Summary: The Council took too long to issue the final Education Health and Care (EHC) plan for Miss B’s son. Its communication with her was not always clear. It is not clear that the Council took account of its anticipatory duty to meet Miss B’s need for reasonable adjustments and it is likely that this contributed to the delay. This caused Miss B distress and frustration, and meant her son missed out on the provision he was entitled to. The Council has agreed to remedy this.

The complaint

1. Miss B complains about how the Council handled her son’s educational needs. She says the Council:
• took too long to issue an Education Health and Care (EHC) plan following the annual review on 13 March 2023; and
• did not properly deal with her contact about this.
2. Miss B says her son, K, was not coping with mainstream school and needs specialist provision and to be reassessed. However, following her son’s annual review, the Council has not issued the new plan.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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

5. I considered the information provided by Miss B. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I took all comments received into account before issuing this final statement.

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What I found

The law and guidance

EHC plans

6. 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
7. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
8. 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)
9. 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)
10. 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)
11. 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 Equality Act

12. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
13. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
14. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

What happened

15. K was at a mainstream school. He has special educational needs relating to autistic spectrum disorder and global development delay. He has an EHC plan which sets out his educational provision.
16. The school held an annual review of the EHC plan on 13 March. Miss B raised concerns that the school could not meet her son’s needs. The school also expressed concerns. Miss B said she wanted K to go to a special school.
17. As I understand it there was some delay in the Council receiving the review paperwork. During this time, Miss B complained to the Council that it had not told her whether it was going to amend the EHC plan and whether it would agree to K going to a special school.
18. The Council acknowledged that there were concerns about how the school could meet K’s needs and it would take his case to its resource panel for it to decide whether the Council will fund a special school place.
19. On 9 May the Council gave Miss B notice that it intended to amend the EHC plan. At the end of May, its resource panel decided that K’s needs could be met in a mainstream school and the Council would not fund a place at special school. The Council issued the draft amended EHC plan on 31 May.
20. Miss B told the Council she was not happy with the contents of the plan and that as she has a traumatic brain injury, she would need a face-to-face meeting to discuss this, rather than to communicate by email or telephone. The relevant council officer could not meet with Miss B until 11 July. The Council told Miss B this and she agreed to wait for this date rather than continue with changes to the plan.
21. In the meantime, Miss B had again requested that K go to special school. The Council took K’s case back to its resource panel to decide again whether the Council could fund a place at special school. On 20 June, the Council again decided that K’s needs could be met in a mainstream school.
22. The Council met with Miss B on 11 July to discuss changes to the draft EHC plan. It issued a second draft plan, and met with Miss B on 4 August to discuss this. On 9 August, the Council agreed that it could fund K’s place at special school and that it would increase his support at his current mainstream school until a suitable place could be found.
23. On this basis, the Council issued a third draft EHC plan. Following, Miss B’s comments, the Council issued the final EHC plan. At this point Miss B was able to challenge the Council’s decision about the school place or the provision by appealing to the Tribunal.

Analysis

24. The School conducted the review on 13 March. This means that the Council had until 10 April to give Miss B notice that it intended to amend K’s EHC plan. The Council did not send the notice until 9 May. I appreciate that the Council was waiting for the school to send the review paperwork, but the school was acting on the Council’s behalf here. The Council retains overall responsibility for the review and its delay here was fault.
25. According to the guidelines, the Council should have completed the review process, and issued the final plan by 5 June. However it did not send the draft plan until 5 June. The Council had no prospect of issuing the final plan in time.
26. The Council issued the plan at the end of August, just over 24 weeks from the date of the review. This is double the total amount of time the Council should have taken. I appreciate that Miss B asked for a face-to-face meeting, and this caused some delay. However, the Council had already delayed significantly in issuing the draft, and so this was not the sole cause of the delay.
27. Moreover, the face-to-face meeting was to accommodate Miss B’s disability. Under the Equality Act, the Council should have anticipated her needs and made reasonable adjustments so that she was not disadvantaged. It is not clear that the Council checked Miss B’s need for reasonable adjustments at the beginning of the process, and whereas I appreciate that the relevant officer was not available, Miss B should not have been disadvantaged by her disability. I am not persuaded the Council had proper regard for its duties under the Equality Act, and overall the delay in issuing the final plan was fault by the Council.
28. Miss B also complained that the Council failed to communicate with her properly. I can see that while the Council kept in touch with Miss B, she received seemingly conflicting information. The school was concerned it could not meet K’s needs. The Council gave Miss B a list of special schools to view to see what might be suitable for her son. It then told her that it would not fund a space at a special school. It is not clear to me that the Council explained properly to Miss B that although it had given her that list, the panel may not approve a move; or how she could have faith in K’s support if the school could not meet his needs, but the Council refused to fund a special school place. Miss B was left in a very difficult position and her distress and uncertainty was made worse by the fact she had no right of appeal until the Council issued the final plan.
29. It is clear that Miss B’s concerns about the school’s ability to meet her son’s needs, had some foundation. And so the Council’s delay caused Miss B distress and frustration. Not only was she uncertain that her son was getting the correct provision, but she had no means to challenge this until the Council issued the final plan.
30. K missed some additional provision but was able to continue to attend school. I appreciate that part of the period of delay was during school holidays, a time when K would not receive any educational provision. However, that presented its own problems for Miss B in terms of visiting potential schools.

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Agreed action

31. In recognition of the impact on K and Mrs B, the Council will within one month of this decision:
• Apologise to Miss B for its shortcomings;
• Pay £70 for each academic week from 5 June 2023 to when it issued the final plan. This is in recognition that had the plan been issued sooner, K is likely to have had an increased level of support during those weeks;
• Pay Mrs B £300 in recognition of the distress, uncertainty and frustration it caused her;
• Share this decision with the relevant staff; and
• Share with staff the Ombudsman’s focus report ‘Equal Access: Getting it right for people with disabilities’, and remind them of the Council’s anticipatory duty to make reasonable adjustments.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation. There was fault causing injustice.
34. 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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Investigator's decision on behalf of the Ombudsman