Dorset Council (23 009 049)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 28 Mar 2024

The Ombudsman's final decision:

Summary: Miss X complained about the Council’s failure to issue her son’s Education, Health and Care Plan within statutory timescales. The Council was at fault because it took too long to issue the plan following an annual review. We have also found the Council at fault for not communicating with Miss X effectively. The Council has agreed to apologise to Miss X and make a payment of £850 to acknowledge the loss of provision and the distress it caused.

The complaint

  1. The complainant, who I shall refer to as Miss X, complains the Council delayed issuing a final Education, Heath and Care (EHC) Plan for her son, Y, following an annual review in January 2023.

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The Ombudsman’s role and powers

  1. 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)
  2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
  3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  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)
  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

  1. I have not investigated matters in relation to the provision and placement named by the Council in Y’s EHC Plan because Miss X has used her right of appeal to the SEND Tribunal. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)

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How I considered this complaint

  1. I considered Miss X’s complaint and the information she provided.
  2. I considered the information I received from the Council in response to my enquiries.
  3. Miss X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

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What I found

Relevant law and guidance

  1. A child with special educational needs may have an Education, Health and Care (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 SEND Tribunal can do this.
  2. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
  3. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance. 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).
  4. 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).
  5. 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).
  6. 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.
  7. 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 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).

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What happened

  1. This is only a summary of events relevant to my investigation. It is not a chronology of everything that happened.
  2. Miss X has a son, Y, who has SEN and he has an Education, Health and Care (EHC) Plan maintained by the Council.
  3. An annual review of Y’s plan was held in January 2023. Miss X requested Y’s EHC Plan be amended as she felt his needs could be better met in a specialist setting. Her preference was School 2.
  4. The Council’s panel decided in March 2023 that Y did not require a specialist placement.
  5. In April 2023, the Council contacted Miss X and advised her Y’s EHC Plan was not sufficiently up to date to make the consultation with School 2 meaningful. It wanted to include information from a behaviour nurse specialist, Ms N, in relation to Y’s needs. The Council received the report from Ms N in April 2023.
  6. The Council sent the amended draft EHC Plan to Miss X in May 2023.
  7. The Council consulted with School 2 on 17 May 2023.
  8. In July 2023, the Council’s panel considered School 2’s offer of a place for Y. Miss X was not aware the offer would have to return to the panel again.
  9. Miss X complained to the Council in August 2023 for the delay in issuing Y’s EHC Plan and the poor communication from the Council.
  10. The Council issued the final EHC Plan in August 2023 after Miss X requested a copy of it. Miss X was not provided with information on her right to appeal to the SEND Tribunal. The Council sent the appeal information after Miss X requested it.
  11. The Council did not name a specialist setting for Y. Miss X has appealed the content of the plan to the SEND Tribunal.

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Analysis

  1. As the Council proposed to amend Y’s EHC Plan, it should have sent out details of the proposed amendments within 4 weeks of the annual review meeting and the final amended plan within 8 weeks of the proposed amendments. Therefore, the Council should have finalised Y’s EHC Plan by 24 April 2023. However, the Council issued Y’s final EHC Plan on 7 August 2023. This was fault and amounted to a delay of 15 weeks in producing a final EHC Plan.
  2. The Council says the delay in finalising the EHC Plan was the reason why it did not consult with placements sooner. This is a further injustice to Miss X and to Y.
  3. The Council also failed to provide Miss X with notification of her right to appeal to the SEND Tribunal. This is fault. Miss X had to chase the Council for this information.
  4. The delay in issuing the final EHC Plan also delayed Miss X’s appeal rights and caused frustration.
  5. The delay also meant that Y lost out on the opportunity to access the provision set out in the plan whilst he waited for it to be written and finalised. I have made a recommendation below to remedy this injustice.
  6. There was further frustration caused to Miss X because the Council did not advise her of the process to change settings and her correspondence to the Council went unanswered. This appears to be because Miss X was without a caseworker in early 2023. The evidence shows that once a new caseworker was allocated to Y, communication with Miss X improved.

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Agreed action

  1. To remedy the injustice to Miss X, the Council has agreed that within four weeks of my final decision, it will:
    • Apologise to Miss X for the delay in finalising Y’s EHC Plan, the delayed appeal rights, the lost opportunity for Y to access the educational provision set out in his EHC Plan and the lack of communication she received from the Council;
    • Pay Miss X £250 to acknowledge the distress and frustration caused by the wait for the EHC Plan to be issued;
    • Pay Miss X £600 to acknowledge Y’s lost opportunity to access the provision set out in his plan whilst it was delayed. I recommend Miss X uses this payment for the benefit of Y’s education.
  2. The Council will provide us with evidence it has complied with the above actions.

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Final decision

  1. The Council is at fault for the delay in issuing Y’s EHC Plan and for not communicating with Miss X effectively. The Council has agreed to remedy the injustice caused by the faults. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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