Summary: Miss X complained about the Council’s delays with decision making in respect of her son’s Education, Health and Care Plan after a review. We found the Council at fault for significant delays. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Miss X complains about the Council's significant delay and failure to meet legal timeframes with the review process of her son's Education, Health and Care (“EHC”) Plan. She says this has caused distress and frustration and has impacted on her son’s education, needs, and welfare in the meantime.

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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. 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. The courts have established that if someone has appealed to the Tribunal, the law says 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)
5. 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)
6. 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

7. I have investigated matters from January 2023 to November 2023. During the time period and events covered in Miss X’s complaint, she had appeal rights with the SEND Tribunal and chose to go through mediation (where the principles of Paragraph 4 still apply). Any dispute with an appealable decision about an EHC Plan is outside of the Ombudsman’s jurisdiction to investigate.

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How I considered this complaint

8. I discussed the complaint with Miss X and considered her views.
9. I made enquiries of the Council and considered its written responses and information it provided.
10. Miss 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

Law and administrative background

Education, Health and Care Plans (EHC Plans)

11. 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. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
12. 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 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.
13. 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) 
14. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the Tribunal.

What happened – summary of key relevant events

15. Miss X’s son (“Y”) attended the “School”. He has an EHC Plan.
16. In mid-January 2023, the School held a review of Y’s EHC Plan. Miss X requested a different school placement for the next school year. This review also included a request to the Council from the School for additional funding to support him.
17. In late-February 2023, the Council received the review paperwork from the School.
18. Miss X chased on outcome on several occasions. The Council explained there were delays with this due to staffing pressures.
19. In March 2023, Miss X formally complained to the Council about the delay with its decision regarding Y’s annual review.
20. In late May 2023, the Council responded at Stage One. It apologised for the delays and upheld her complaint. It said it would confirm a decision by mid-June.
21. At the start of July 2023, the Council sent Miss X a letter to confirm it would not be making changes to Y’s EHC Plan.
22. Miss X requested to go to mediation against the Council’s decision.
23. In September 2023, Miss X asked the Council if it had agreed to the additional funding request made by the School at the annual review.
24. In early October 2023, Miss X escalated her complaint. She was dissatisfied with the Council’s continual delay with making decisions.
25. In early November 2023, the Council responded at Stage Two and upheld her complaint about the further delay. It said it reviewed the request in mid-October 2023 and agreed a costed package for Y for September 2023 to July 2024. It apologised and said this decision had been outstanding from the annual review held in January 2023.

Analysis

EHC Plan annual review

26. After the annual review in mid-January 2023, the Council should have issued a decision letter confirming if it would maintain, amend or discontinue Y’s EHC Plan within four weeks. In this case, by mid-February. I understand some initial delay with the School not sending the relevant paperwork for over a month, but the Council is ultimately responsible for the overall process. Even after this, the Council did not issue its decision until early July. This is notably outside of statutory timeframes with a delay of around four and a half months. This is fault.
27. This caused injustice to Miss X with avoidable distress, frustration and she had to wait longer than necessary to receive a decision. It also delayed her appeal rights, which she could have used sooner if it had not been for the delay.

Funding request

28. The Council accepted it also delayed in making a decision about the School’s additional funding request from the annual review in January 2023. This request appeared to be for extra support to help deliver the provision already agreed in Y’s current EHC Plan at the time (in my view, this is separable to the Council’s later decision not to amend his EHC Plan after the review, therefore I can consider this part).
29. The Council took 9 months to make this decision which is a significant amount of time. The Council did not give reasons or an explanation for the delay; it let this drift. This is fault.
30. Miss X said to me she is not clear what has been put in place since the agreed funding decision. On balance of evidence, I cannot say whether additional support would have been put in sooner for Y had the Council made a timely decision. However, there was avoidable uncertainty with the wait for a decision and whether he may have missed out on extra support and if it could have had an impact on his progress. This uncertainty is injustice to Miss X.

Service improvements

31. We have made decisions on several recent complaints highlighting similar issues with the Council. These have recommended actions for the Council to carry out to prevent future recurrence of faults. We recognise it will take time to address failings identified and for improvements to be implemented and we will monitor the effectiveness of these. Therefore, I have not made further recommendations at this time.

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Agreed action

32. To remedy the personal injustice set out above, the Council has agreed to carry out the following actions within one month of the final decision:
• Apologise in writing to Miss X (in line with our guidance on making an effective apology) for the frustration and distress caused by the faults identified above; and
• Pay Miss X £400 as a symbolic payment to acknowledge her injustice with the Council’s significant delay in completing the annual review process for Y and its decision making.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I found fault with the Council which caused injustice to Miss X. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman