Summary: the Council took too long to amend Ms M’s son B’s Education, Health and Care (EHC) Plan following a review. We have recommended a symbolic payment to acknowledge the impact of the delay. Ms M disagreed with the amended Plan and appealed to the Tribunal. We cannot investigate complaints about matters someone has appealed to the Tribunal.

The complaint

1. Ms M complains about delay amending her son B’s Education, Health and Care (EHC) Plan.

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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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.
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 have considered information provided by Ms M and the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

8. Ms M’s son B has an Education, Health and Care (EHC) Plan maintained by the Council.
9. In April 2023, Ms M asked the Council to hold an early review of B’s Plan. She was unhappy with B’s school and concerned about his progress.
10. The school held an early annual review meeting on 26 May 2023.
11. Ms M did not send B back to school in September 2023 because she believed the Council was about to amend his Plan and thought it would be less disruptive if he did not return to the school after the summer break.
12. The Council agreed to amend B’s EHC Plan on 12 September 2023 and notified Ms M on 21 September 2023.
13. Ms M wanted the Council to arrange education other than at school (EOTAS) for B. The Council issued a final amended Plan on 7 December 2023 which said B would remain at his current school.
14. Unhappy with the Plan, Ms M decided to appeal to the Tribunal and began mediation with the Council. A Tribunal hearing is scheduled for February 2025.
15. At a mediation meeting on 31 January 2024, the Council agreed to undertake a fresh Educational Psychology assessment to inform a further review of B’s Plan.
16. In May 2024, B’s school gave notice that it was ending his placement. The Council arranged alternative provision while it sought an alternative school.
17. Ms M complained to the Council and the Council responded at all three stages of its complaints process. The Council upheld Ms M’s complaints and apologised for its mistakes. The Council offered a symbolic payment of £150. Unhappy with the outcome, Ms M complained to us.

Reviewing Education, Health and Care Plans

18. The procedure for reviewing and amending an Education, Health and Care Plan is set out in legislation and Government guidance.
19. The process begins with a review meeting which is usually organised by the school on behalf of the Council.
20. Following the meeting, the school must send a report to the Council and the Council must decide within four weeks whether it intends to make changes to the child’s Plan.
21. If it decides to amend the Plan, the Council must notify the parents of the changes it intends to make and invite them to request a particular school. A recent court judgement confirmed this must happen within 4 weeks of the review meeting.
22. The Council must issue the final Plan as quickly as possible and within eight weeks of sending the draft Plan.
23. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision in their child’s Education, Health and Care Plan.

Consideration

24. Having decided to amend B’s EHC Plan following the annual review meeting on 26 May 2023, the Council should have issued a final amended Plan by 18 August 2023. The Council issued a final Plan on 7 December 2023. This was almost 16 weeks late.
25. Ms M sent me copies of her correspondence with the Council which show the considerable effort she made to try and secure a timely outcome.
26. The Council did not meet the deadlines set out in regulations and guidance following the review meeting. This is fault.
27. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
28. Ms M and the Council did not agree on arrangements for B’s education following the review meeting and Ms M has used her right of appeal to the Tribunal. Delay by the Council delayed Ms M’s right of appeal. This is an injustice.
29. I will recommend a remedy for the injustice caused by the Council’s delay amending B’s EHC Plan. My recommendations are at the end of this statement.
30. B did not attend school from the beginning of term in September 2023 because Ms M wanted the Council to make alternative arrangements and expected the Council to amend his Plan. She decided it would be less disruptive if B did not return to school. Delay by the Council had an impact on B; he was out of school until December. However, a school place remained available for him which the Council said was suitable. In these circumstances, I cannot say B’s absence from school or lack of education was the result of fault by the Council.
31. I understand the school place is no longer available and the Council has arranged alternative provision. I cannot consider B’s education after 7 December 2023 because Ms M has appealed sections B (special educational needs), F (special educational provision) and I (placement) to the Tribunal. The law prevents me from considering matters which are the subject of an appeal to the Tribunal.

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Agreed action

32. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Ms M and B, we may recommend the Council makes a symbolic payment.
33. Delay by the Council following the review meeting delayed Ms M’s right of appeal to the Tribunal. The Tribunal will ultimately decide questions about B’s education. It is not possible to quantify the impact of the delay, so I recommend the Council makes a symbolic payment of £500 to recognise the impact. I recommend the Council makes the payment within six weeks of my final decision.
34. The Council accepted my recommendations. The Council should provide us with evidence it has complied with the above actions.
35. We can also make recommendations to ensure similar faults do not happen in the future. We recently investigated another complaint about delays following an annual review and made recommendations. The Council told us about the improvements it has made. I will not, therefore, make further recommendations.

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Final decision

36. I have ended my investigation as the Council accepts my recommendations.

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Investigator's decision on behalf of the Ombudsman