Summary: the Council failed to issue revised education, health and care plans following two reviews and delayed issuing an education, health and care plan following a third review. The Council also delayed dealing with Mrs X’s request to educate her son out of cohort. An apology, payment to Mrs X, introduction of a process to manage reviews and guidance to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council:
• failed to issue a revised education, health and care plan (EHC plan) following annual reviews in 2021 and 2022;
• delayed issuing a revised EHC plan following the 2023 review;
• delayed confirming its agreement to educate her son out of cohort; and
• changed the officer working on her son’s case without telling her.
2. Mrs X says as a result her son’s needs have not been met and she has had to spend time trying to resolve matters.

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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 Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mrs X 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 School admissions code (the code) refers to admission of children outside their normal age group. It says admission authorities must make decisions on the basis of the circumstances of each case and in the best interests of the child concerned. This will include taking account of the parent’s views, information about the child’s academic, social, and emotional development, where relevant, their medical history and the views of a medical professional, whether they have previously been educated out of their normal age group and whether they may naturally have fallen into a lower age group if it were not for being born prematurely. They must also take into account the views of the head teacher of the school concerned. When informing a parent of their decision on the year group the child should be admitted to, the admission authority must set out clearly the reasons for their decision.

What happened

13. Mrs X’s son has special educational needs (SEN), attends a specialist school and has an EHC plan. An annual review of that EHC plan took place on 30 June 2021. The Council wrote to Mrs X on 22 July 2021 to tell her it intended to make changes to the EHC plan. The Council told Mrs X it would make those changes within six weeks. There is no evidence the Council wrote to Mrs X again about the 2021 review.
14. In April 2022 Mrs X asked the Council to educate her son out of cohort. The school provided the Council with support for that proposal, outlining the benefits of Mrs X’s son repeating the year.
15. An annual review of the EHC plan took place in July 2022.
16. Mrs X chased the Council in October 2022 for a decision on educating her son out of cohort. The school then chased the Council for a decision in January 2023.
17. In April 2023 the Council issued a proposed amended EHC plan. The Council did not issue a final EHC plan.
18. An annual review of the EHC plan took place in June 2023. The Council says it did not receive the annual review paperwork from the school until the end of August. The Council wrote to Mrs X in December 2023 to tell her it intended to amend the EHC plan. The Council then issued a final EHC plan in January 2024.
19. The Council says following an Ofsted report it has initiated a comprehensive improvement plan which involves a substantial investment to improve the capacity of the SEN service. As part of that the Council has recruited 80 staff to reduce the caseloads for officers and aims to improve the timeliness of annual reviews.

Analysis

20. I have exercised the Ombudsman’s discretion to investigate how the Council dealt with the 2021 and 2022 annual reviews even though Mrs X did not complain within 12 months. That is because I am satisfied Mrs X believed the Council was dealing with matters.
21. Mrs X says the Council failed to issue a revised EHC plan following annual reviews in 2021 and 2022. The Council accepts it failed to issue revised EHC plans following those reviews. I am particularly concerned that in this case the Council told Mrs X about its intention to amend the EHC plan following the review in June 2021 but then did nothing with it. I am also concerned the Council did not tell Mrs X whether it intended to amend the EHC plan following the 2022 review. The Council then delayed issuing an amended EHC plan until April 2023. Failure to follow the code of practice is fault and means Mrs X missed out on her right of appeal.
22. I am also concerned there was a further delay issuing an amended EHC plan following the 2023 review. Although that review took place in June 2023 the Council did not issue an amended final EHC plan until January 2024. That is outside the timescales set out in the code of practice and is fault. That means Mrs X’s right of appeal was delayed.
23. It is clear though the provision in the amended EHC plan issued in January 2024 is largely the same with only minimal changes to speech and language therapy and play opportunities. The main changes are to the description of Mrs X’s son’s special educational needs and the outcomes. In those circumstances it is unlikely Mrs X’s son missed out on significant provision due to the delays issuing the final EHC plan. I therefore consider Mrs X’s injustice is limited to her frustration and the time and trouble she has had to go to pursuing the Council.
24. To remedy Mrs X’s injustice I recommended the Council apologise and pay her £300. I also recommended the Council provide evidence to the Ombudsman of its plans to improve the timeliness of reviews of EHC plans following the Ofsted review. The Council has agreed to my recommendations.
25. Mrs X says the Council delayed confirming its agreement to educate her son out of cohort. The evidence I have seen satisfies me Mrs X put in her request for her son to be educated out of cohort in April 2022. I am also satisfied the school attended by Mrs X’s son provided detailed information to the Council in support of Mrs X’s request. The Council says because specialist schools operate differently it interpreted the request as an enquiry for additional funding. The Council also says it needed to seek information from the annual review so it could have more information about Mrs X’s son’s progress and presenting needs before making a decision.
26. While I understand the Council’s point, the school attended by Mrs X’s son had provided the Council with detailed information supporting the request for him to be educated out of cohort. In addition, an annual review took place in June 2022 which, as I have said, was not dealt with properly. I am therefore satisfied the Council should have had sufficient information to make a decision before the start of the new school year in September 2022. Failure to make a decision is therefore fault. I am particularly concerned about that given both Mrs X and the school chased the Council in October 2022.
27. This could have caused Mrs X’s son a significant injustice if he had continued to be educated in the same cohort. However, I note the school did not wait for the Council’s confirmation and instead moved Mrs X’s son into a different cohort where he has been thriving. That decision prevented any specific injustice to Mrs X’s son. In those circumstances I recommended the Council apologise to Mrs X. I also recommended the Council put in place guidance for officers dealing with these requests. That is so they know the process to follow when a parent asks for their child to be educated out of cohort where that child has already begun education. The Council has agreed to my recommendations.
28. Mrs X says the Council changed the officer working on her son’s case without telling her. The Council accepts the officer dealing with Mrs X’s son moved roles in April 2022 which meant another officer took over. The Council says because it deals with around 12,000 EHC plans it is not always possible to tell parents when an officer moves role. I recognise in those circumstances it would not always be possible for the Council to tell a parent in advance of an officer moving roles.
29. I note the Council accepts though it is good practice for a new officer to introduce themselves to parents when correspondence is received on a case. The documentary evidence shows that at least by October 2022 Mrs X knew a new officer was dealing with her case given she emailed that officer when chasing the Council. In those circumstances I do not consider this warrants a finding of fault. I would, however, expect the Council to be more proactive in contacting parents when an officer leaves the Council’s employment given the parent would not then have any contact details for an alternative officer.

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Agreed action

30. Within one month of my decision the Council should:
• apologise to Mrs X for the uncertainty and frustration she 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 Mrs X £300;
• provide evidence to the Ombudsman of the Council’s plans to improve the timeliness of annual reviews of EHC plans following the Ofsted review; and
• provide guidance to officers dealing with requests for a child to be educated out of cohort so they know the process to follow where the child has already begun education.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman