Summary: Mr X complained the Council named an unsuitable school in his daughter, F’s Education, Health and Care (EHC) Plan following an annual review, failed to respond to his request for a re-assessment of F’s needs and did not respond to his mediation request. The Council was at fault. It did not respond to Mr X’s request for an EHC needs re-assessment. It then took six months to respond to his complaint about mediation. The Council agreed to apologise and make a symbolic payment to Mr X to recognise the distress and uncertainty caused. It will also consider whether to carry out an EHC needs re-assessment without further delay.

The complaint

1. Mr X complained the Council named an unsuitable school in his daughter, F’s Education, Health and Care (EHC) Plan following an annual review. Mr X said the Council did not respond to a mediation request or his complaint about the matter which meant he lost the opportunity to discuss the named school and appeal to the SEND tribunal.
2. Mr X also complained the Council ignored his request for a EHC needs re-assessment for F.
3. Mr X said the Council’s handling of the matter meant F is attending an unsuitable school which has caused distress and uncertainty.

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The Ombudsman’s role and powers

4. 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)
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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How I considered this complaint

7. I spoke to Mr X about his complaint and considered information he provided.
8. I considered information from the Council.
9. Mr X and the Council had an opportunity to comment on the draft decision and I considered comments before making a final decision.

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What I found

Education, Health and Care Plans

10. 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. 

Reviewing EHC Plans

11. 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.
12. 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)
13. Where the council proposes to amend an EHC Plan, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 4 weeks of the annual review meeting. The council must then issue any final amended Plan within 8 weeks of the amendment notice. This means a final Plan must be issued within 12 weeks of the review meeting.

Reassessment of EHC plans

14. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
15. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.

SEND Tribunal

16. 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.
17. There is a right of appeal to the tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment; and
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in the Plan.

Mediation

18. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal.
19. Parents or carers must use their right of appeal within two months of the date of the decision they are appealing or within one month from the date they obtain a mediation certificate, whichever is the later.

The Council’s complaints policy

20. The Council’s website outlines that it will respond to complaints within 10 working days. If it cannot respond within 10 working days it will let complainants know and explain why.

What happened

21. Mr X has a daughter, F who has an EHC Plan and was due to transition to secondary school in September 2023. In preparation for F’s transfer to secondary school an annual review of her EHC Plan was held in October 2022. The annual review paperwork was sent to the Council which showed Mr X wanted School B named as F’s secondary school. The annual review paperwork also showed an agreed action to progress Mr X’s request for a EHC needs re-assessment for F.
22. Records show the Council issued a final amended EHC Plan in mid-January 2023 naming School A, a mainstream secondary school for F from September 2023. Mr X however says he did not receive the copy of the Plan until early February 2023. There is no evidence the Council responded to Mr X about the EHC needs re-assessment.
23. Mr X requested mediation to discuss F’s final EHC Plan. The mediation service acknowledged Mr X’s request in early March 2023. Mr X completed the relevant paperwork and returned it to the mediation service by the end of March 2023.
24. Towards the end of April 2023 Mr X complained to the Council about its handling of F’s EHC Plan since the annual review. Mr X says he did not receive a copy of the EHC Plan until February which was over the statutory timescales and received no communication regarding his request for the EHC needs re-assessment. Mr X said he completed all of the mediation paperwork in good time but had since received notification that mediation would not be progressed as he had now missed the two month deadline. Mr X asked the Council to consider an appropriate way forward to try and resolve the matter as he was unhappy with F’s named placement at School A.
25. Mr X did not receive a response to his complaint and so F began attending School A in September 2023.
26. In early October 2023 the Council contacted Mr X about his complaint acknowledging it had failed to respond due to an oversight. It apologised for its lack of communication with Mr X. The Council said it did not receive any information from the mediation service or an appeal against the naming of School A. It said it understood F was enjoying School A and that funding was in place to meet her needs. The Council referred Mr X to us if he remained unhappy.
27. Remaining unhappy, Mr X complained to us.

My findings

28. The annual review paperwork clearly shows an action to progress Mr X’s request for a EHC needs re-assessment for F. There is no evidence the Council sent Mr X a decision letter and it failed to respond to Mr X’s complaint about it. This was fault and caused Mr X distress and uncertainty.
29. After receiving F’s amended plan Mr X requested mediation, however the Council said it did not receive a notification of this from the mediation service. This means the time limit for mediation and for Mr X to appeal to the SEND tribunal ran out. It appears the mediation service did not send the notification to the Council and therefore I cannot hold the Council at fault.
30. However, Mr X complained to the Council in April 2023. The Council did not respond to his complaint until six months later which is a significant delay and is fault. Had the Council responded in line with its policy, Mr X would have become aware much earlier that the Council did not receive the mediation notification and could have taken action by making a late appeal to the SEND tribunal.
31. Only the SEND tribunal can direct changes to an EHC Plan. If Mr X remains unhappy with either the content of the EHC Plan or School A then it is open for him to raise this at the next annual review meeting which is due around the date of this decision statement.

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Agreed action

32. Within one month of the final decision the Council agreed to take the following action:
1. Write to Mr X, apologise and pay him £200 to acknowledge the distress and uncertainty caused by the delay in responding to his complaint and for failing to respond to his request for an EHC needs re-assessment.
2. Consider whether to carry out an EHC needs re-assessment for F and write to Mr X with its decision and provide his right of appeal to the SEND tribunal should he disagree.
33. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman