North Northamptonshire Council (23 009 595)
The Ombudsman's final decision:
Summary: We uphold a complaint about delay issuing Y’s final Education Health and Care Plan for his post-16 placement. This caused avoidable frustration, uncertainty and a delay in appeal rights. The Council will apologise and make Ms X a symbolic payment of £150.
The complaint
- Mrs X complained the Council:
- Missed the deadline for completing a post-16 annual review of her son Y’s Education, Health and Care (EHC) Plan and
- Failed to agree funding at its panel for a personal budget for English and Maths tuition and for therapies.
- This caused avoidable distress, a delay in appeal rights and a loss of educational provision.
The Ombudsman’s role and powers
- 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.
- We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
- The courts have established that if someone has appealed to the Tribunal, we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
- The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
- Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
- 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)
- 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)
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
- I considered the complaint to us, the Council’s response and documents in this statement. I discussed the complaint with Mrs X.
- Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I have and have not investigated
- I have not investigated complaint 1(b) because it is part of Ms X’s appeal to the SEND Tribunal and so the Millburn case described in paragraphs five and six above applies. The failure to agree a personal budget (funding) for Maths, English and therapies is part of Ms X’s appeal against the special educational provision in Section F of the EHC Plan. This means Y may be left without a remedy for potential lost provision during the appeal period as confirmed by the Field case described in paragraph seven.
- I have investigated complaint 1(a) because this is about delay before the right of appeal arose and it is not connected to or a consequence of the appeal.
What I found
Relevant law and guidance
- 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. The EHC Plan is set out in sections, including Section F which describes the special educational provision (SEP) and I which names the placement or setting. We cannot direct changes to the sections about their needs, education, or name of the educational placement. Only the tribunal or the council can do this.
- 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. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
- 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)
- 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.
- 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
- Y has special educational needs and the Council maintains an EHC Plan for him. He began Year 11 in September 2022.
- I have summarised the key events in the table below, taken from the Council’s final response to the complaint:
Date Event
End November 2022 Annual review meeting including discussion of post-16 settings.
9 February 2023 Council issued decision to amend EHC Plan, draft EHC Plan and asked Ms X to provide preferred placements.
7 March Case officer emailed Ms X requesting preferred placements.
22 March Ms X provided her suggested amendments to the draft EHC Plan.
31 March Ms X emailed her preferred placements.
10 May Council issued final EHC Plan naming a type of placement in Section I.
16 June Council consulted with two placements.
25 July Council issued final EHC Plan naming a college to start in September.
- Mrs X complained to us at the end of September. She had already escalated her complaint to the second stage of the Council’s complaint procedure, having received a response at stage one which she was not happy with. However, the Council had not responded at stage two.
- Ms X appealed to the SEND Tribunal in November. She appealed the SEP in Section F of the Plan and the placement named in Section I. She asked the Tribunal to name a dual placement (the college currently named and Education Other Than At School because she wants Y to have funded tuition in English and Maths). The Tribunal has listed the case for a final hearing in December 2024.
- The Council responded at the second stage of its complaints’ procedure at the beginning of December. I have summarised the main points below:
- It accepted the deadlines were missed. But the Council needed to know her preferred placements. This was discussed in November 2022 and requested on 7 March. The Council could not consult without this information.
- The Council did not receive her preferences until 31 March and so it was not possible to meet the deadline (which was the same day.)
- There was a gap between issuing the plan naming a type of setting and the plan naming a setting. The Council was sorry for this.
Findings
- The Council should have issued a decision to amend the EHC Plan within four weeks of the review meeting, so by the end of December 2022. It did not and so was at fault. The Council should also have issued amendment notices and a draft EHC Plan at the same time and did not do so until 9 February, a delay of almost two months. I accept the Council was seeking Ms X’s preferred placements, but it should have chased her promptly and my view is it is likely she would have responded. It was unfair of the Council to blame Ms X when the Council was responsible for most of the delay. The Council took from the end of March to the middle of June to consult with the placements Ms X identified at the end of March when it should have sent consultations out as soon as she provided her preferred placements. This delayed issuing the final plan naming the placement in July.
- The delay caused avoidable frustration, uncertainty and a delay in appeal rights, but no loss of educational provision because Y was receiving education at his pre-16 placement and the plan was for the post-16 placement starting the next school year.
Agreed action
- The Council will, within one month of this statement, apologise and make Ms X a symbolic payment of £150 for the injustice described in paragraph 26.
- The Council should provide us with evidence it has complied with the above actions.
Final decision
- We uphold a complaint about delay issuing Y’s final Education Health and Care Plan for his post-16 placement. This caused avoidable frustration, uncertainty and a delay in appeal rights. The Council will apologise and make Ms X a symbolic payment of £150.
- I completed the investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman