Summary: Mr X complained on behalf of his daughter, Mrs Y. He complains about the delays in the education, health and care plan process, poor communication and lack of support. We find the Council was at fault for delays in the process and poor communication. This caused significant distress to Mrs Y and Mr X spent unnecessary time and trouble contacting the Council. The Council has agreed to make several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Mr X, complains on behalf of his daughter, Mrs Y. He complains about the delays in the education, health and care plan process, poor communication and lack of support.

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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. 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)
4. 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.
5. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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)

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What I have and have not investigated

8. I have investigated whether there were any delays in the process, lack of communication and whether there was a lack of support provided.
9. I have not investigated the Council’s decision to name school X or any potential lack of education. This is because Mrs Y had the right of appeal which she used. As stated in paragraphs 3, 4 and 5 this is outside our jurisdiction.

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How I considered this complaint

10. I spoke with Mr X about his complaint. I considered all the information provided by Mr X and the Council.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plan

12. 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

13. 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.
14. 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) 
15. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
16. 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.

The Council’s complaints policy

17. The Council’s policy states it will response at stage one and two of its process within 25 working days.

Summary of the key events

18. Mrs Y’s son, B, has an EHC Plan. An annual review was held towards the end of September 2022. It’s noted the Council received the review documents in early October 2022.
19. B’s school contacted the Council in January 2023. They asked for an update as they not heard anything since the annual review was held.
20. In the following month, the Council sent Mrs Y its decision to amend the EHC Plan letter and sent her a copy of the draft plan. Within the letter, it detailed who she could contact for help and support.
21. The Council consulted with school X in February 2023.
22. Mrs Y told the Council which schools she preferred. This included school Y.
23. In late March 2023, Mr X asked the Council for an update on what school it would name in the EHC Plan. The Council said it would arrange a meeting with school X who had highlighted some concerns and said it had issued a consultation to school Y.
24. In April 2023, school Y told the Council they could not meet B’s needs.
25. The Council tried to contact Mr X in April and again in May 2023. It asked when he was free for a phone call and asked if he was free to meet with school X. This was to discuss B’s needs and decide what placement he would attend.
26. Mr X complained to the Council on 8 May 2023. He said:
• the Council had failed to follow the law and said his emails and calls had been ignored;
• he had no knowledge of how a review meeting works and later found this information on the Council’s website. But he said no help was offered to him;
• at the September review meeting, Mrs Y stated she wanted school Y to be named;
• there had been delays in the process after the annual review; and
• he was dyslexic and would often have to look up the meaning to words used in the Council’s letters.
27. Mr X contacted the Council two days later and asked for confirmation it had received his complaint. The Council responded the same day and explained it had been received.
28. In June 2023, Mr X said school X could not meet B’s needs. But the Council said both school X and school Y had said they were unable to meet needs. It said it would go back to school Y to see what they could offer and said it was having discussions with school X.
29. Mr X told the Council that after no response to his complaint, he had requested it be escalated to stage two. He said he had phoned the Council twice and sent emails.
30. The Council acknowledged the delays and apologised. It asked if Mr X would be happy to close the complaint to allow time for some actions to be carried out. This was because the manager had contacted Mr X and was in contact with the case worker in order to progress matters. It said, if necessary, the Council could then re-open the complaint. Mr X agreed to put the complaint on hold.
31. The Council updated Mr X in the same month. It said school Y said it still could not meet B’s needs. But stated school X could. It said it would finalise the EHC Plan naming school X. The EHC Plan was issued on the 21 June 2023.
32. Mr X asked for an update on his stage two complaint in the same month. The Council agreed to look into it.
33. The Council responded to the complaint in February 2024. It said:
• Mrs Y’s preferred school was considered. But said upon assessing B’s needs, its panel deemed that his cognitive ability was too high for him to benefit from attending school Y;
• some of the terms used in letters cannot be changed as they are official legal terms which need to be documented. But it said if at any point Mr X was finding it difficult to read, he was welcome to ring the team who could help; and
• the case was currently going through the Tribunal process and consultations were continuing.

Analysis- was there fault by the Council causing injustice?

34. The annual review was held in September 2022 and the Council received the paperwork in early October 2022. The Council issued a draft decision in February 2023, followed by the final plan in June 2023. Guidance states councils must send any proposed amendments within four weeks of the date of the review meeting. Therefore, there is significant delay. This is fault. This caused significant distress to Mrs Y and delayed her right of appeal.
35. Mr X said the Council’s communication has been poor. From the evidence seen, the Council did fail to respond to Mr X’s complaints within its complaints policy timescales. In June 2023, Mr X agreed to put his complaint on hold. But Mr X contacted the Council a few weeks later requesting a response to his complaint. The Council agreed to chase this up. But it did not provide a complaints response until February 2024. This is fault. This meant Mr X spent unnecessary time and trouble in contacting the Council.
36. Mr X said there had been a lack of support provided by the Council. In his complaint to the Council, he said he was dyslexic and would often need to look up the meaning of words used in the Council’s letter. In response the Council explained these were official legal terms. It advised Mr X to contact the team if he needed support. This is an appropriate response, and we could not criticise the Council for this.
37. I have not seen any evidence to suggest Mrs Y and Mr X asked the Council for any support. I have also not seen any evidence to suggest they made the Council aware if they were struggling to understand the process. We therefore could not criticise the Council if it was not aware. But I note in February 2023 when the Council sent Mrs Y the draft EHC Plan, it made her aware of what support was available.

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Agreed action

38. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Mrs Y and Mr X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Mrs Y £200 in recognition of the distress caused to her by the fault which led to her delayed appeal rights;
• pay Mr X £150 in recognition of the unnecessary time and trouble he spent contacting the Council.
39. Within two months, the Council should issue written reminders to relevant staff to ensure they are aware of:
• the timescales set out in the Council’s complaints policy; and
• the guidance which states councils must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan within four weeks of the review meeting.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. There was fault by the Council. The actions the Council has agreed to remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman