Summary: the Council failed to issue a decision following three annual reviews for an EHC plan. That leaves Mr B with uncertainty about whether the Council would have arranged a new school placement for his son and included therapy in the EHC plan. The Council also delayed responding to a complaint. An apology, payment to Mr B, agreement to issue an EHC plan and putting in place a procedure to manage reviews is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• failed to identify a new school placement for his son despite agreeing to do so;
• failed to make a decision about whether to include therapy in his son’s education, health and care plan (EHC plan) which denied him a right of appeal; and
• delayed responding to his complaint.
2. Mr B says the failures caused him and his family distress and have had a significant impact on his son.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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 an injustice, 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. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mr B and the organisation 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

What should have happened

9. A child with special educational needs may have an EHC plan setting out the child's needs and what arrangements should be made to meet them. The EHC plan is set out in sections.
10. The Special Educational Needs and Disability Code of Practice (code of practice) sets out the process for carrying out EHC assessments, producing EHC plans and reviewing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• within four weeks of a review meeting, a council must notify the child's parent of its decision to maintain, amend or discontinue the EHC plan
• where a council proposes to amend an EHC plan, it should start the process of amendment without delay. It must send the child's parent or the young person a copy of the existing plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes;
• following comments from the child's parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents.
11. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child's EHC plan. The right of appeal is only engaged when the final amended plan is issued. If the council decides not to amend the plan it must notify the child's parent of their right to appeal that decision and the time limit for doing so.
12. The Council’s complaints procedure says it will respond to stage one and stage two complaints within 20 working days. It says if the Council cannot meet those timescales it will tell the person that has complained.

What happened – EHC plan

13. Mr B’s son has special educational needs (SEN) and has an EHC plan. Mr B’s son began struggling at school in 2021 and Mr B asked the Council for a more specialist educational provision. As a more therapeutic placement could not be found Mr B’s son continued to attend the same school and received therapy once a week. That therapy was funded separately to the EHC plan with an intention to include the therapy in the EHC plan at a later date.
14. In July 2022 the Council held an annual review for the EHC plan. Mr B asked the Council to include therapy in his son’s EHC plan at that review. The Council did not issue a decision letter following the annual review.
15. Mr B contacted the Council on 1 November 2022 to raise concerns about the lack of information about his request in 2021 for a new school for his son. Mr B pointed out the Council had not responded to his request for therapy support to be included in his son’s EHC plan.
16. The school Mr B’s son was attending contacted the Council in November 2022 about the annual review. The school pointed out Mr B had asked for a change of school placement.
17. Mr B provided the Council with further evidence in December 2022 which showed his son still needed therapy.
18. The Council completed an early annual review for the EHC plan in February 2023. At that review Mr B said he did not want a new school placement unless a placement could be identified which was also suitable post 16. Mr B asked for therapy to be included in the EHC plan.
19. The Council sent Mr B an amendment notice in March 2023 which confirmed it intended to amend the EHC plan. The Council accepts it failed to amend the EHC plan after that.
20. An NHS professional contacted the Council on multiple occasions between May 2023 and October 2023 to find out what was happening with funding for therapy for Mr B’s son. There is no evidence the Council responded until 10 October 2023 when it said a further assessment from child and adolescent mental health services (CAMHS) was required.
21. The Council held an annual review for the EHC plan in October 2023 to discuss the move to post-16 education in September 2024. Mr B again asked for therapy to be included in the EHC plan. The Council intended to issue a final EHC plan by the end of March 2024.

What happened - complaint to the Council

22. Mr B put in a complaint to the Council on 15 November 2022. The Council acknowledged receipt of the complaint and said it aimed to respond within 20 working days and if it took longer it would keep Mr B informed.
23. Mr B chased the Council in December 2022, January 2023 and February 2023. The Council responded to the complaint on 6 March 2023 and apologised for the delay. The Council said it had recommended the school make another referral to CAMHS for the therapy. The Council said the annual review from February 2023 would go to the independent placement panel for a decision about funding therapy.
24. Mr B asked the Council to take the complaint to the next stage of the complaints procedure as he was not happy with the response on 6 March. The Council acknowledged that request on 9 March and said it aimed to respond within 20 working days. The Council said if it could not meet that timescale it would keep Mr B informed.
25. Mr B chased the Council in May, June and July 2023. On 31 July the Council wrote to Mr B to apologise for the ongoing delay dealing with his complaint.
26. The Council responded to the complaint on 12 December 2023 and apologised for the delay. The Council also apologised the stage one complaint response had not dealt with all the areas of complaint. The Council upheld the complaint but did not identify any remedy other than an apology.
27. The Council says because of a previous Ombudsman investigation it has now recruited a dedicated team of SEN professionals to respond to the backlog of complaints. In its response to my enquiry the Council offered Mr B £300 to recognise his frustration and time and trouble he had to go to due to delays in the complaint process.

Analysis

28. Mr B says the Council failed to identify a new school placement for his son despite agreeing to do so in 2021. The Ombudsman will not normally consider a complaint about what happened more than 12 months ago. I see no reason why Mr B could not have complained to the Ombudsman in 2021. I am therefore not exercising the Ombudsman’s discretion to go back to 2021. I am, however, exercising the Ombudsman’s discretion to go back to July 2022 when the Council carried out a review of the EHC plan. That is because I am satisfied Mr B put in a complaint to the Council in 2022 and due to Council delays considering the complaint Mr B did not complete the complaints procedure until December 2023.
29. The Council accepts it failed to follow the right process for the July 2022 and February 2023 EHC plan reviews. For the first review the Council failed to issue a decision. For the second review the Council issued an amendment notice but failed to tell Mr B whether the changes to the EHC plan warranted a new school placement. The Council also accepts it failed to issue a final EHC plan. As of the date of the Council’s response to my enquiry it has still not done that, despite completing a further review in October 2023. Failure to follow the code of practice and issue decisions and EHC plans in this case is fault.
30. As the Council has still not issued an EHC plan I cannot say whether it would have agreed to seek a new school placement for Mr B’s son in 2022 or 2023. Nor is it likely I can reach a safe conclusion about that when the Council issues a new EHC plan because Mr B’s son is due to transition to post-16 education in September 2024 and will need a different placement. I therefore consider Mr B’s injustice is limited to his distress, uncertainty about whether the situation would have been different and the time and trouble he has had to go to pursuing his complaint. Mr B has also missed out on his right of appeal.
31. The failure to follow the right process when completing the annual reviews also means the Council failed to consider whether to amend the EHC plan to include the therapy Mr B asked for. I cannot speculate about whether the Council would have included therapy in the EHC plan. I also note Mr B’s son has continued to receive therapy, albeit at a lower level than recommended, funded from a different source. However, I am satisfied due to the failure to issue a revised EHC plan Mr B is left with uncertainty and has missed out on his right of appeal.
32. I consider a suitable remedy for the distress and uncertainty Mr B experienced due to the Council’s failure to follow the right process would be for the Council to apologise and pay him £600. I also recommended the Council ensure it puts in place a process to ensure annual reviews are followed up on and that it prioritises issuing a final EHC plan to give Mr B his right of appeal. I note the Council’s intention is to do that by 31 March 2024. The Council has agreed to my recommendations.
33. The Council also accepts it significantly delayed dealing with Mr B’s complaint at both stages one and stage two. That is fault. The Council accepts it failed to respond to numerous contacts from Mr B chasing a response to his complaint. That is also fault. The Council has offered £300 to reflect the time and trouble Mr B had to go to.
34. I consider that a satisfactory remedy for this part of the complaint. I consider a time and trouble payment appropriate in this case due to the significant delays that occurred during the complaints process and the amount of time and trouble Mr B had to go to chasing responses. This means the total financial remedy recommended in this case is £900.
35. I do not make any recommendation for procedural changes to address the delays dealing with the complaint. That is because I am satisfied because of a previous report issued by the Ombudsman the Council has put in place an action plan to address the backlog of complaints.

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Agreed action

36. Within one month of my decision the Council should:
• apologise to Mr B for the distress, uncertainty and time and trouble he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr B £900;
• set up a process to manage annual reviews for EHC plans to ensure they are followed up on once a review has been completed.
37. The Council should prioritise issuing an EHC plan to enable Mr B to appeal should he wish to do so.

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Final decision

38. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman