Summary: Mrs X complained about the Council’s actions and delays with her son’s Education, Health and Care Plan after previous annual reviews, and it did not secure special educational provision for him. The Council accepted fault and offered a remedy. We are satisfied the remedy appropriately acknowledges the injustice from not securing his provision as specified in his plan. The Council has also agreed to a further financial symbolic remedy payment to recognise Mrs X’s distress during these matters.

The complaint

1. Mrs X complains about the Council’s actions and delays in its handling of her son’s Education, Health, and Care Plan (“EHC plan”). It has failed to issue a final EHC plan within statutory timescales over the past few years. This includes from the annual review for his post-16 setting transfer where she says the Council did not consult with placements and did not deliver provision. She says the Council communicated poorly and it also delayed in handling her complaint. This has caused significant uncertainty, distress and frustration for the family, and her son did not get the educational provision or support he needed.
2. The Council has since considered her complaint, accepted fault, and offered a remedy. Mrs X has asked the Ombudsman to review what the Council has put forward.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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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What I have and have not investigated

7. Mrs X complains of matters stemming from 2020 after the Council issued a final EHC plan and mediation efforts after. I have not exercised discretion to consider this far back as she could have complained to us about this part sooner. Additionally, any concerns about the naming of the school placement carried appeal rights to the SEND Tribunal which we would have expected her to use.
8. I have included Paragraph 22 for some relevant background and context for the rest of the complaint. I am considering events from January 2022 up to the Council’s final response to her complaint.

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How I considered this complaint

9. I discussed the complaint with Mrs X and considered her views.
10. I made enquiries of the Council and considered its written responses and information it provided.
11. 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

Law and administrative background

Education, Health and Care Plans (EHC plan)

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
13. Parents have a right of appeal to the SEND Tribunal if they disagree with:
• the description of a child or young person’s Special Educational Needs (Section B), the special educational provision specified (Section F), and/or the school or placement specified (Section I).
14. The right of appeal is only engaged when the final amended plan is issued.
15. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC plan (Section 42 Children and Families Act).

Annual Reviews

16. The council must arrange for the EHC plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC plan and within 12 months of any later reviews.
17. Within four weeks of a review meeting, the 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) 
18. Where the 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). Case law sets out this should happen within four weeks of the date of the review meeting.
19. If the council decides 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)
20. For young people moving from secondary school to a post-16 institution, the council must review and amend the EHC plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

Background

21. Mrs X’s son (“Y”) has special educational needs.
22. In March 2021, an annual review of Y’s EHC plan took place. The Council did not issue a decision letter or final EHC plan within statutory timelines. It issued a final EHC plan from this less than a week before Y’s next transitional annual review in 2022. At the time, he attended “School A” (an independent school). Section I did not name this school. It said, “placement will be secondary mainstream school, with the Council to meet the cost of SEN provision”.

What happened – summary of key relevant events

23. In mid-January 2022, Y’s transitional annual review took place.
24. Between the annual review held in January 2022 and September 2022, Mrs X said there had been numerous communication failings by the Council with a lack of action, contact and administrative errors relating to school consultations for Y’s post-16 placement.
25. In September, an independent advisor contacted the Council on Mrs X’s behalf raising serious concerns. They added Y had been offered a place directly by “School B” for sixth form through Y’s family contacting it themselves, rather than through the Council. They raised concerns about missed and limited opportunities for Y as the lack of a draft EHC plan or communication from the Council meant other placements could not engage with him or understand what his needs were. The Council had not issued a final EHC plan for Y’s transition year within statutory timescales or responded about any agreed amendments after the January 2022 annual review.

Mrs X’s complaint

26. At the end of November, Mrs X wrote to the Council to formally complain.
27. In February 2023, School B held an annual review of Y’s EHC plan. The Council said to me, while a Council officer attended, he did not receive the paperwork before he unexpectedly went on prolonged leave.
28. In March, Mrs X complained to us. She added the Council had failed to secure provision for Y as per his current EHC plan. She had not heard back from the Council about her complaint.
29. After contact from us, the Council said it would respond to her complaint by mid-April. Following a second complaint from Mrs X about continual delays and further contact from us, a Deputy Director reviewed Y’s case. They found fault with the service provided to the family. They offered personal meetings to Mrs X to discuss her complaint in detail with a personal apology for the shortfalls identified.
30. In August, the Council offered Mrs X:
• A total of £14,290 to remedy the lack of provision and equipment that would have been available to Y within an EHC plan. It calculated this after consideration of issues Mrs X raised during the meetings and the costings she provided for provision she had put in place for Y.
31. Mrs X returned to us to consider her complaint. She said her priority was to ensure Y had an updated assessment of his needs and relevant provision set up.

The Council’s response to my enquiries

32. The Council offered an additional remedy of £500 to acknowledge the delay in resolving the formal complaint initially made by Mrs X in November 2022.
33. It said an interim review took place in July 2023 following Mrs X’s meetings with the Deputy Director. It issued a final EHC plan for Y in January 2024.
34. The Council accepted poor record keeping, delays with Y’s annual reviews and final EHC plans. I asked if the Council had put in place any service improvements to prevent recurrence of faults it identified. The Council said some of the practice was historical and did not reflect current practice. In order to improve:
• It had sourced an additional £600,000 in the 2023/2024 financial year to use for recruitment in the SEND area;
• The SEND Referral and Assessment team would change its structure and operating practice to provide more staff stability and consistency for families, to ensure clearer case accountability going forward; and
• It was changing its case management system for its SEND team to ensure easier and more accurate record keeping for staff. This would be accompanied with specific training sessions.

Analysis

Remedy offered by the Council

35. I have taken into account our published Guidance on Remedies (“GOR”). Our approach to remedying injustice is to try to put complainants back in the position they would have been, had it not been for the fault. When this is not possible, we can recommend symbolic payments to acknowledge the impact of the faults. These are intended to be symbolic, not purely financial, and we do not assess economic losses.
36. I recognise Y attended school throughout the period above, but Mrs X said the Council did not secure the special educational provision in his plan as it should have. I have seen what the Council has considered and how it came to the amount it offered to cover the approximate costs of provision Mrs X put in place for him. I am satisfied the Council’s approach is a fair way to remedy this.
37. I welcome the Council’s offer of an additional remedy of £500 for its delay with handling Mrs X’s formal complaint. This is at the higher end of what is recommended in our GOR.

Remaining injustice

38. However, the Council has not considered a remedy for Mrs X’s and Y’s frustration, uncertainty, and distress experienced with the annual review process since 2022 and significant delays in issuing a final EHC plan after them. This also frustrated Mrs X’s right to appeal for a significant amount of time.
39. Additionally, from information provided by Mrs X, she says she struggled with communication from the Council and had to chase several times. On a number of occasions, it appears it did not respond or take action in a timely manner. This is fault causing further frustration. I recommended a further remedy below to acknowledge the remaining injustice with the Council’s faults.
40. I note the Council has now since issued a final EHC plan for Y. If Mrs X is dissatisfied with the time taken for this since her meetings in June 2023, these would be new matters since her complaint to us. She is entitled to raise a new complaint to the Council for it to address through its complaints process.
41. In response to my draft decision, Mrs X said after she received the Council’s final remedy offer, the Council had since said it would fund additional external provision for Y (specific sessions by an external provider) from autumn 2023 up until it issued his final EHC plan at the start of 2024. The Council confirmed it agreed to this and, for fairness, I have included this as part of the agreed actions below.

Service improvements

42. I acknowledge the wide scale steps the Council has recently taken to improve the standard of its services and learning from Mrs X’s complaint. I am satisfied these actions are appropriate to help prevent future recurrence of wider faults. These will need time to embed, therefore I have not recommended further service improvements for now.

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Agreed action

43. To remedy the personal injustice set out above, the Council has agreed to carry out the following actions within one month of the final decision:
• Provide a fresh apology in writing to Mrs X and Y for the injustice caused by the faults identified;
• Pay Mrs X the £14,290 it offered to cover the expenses of provision she put in place for Y;
• Pay Mrs X the £500 it offered in recognition of her time and trouble and the delay in responding to her complaint; and
• Pay Mrs X an additional £400 to recognise her and Y’s uncertainty, frustration, and distress with the faults identified and Mrs X’s frustrated appeal rights.
• This is a total of £15,190.
44. In addition, the Council has also agreed to reimburse Mrs X for the additional external provision she paid for Y, as per Paragraph 41, in line with its agreement with her (on receipt of invoices provided to it by her).
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. The Council accepted fault causing injustice to Mrs X and Y. The Council has agreed to my recommendations to remedy the remaining injustice, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman