Summary: Ms X complained the Council delayed the education, health and care plan process for her child. The Council acknowledged it failed to adhere to the statutory timescales. The Council is at fault and this caused distress and uncertainty to Ms X and her child was without educational provision for nearly seven months. The Council has agreed to our recommendations to remedy this injustice.

The complaint

1. The complainant, Ms X, complains the Council delayed in amending and producing a final education, health and care plan for her child, Z, following an annual review.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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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What I have and have not investigated

7. I have not investigated matters after 15 February 2024 because these are out of the Ombudsman’s jurisdiction. This is because we cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers.

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How I considered this complaint

8. I considered Ms X’s complaint and the information she provided.
9. I considered the information the Council provided in response to my enquiries.
10. Ms X and the Council were given the opportunity to comment on a draft of this decision. I considered Ms X’s comments and the Council’s before making this final decision.

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What I found

Education, health and care (EHC) Plan

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 SEND 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 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.
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. 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.
15. For young people moving between key phases of education the Council must review and amend their EHC plan by 15 February in the calendar year of the transfer. This is to allow for planning and commissioning support and provision at the new school.
16. 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)
17. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

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What happened

18. Ms X has a child, Z, who has an EHC Plan maintained by the Council. Z attended a mainstream primary school. Ms X was concerned that a mainstream secondary would not be appropriate for Z due to his SEN. She requested the Council look at a change in placement.
19. In September 2023, Z began his final year of primary school.
20. On 16 May 2023, an annual review of Z’s EHC Plan was held and this also included a phase transfer review.
21. On 21 September 2023, the Council notified Ms X of its decision to amend Z’s EHC Plan.
22. On 15 February 2024, the Council issued the final EHC Plan and named School 2, a mainstream secondary school, for Z to start from September 2024.
23. Ms X was unhappy the Council named a mainstream secondary school and she used her right to appeal to the SEND Tribunal.

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Analysis

Phase transfer reviews

24. The guidance requires Councils to review and amend EHC Plans for children moving between key phases of education by 15 February in the calendar year of the transfer. I have not found the Council at fault for this because it did review and amend Z’s EHC Plan by 15 February 2024.

Annual review of Z’s EHC Plan

25. A review of Z’s EHC Plan was held in May 2023. The Council failed to notify Ms X of its decision to amend the EHC Plan and what the proposed changes were, within four weeks of the annual review meeting. This is fault.
26. The Council should have issued a final amended EHC Plan for Z by 8 August 2023. The Council’s failure to issue the final EHC Plan within statutory timescales is fault. The delay of 27 weeks caused a significant injustice to Ms X and to Z because it delayed her appeal rights, caused uncertainty and a significant amount of time was spent on chasing the Council for updates.
27. Ms X’s distress and frustration with the Council was exacerbated by the Council’s failure to ensure Z’s case was progressing in the absence of a caseworker. This is further fault. The Council has accepted that changes in the allocated officers impacted on the service Ms X received.
28. The Council appears to have a high turnover of caseworkers in its SEN department and the evidence shows that parents and children are left to ‘sit tight’ and wait for another caseworker. The Council does not appear to have a system in place to progress cases until a permanent caseworker is found. This leaves parents with a great degree of uncertainty about their child’s education and in this case where the Council decided to amend Z’s EHC Plan, it left Z with a 27-week period where his needs were unmet. This is a significant injustice to Z and I have not seen any evidence the Council has appropriately remedied it.
29. In making my recommendations to remedy the injustice to Ms X and to Z, I have considered their individual circumstances and our guidance on remedies. These factors include, but are not limited to, Z’s SEN, the provision contained in his final EHC Plan that he should have been receiving 27 weeks earlier if the plan was issued in accordance with statutory timescales, the impact of the loss of provision on Z, Ms X’s delayed right of appeal, the uncertainty caused by the delays and lack of communication when Ms X was left without a caseworker.

Ms X’s disagreement about the placement named in Z’s EHC Plan

30. Ms X is unhappy with the Council’s decision to name a mainstream secondary school on Z’s EHC Plan and she has used her right to appeal to the SEND Tribunal. This is the appropriate way for Ms X to have her concerns determined. I cannot consider matters which can, and have been, considered by a Tribunal.

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Agreed action

31. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise to Ms X for the identified faults and injustice caused to her and Z;
• Pay Ms X £700 for the distress, uncertainty and frustration caused through delays in production of Z’s EHC Plan for nearly seven months outside the statutory timescales.
• Pay Ms X £500 in recognition of the impact of the lost special educational provision on Z.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. The Council is at fault and it has agreed to our recommendations to remedy the injustice caused. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman