Summary: Mrs X complains there was delay in issuing her son’s revised Education Health and Care Plan. We found there was significant delay and insufficient oversight of the process. There was also a failure to ensure her son received an education for a period of time and the Council failed to properly respond to the complaint. The Council explained it had started improvement work to restore its service level for children with Special Education Needs. We recommended payments to Mrs X to recognise the loss of education to Y and the distress caused.

The complaint

1. Mrs X complains there was delay in issuing her son's revised Education, Health and Care plan (EHC Plan) following an Annual Review. She complained this affected her son’s education.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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. 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

6. We investigated Mrs X’s complaint from late 2021. While the earliest events of the complaint occurred over 12 months ago, the issues she raised were continuous and there was delay by the Council in this period. We exercised discretion to consider these events as a result.

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How I considered this complaint

7. I considered Mrs X’s complaint and the information she provided. I asked the Council for information and considered its response to the complaint.
8. 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

Statutory Guidance

9. Statutory guidance states the council must arrange for an 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. The process is only complete when the council issues a decision about the review.

10. 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. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

11. 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. The Council should then issue any final amended plan within 8 weeks of the amendment notice. Therefore, a final plan must be issued within 12 weeks of the review meeting.

12. For young people moving from secondary school to a post-16 institution or apprenticeship, 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.  

What Happened

Background

13. From September 2021 the Council was providing funding for Y to receive 15 hours of tuition at home. This is referred to as Education other than at School (EOTAS).

Education Health and Care Plan review

14. A review of Y’s Education Health and Care Plan (EHC Plan) took place on 17 December 2021.
15. The Council told us it had significant gaps in its records about what had happened in Special Educational Needs cases, and this included Y’s. It was able to tell us that some actions following the review were taken in March 2022 and a consultation was issued to a college in April 2022. In May 2022 the Council challenged a response from the College stating it could not meet Y’s needs. It did not explain to us what the outcome of this was. However, the Council states it understands Y became ill and was not able to take up a place on his chosen course.
16. In July 2022 the Council told us Mrs X expressed a preference for Education Other Than At School (EOTAS) tuition to continue for the coming year. This was agreed and the Council issued a final EHC Plan on 17 August 2022. This stated EOTAS provision would continue.
17. Although Y’s EHC Plan stated he should receive EOTAS provision, the Council told us it’s records only showed funding being provided for this up until 30 November 2022. Evidence provided by Mrs X showed the provision ended at this point.
18. The Council told us Y started a new college placement in January 2023. It did not arrange this, but the Council acknowledged it was aware of it. Y’s EHC Plan was not amended to reflect the change in his education provision at that time. The Council stated it had contact with Mrs X during this time but had no record of any actions being taken.
19. A further annual review of Y’s EHC Plan took place on 25 April 2023. The Council made a decision on 7 July 2023 that Y’s EHC Plan would be amended.
20. The Council stated an officer worked with the family from July 2023 and identified a college placement for Y. However, the Council did not set out the further actions taken towards issuing Y’s EHC Plan after July 2023. The Council only issued Y’s revised EHC Plan on 19 October 2023.

Education

21. Y was receiving the EOTAS provision set out in his EHC Plan up until November 2022. After November 2022 the Council has no record of making educational provision for Y. Y was out of education between November 2022 and January 2023 when he began a new college placement.
22. I understand Y attended the college placement until July 2023. Y began a new college placement on 1 September 2023.

Mrs X’s Complaint

23. Mrs X complained in June 2023 about the delay in dealing with the EHC Plan amendments and not keeping to the statutory timescales for issuing the plan. The Council did not treat this as a complaint. Although it responded to a wider complaint from Mrs X, when doing so it did not address this complaint.
24. The Council told us it recognised there had been delay in acting in Y’s case and it accepted that its records were incomplete.
25. The Council told us it had:
• recently appointed new managers;
• begun an external audit to inform recovery plans;
• put in place improved reporting and monitoring processes to better enable effective oversight of performance; and;
• training had been provided which also included the need to accurate record actions taken.
26. In recognition of the issues in Mrs X and Y’s case the Council offered to apologise for the delays and lack of sufficient oversight of Y’s case. It also offered to pay Y £300 to recognise the impact of the delays and a further payment of £300 for the lack of oversight between November 2022 and July 2023.

Was there fault by the Council

27. Statutory guidance sets out the timescales within which actions should be taken to issue and review EHC Plans. There was fault by the Council. It repeatedly missed the statutory deadlines when reviewing and issuing Y’s EHC Plan.
28. Following the review of Y’s EHC Plan at the end of 2021, the Council should have issued a decision to amend notice by 14 January 2022. It should then have issued a final plan within 8 weeks, by 11 March 2022. In total, this should have taken 12 weeks from the date of the review. The Council did not issue the final EHC Plan until 7 August 2022. This was 21 weeks late.
29. There was further delay in 2023. The Council should decide within four weeks of a review meeting whether an EHC Plan will be maintained or amended. The Council was six weeks late confirming that it would amend Y’s EHC Plan. The final plan should have been issued within 12 weeks of the review meeting, by 1 September. The Council was seven weeks late issuing the plan.
30. In addition to the delays, the Council also failed to maintain adequate records to show what actions had been taken and when. This too was fault.
31. For a period between November 2022 and January 2023, the Council took no action to ensure that Y was not receiving a suitable, full-time education. The failure to ensure Y received an education in this period was also fault.
32. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure we recommend takes account of the severity of the child’s special education needs, whether any provision was made and whether this was a key year of education.
33. In Y’s case we based the remedy on £2000 per term. This is because of Y’s needs and because the events occurred during a significant year, as this was a year in which he was transitioning to a further education college. Y missed education for half of a school term (November to January 2023). So, we have recommended a payment of £1000 to recognise this. We also recommended the Council made a payment to Mrs X to recognise the distress caused by the delays in dealing with the EHC Plan and the complaint.
34. Given the work the Council has already begun to improve its handling of EHC Plans and the changes being implementing to improve monitoring and oversight, I have not made specific improvement recommendations.

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Agreed action

35. Within four weeks of my final decision:
36. The Council agreed to send a written apology to Mrs X and Y to recognise the delay in dealing with his EHC Plan in 2021/2 and 2022/3, the lack of response to Mrs X’s complaint and for the lack of educational provision.
37. To recognise the distress caused to Mrs X as a result of the delays and the way Y’s case was handled the Council agreed to pay her £300.
38. To recognise the lack of educational provision between November 2022 and January 2023, the Council agreed to make a payment to Mrs X, for Y, of £1000.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. There was fault by the Council that caused injustice.

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Investigator's decision on behalf of the Ombudsman