Summary: Mrs B complained about excessive delay by the Council in issuing a final EHC plan for her son C following a needs assessment and in producing an amended EHC plan following an annual review. It also failed to properly investigate the matter when responding to Mrs B’s complaint. We have found fault causing injustice to Mrs B and C. The Council has agreed to pay Mrs B £500 for herself, and £1250 for the benefit of C’s education, in addition to completing the annual review process. The Council has also agreed to improve its procedures for the future.

The complaint

1. Mrs B complained that Suffolk County Council (the Council) delayed excessively and significantly outside the statutory timescale in producing her son, C’s Education, Health and Care (EHC) plan following an assessment. It misled Mrs B about the status of the plan when she complained causing her to complain again. C missed on educational support for approximately a year. Mrs B was caused distress, frustration and inconvenience in chasing up the Council.

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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)

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How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 found

Special educational needs

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 Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

EHC needs assessment

8. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Annual review of an EHC plan

9. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
10. 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)
11. 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)
12. 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)
13. 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.

What happened

14. Mrs B’s son C has special educational needs. In December 2021 his school sent a request for an EHC needs assessment to the Council. At this point C was having some extra support at school including weekly social skills lessons and 1:1 sessions with the teacher responsible for special educational needs. He was waiting for an appointment with a psychologist for some cognitive behavioural sessions.
15. The Council refused the request at the end of January 2022. The Council recommended that the school refer C to specialist education services and put in place robust transition arrangements for the transfer to secondary education in September 2022.
16. At the end of March 2022, the Council agreed to carry out an assessment and started to obtain advice from the relevant agencies in April 2022, including an educational psychologist. On 24 June 2022 the Council decided not to issue an EHC plan.
17. Following mediation, the Council agreed shortly afterwards to issue an EHCP. The Council says it sent a draft EHC plan to Mrs B on 29 July 2022. Mrs B received a second draft EHC plan on 15 September 2022. In December 2022 Mrs B sent an occupational therapy sensory report she had obtained which made various recommendations of support C needed in school. The Council said it could not amend a final EHC plan and she should wait for the annual review.
18. Mrs B then complained about the delay in completing the assessment and issuing a final EHC plan. The Council responded at stage one of its complaints procedure on 24 March 2023. It apologised for the delay in issuing the EHC plan and said this was due to a national shortage of educational psychologists. It said Mrs B appeared not to have received the final EHC plan sent in September 2022 and had missed the appeal deadline. It also said the case worker had spoken by telephone to Mrs B’s husband about the final EHC plan. It said the requested amendments from Mrs B had been received too late to be included and an early annual review could be arranged to consider them. In the light of Mrs B’s dissatisfaction, it said it would send the plan to the quality assurance team to analyse its validity and it offered Mrs B £250.
19. On 29 March 2023 Mrs B disputed the complaint response and sent evidence showing that the document sent to her in September 2022 was only a draft EHC plan and it had never been finalised. She also disputed that the case worker had ever spoken to her husband.
20. The Council sent a further stage one complaint response on 21 April 2023 along with the final EHC plan. It apologised for the delay and for the inaccuracy in the previous response which it said was due to miscommunication between the different departments. It said it had taken steps to prevent the issue recurring and increased the offer of payment to £350.
21. Mrs B escalated her complaint to stage two on 8 May 2023. On 9 May 2023 the school held an annual review. The Council said it received the paperwork on 6 July 2023 and is still working on amending C’s EHC plan.
22. The Council also said it sent the draft EHC plan to the school in September 2022, so the school was able to put provision in place for C at that time. It has been unable to provide any case records before April 2023 due to a change of systems and an admission that its previous case recording was poor.
23. Mrs B complained to us in July 2023. She said that after the draft EHC plan from September 2022 the Council only put in some of her requested amendments and that the school only put support in place because she persisted in persuading it to do so. She estimates she has spent over 100 hours chasing up the Council and dealing with the EHC plan. She said it is lost time she could have spent with C, and it has been very stressful, which has affected the whole family.
24. In terms of the support C has missed out on she says it is difficult to quantify but some things were not put in place until the final plan was issued in April 2023 including meet and greet sessions in the morning, fully differentiated PE lessons and homework. She also says the delay meant that the Council did not name her preferred secondary school in the final EHC plan because by the time it was finalised C had settled in the school offered through the normal admissions round and she felt it would be too disruptive to move him.

Analysis

Delay in issuing EHC plan

25. The Council should have issued the final EHC plan by 4 May 2022. It did not do so until 21 April 2023, almost a year later. This was fault which caused C to miss out on the full support he was entitled to at school for approximately three terms. I accept he was in school, receiving an education and some support, but the Council has provided no evidence of what he received and whether this was in line with the provision outlined in the final EHC plan. It also caused Mrs B uncertainty over whether C had missed out on an opportunity to attend a better school due to the delays and whether he would have made better progress with the full support in place a year earlier. Mrs B was also caused a significant amount of distress and time and trouble in chasing up the Council for a year

Delay in completing the annual review

26. The annual review took place in May 2023 and the Council had the paperwork by 7 July 2023. However, the Council has still not issued an amended EHC plan over six months later. This has caused further uncertainty and distress to Mrs B and C over whether he is receiving the correct support.

Complaint handling

27. The Council’s first complaint response contained a major inaccuracy in the basic facts of the case meaning it had to send a second response along with the final EHC plan a month later. This was fault which caused delay, frustration and time and trouble.
28. Although the Council has accepted some fault causing injustice, it has not provided evidence to support its view that C has not experienced injustice. It has also offered a very low remedy payment not in line with our Guidance on Remedies.

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Agreed action

29. In recognition of the injustice caused to Mrs B and C, I recommended that the Council within one month of the date of my final decision:
• apologises to Mrs B and C;
• pays Mrs B £500 for her injustice and £1250 for the benefit of C’s education;
• completes the annual review process and issues an amended EHCP.
30. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.
31. I note that we have dealt with a number of complaints against the Council in the last two years where we have identified failures to keep to the statutory timescales in issuing EHC plans and completing Annual Reviews. We have made recommendations to try and improve these delays. I also note that the Council is working on improvements to its SEND service following a major review in June 2021 and the latest update on its website is from Autumn 2022.
32. With this in mind, I recommended that the Council within three months, updates the LGSCO with its progress in improving its adherence to statutory times scales both in issuing EHC plans following a needs assessment and completing the Annual Review process and provides details of ongoing actions to secure improvements in these areas.
33. The Council has provided an update to us.

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Final decision

34. I consider this is a proportionate way of putting right the injustice caused to Mrs B and C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman