four weeks after the 7 April 2022 annual review, which was fault. This was because it did not receive the report from School X until 26 May 2022. The Council has already apologised for this. I consider that to be a proportionate and appropriate remedy for the injustice caused.
37. This is because I consider it is unlikely Mr F would have wanted to appeal to the SEND Tribunal about the decision to amend the EHC plan and the annual review had not recommended any changes to the provision in the plan. So I do not consider J or Mr F were caused injustice which warrants further remedy than the apology already given.
38. Once the draft plan was issued on 7 July, Mr F had 15 days to comment and suggest a preferred school. The Council should then have consulted with schools in late July 2022. Instead, it issued a revised draft EHC plan.
39. The high court decision in 2022 says that final EHC plans should be issued twelve weeks after the annual review meeting. I accept that the Council may not have been aware of this judgment at the time. Nonetheless, the Code says a final plan must be issued within eight weeks of the amendment notice.
40. Whilst I appreciate the Council was trying to incorporate Mr F’s suggestions and issue a plan he was happy with, it should have followed the statutory process. The Council issued its amendment notice and draft plan on 7 July 2022, so the final plan should have been issued by 1 September 2022. It was not issued until 14 February 2023, which is fault.
41. I have not seen when Mr F expressed a preference for School Y, but on the evidence seen I find there was a delay in consulting School Y, which is fault.
42. I have carefully considered the impact this delay had on J and Mr F. Whilst Mr F says School Y had spaces until November 2022, the Council says it did not. I therefore cannot be sure on the evidence seen whether School Y could have offered J a place. This uncertainty is an injustice to J and Mr F.
43. Mr F says the delays caused J’s mental health to deteriorate and as a result he disengaged from school. In response to my draft decision, Mr F said CAMHS had confirmed J’s anxiety was directly linked to uncertainty over his school and that he had had suicidal thoughts. I cannot remedy that no secondary school was named in the plan as this was appealable to the Tribunal. If there had been no delay, the plan would have been issued in September 2022 and it is likely it would not have named a secondary school. So I cannot say that the delay in issuing a final EHC plan was the sole cause of J’s mental health issues or disengagement from School X. But I consider the uncertainty about which secondary school he would be attending caused distress to J and the family.
44. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. Our guidance on remedies says a symbolic, moderate payment may be appropriate to remedy uncertainty caused by fault.
45. The Council issued a final EHC plan before the phase transfer deadline of 15 February. If Mr F was unhappy that no school was named, or with School X being named, it would have been reasonable for him to have appealed to the SEND Tribunal about this. I therefore cannot investigate any complaint about the school named or remedy any loss of education caused by the placements named in the plan after February 2023.

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Agreed action

46. Within a month of my final decision, the Council has agreed to pay Mr F £300 and to pay J £300 to remedy the uncertainty and distress caused by delays in consulting School Y and issuing the final EHC plan.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman