Summary: The Council was at fault because it delayed issuing a revised education, health and care plan for a young person, and because of difficulties the complainant had in contacting relevant officers to discuss the young person’s case. The Council has agreed to offer a financial remedy to reflect the distress and frustration this caused.

The complaint

1. I will refer to the complainant as B. B is represented in his complaint by his mother, to whom I will refer as Mrs K.
2. Mrs K complains:

• the Council delayed responding to the annual review of B’s education, health and care (EHC) plan, which meant the Council issued his EHC plan late;
• the delay in the EHC plan meant B missed the first half-term of his college placement;
• she found it difficult to contact Council officers.

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The Ombudsman’s role and powers

3. 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)
4. The courts have said that where someone has sought a remedy by way of proceedings in any court of law or tribunal, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
5. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
6. 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.
7. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. (Local Government Act 1974, section 24A(6), as amended)

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What I have and have not investigated

8. I have investigated Mrs K’s complaints about the Council’s delay in responding to the annual review and issuing the EHC plan, and about the difficulties she had in contacting Council officers.
9. I have not investigated Mrs K’s complaint about B’s college placement. At the time of Mrs K’s complaint to the Council, it had not agreed this placement, and it did not name the college on B’s EHC plan when it issued it. Mrs K then lodged an appeal about this with the SEND Tribunal; but before the Tribunal heard the appeal, the Council conceded the matter and Mrs K withdrew her appeal.
10. As this part of Mrs K’s complaint has been subject to an appeal, the restriction on our jurisdiction set out at paragraphs 4-6 applies here, and I am therefore unable to investigate it. This includes the fact B missed the first half-term of college as a result of the delay in naming the placement.
11. Mrs K has also raised complaints about the Council’s handling of a subject access request, and potential breaches of data protection by the Council in its handling of B’s information. I have also not investigated these, as they are matters for the ICO, as described at paragraph 7.

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How I considered this complaint

12. I reviewed Mrs K’s correspondence with the Council, B’s EHC plan and associated documents.
13. I also shared a draft copy of this decision with each party for their comments.

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What I found

14. B is autistic and has significant learning difficulties. He has been subject to an EHC plan for several years.
15. On 26 April 2023, Mrs K submitted a stage 1 complaint to the Council. She said B’s EHC plan had been subject to an annual review at his current college on 3 February. The college had sent the review report to the Council on 10 February, along with some further information later in the month. She complained the Council should have confirmed by 3 March whether it intended to maintain, amend or cease the plan, but she had received nothing.
16. Mrs K went on to say B could not remain at his current placement and needed to move to a new college in September. She explained his preferred college had offered him a place, but that this offer would not remain open indefinitely, and it was therefore stressful the Council had not yet issued a draft amended EHC plan.
17. Mrs K also complained about difficulties she had had in contacting B’s case officer at the Council. She said B’s social worker had had no response to several emails and calls to the officer in November and December 2022, and a promised return call had then not materialised. She had then spoken to another officer in January, who had contacted the case officer on her behalf, but still did not hear from the case officer. She complained she had not been informed the case officer had left her role, and nor was she given the details of any replacement officer.
18. Mrs K said these delays had caused her and B anxiety and stress, with an impact on B’s mental health, and also on B’s current provision. She asked the Council to issue B’s draft EHC plan as a matter of urgency, to apologise, and to implement service improvements to prevent a recurrence.
19. The Council responded to Mrs K’s complaint on 12 June (by which point it had issued B’s EHC plan). It apologised for the delay following the annual review, acknowledging it should have begun making amendments immediately and to issue a final amended plan by 28 April.
20. The Council explained B’s case officer had left her role shortly after the annual review, and a new officer allocated to the case on 28 February. The Council said it had established that some information about the review had been sent only to the previous case officer’s email address, without being copied to her team’s email address. This meant the Council could not access this information once she left.
21. The Council said it had become aware of this problem after speaking to Mrs K in May, after she received the draft plan and noticed some information was missing. It had then requested the information again from B’s current college, and once it had received it, redrafted the EHC plan and issued an amended final plan on 12 June.
22. The Council noted Mrs K’s complaint about B’s preferred placement, but said it had not agreed this. For this reason, it had issued B’s final EHC plan without a specific placement named, to allow Mrs K to submit an appeal to the SEND Tribunal.
23. The Council apologised for the difficulties Mrs K had experienced in contacting officers. It said the service was working under significant pressure and at reduced capacity, a problem which continued. However, it said it was working to improve its communications as part of an improvement plan.
24. As I noted in the previous section, Mrs K lodged an appeal against the Council’s decision not to name B’s preferred college placement in his EHC plan. Before the Tribunal heard the appeal, the Council conceded this point and Mrs K withdrew the appeal. However, because of the delay this caused in naming the college on B’s EHC plan, he missed the first half-term.
25. Mrs K then referred her complaint to the Ombudsman in October.

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Legislative background

26. A child or young person with special educational needs may have an 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.
27. 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.
28. 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 SEND Code of Practice paragraph 9.176) 
29. 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.
30. 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 SEND Code of Practice paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
31. For young people moving between post-16 institutions, the council should normally complete the review process by 31 March where a young person is expected to transfer to a new institution in the new academic year. (SEND Code of Practice paragraph 9.181)

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Analysis

32. The Council has acknowledged it delayed responding to B’s annual review, and says it should have issued his final amended EHC plan by 28 April, but accepted it did not do this until 12 June.
33. Given B was due to transfer to a new college in September, according to the Code of Practice this means the review process “should normally” have been completed by 31 March. It is unclear how the Council has calculated 28 April as the deadline.
34. This said, the wording of the Code of Practice demonstrates 31 March is not intended to be an absolute deadline, which means it is permissible for councils not to adhere to it in all circumstances. And given the Council only received the review report from B’s then-current college on 10 February, I am conscious this did not leave much time for the Council to consider it, make a decision to amend the EHC plan, and then actually issue the amended plan itself, if the deadline had been 31 March.
35. Either way, the Council issued the amended plan somewhere between 6-10 weeks late, and this was fault.
36. It is difficult to say this fault had any substantive impact on B’s education. I note, again, that B eventually missed the first half-term at his new college, but this arose because of Mrs K’s appeal to the tribunal, and not directly because of the delay in issuing the amended EHC plan. As I have explained, I am unable to investigate this point because it is excluded from our jurisdiction.
37. I am conscious the delay in issuing the EHC plan meant that Mrs K’s right to appeal to the tribunal was also delayed. It is arguable, therefore, that had the Council issued the plan on time, the matter of B’s placement would have been resolved in time for the start of the academic year. However, I consider it too speculative to make this as a finding, because of the number of variables involved.
38. Rather, I consider the clear injustice to B here to be the general frustration and distress arising from the delay in receiving his amended EHC plan. I also consider Mrs K herself has suffered similar frustration because of this.
39. Our published guidance on remedies says:

“Our recommendation for a remedy [for distress] needs to reflect all the circumstances including:

• the severity of the distress;
• the length of time involved;
• the number of people affected (for example, members of the complainant’s family as well as the complainant);
• whether the complainant or other persons affected are vulnerable and affected by distress more severely than most people; and
• any relevant professional opinion about the effects on any individual.

“Where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500.”

40. While still significant, I do not consider a delay of 6-10 weeks to be particularly extended. However, I have also considered the impact on B’s mental health caused by the delay in issuing his EHC plan, as described by Mrs K; as well as the impact on Mrs K herself. Taking these two points together, I consider the Council should offer B a remedy of £300, and Mrs K £200, to reflect their frustration and distress arising from the delay. I make recommendations to this effect.
41. Mrs K also complains about the difficulties she had with contacting the Council to discuss B’s case. She refers particularly to B’s case officer, whom B’s social worker tried to contact several times in November and December 2022 without response, followed by promised a phone call from the officer which did not come. She says later found this officer had left her role, but the Council failed to inform her of that, or give her the details of a replacement officer.
42. The Council has again accepted Mrs K’s criticisms. It has explained this occurred because of the pressures on its SEN service and a shortage of staff, problems which continue. However, it says it is implementing an improvement plan, with the aim of reducing becoming more proactive in its communication.
43. We are conscious many authorities are experiencing the type of problems the Council has described here. There is unfortunately no straightforward way to resolve this. However, it is positive the Council is implementing an improvement plan, and although we obviously cannot say how much difference this will make, I do not consider there is any additional meaningful recommendation I can make here.
44. But given the further injustice – again in the form of frustration – Mrs K has suffered as a result, I consider it appropriate to recommend the Council offer her an additional £100 to reflect this.

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Agreed action

45. Within one month of the date of my final decision, the Council has agreed to offer to pay:

• £300 to B to reflect his distress and frustration at the delay in issuing his EHC plan; and
• £300 to Mrs to reflect her distress and frustration at the delay in issuing B’s EHC plan, and her frustration at the difficulties she had in contacting officers to discuss this.

46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have completed my investigation with a finding of fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman