Summary: The Council was at fault for delays in issuing an Education, Health, and Care Plan, for Mrs X’s son. That fault caused Mrs X an injustice because she was left with avoidable distress and inconvenience in following up as to what the Council were doing, as well has having a delayed right of appeal. It also has left Mrs X with uncertainty about what special education provision her son may also have missed out on because of delays. The Council have agreed to remedy Mrs X’s injustice in line with my recommendation.

The complaint

1. Mrs X complained the Council delayed issuing an Education, Health, and Care (EHC) Plan for her son (H), after a review in 2023. Mrs X said this meant the special education provision (SEP) her son would have been due, did not start until later than it could have done.
2. Mrs X said this impacted on her son’s mental health and means he has fallen behind in his education.

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The Ombudsman’s role and powers

3. 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)
4. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. 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 not investigated

8. Because of the legislation I have highlighted at paragraph 4, I cannot consider Mrs X’s complaint about lack of education provision in the period after she appealed to the SEND Tribunal in December.

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How I considered this complaint

9. I spoke to Mrs X and considered the information she provided.
10. I considered the Council’s comments and the documents it provided.
11. I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

EHC Plan 

13. 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

14. 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.
15. 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)
16. 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.
17. 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.
18. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

EHC Plan reviews and case law

19. Recent caselaw says councils must, from March 2022, send the parent or young person the final amended EHC plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. R (L, M, and P) v Devon County Council [2022] EWHC 493

What happened

20. The Council first issued H a final EHC Plan in 2021, and prior to 2023, Mrs X educated him at home. Because of this he was not on a school roll and the Council recorded he was being ‘electively home educated’ (EHE).
21. In December 2022, Mrs X tried to speak to the Council several times about trying to find a specialist placement for H, as she wanted to come off EHE. The Council did not initially respond to these messages.
22. In late May 2023, the Council held an annual review of H’s EHC Plan. At this review Mrs X asked for him to come off EHE and for the Council to place him at a specialist school. Mrs X asked the Council to provide provision while they were waiting for a placement. The review meeting notes recommend the Council amend H’s EHC Plan.
23. In early August, the Council told Mrs X it agreed to amend H’s EHC Plan. In October, the Council carried out a series of assessments on H. This included involvement of an education psychologist to determine his special educational needs and in early November it issued a draft EHC Plan.
24. In mid-December, the Council issued a final EHC Plan. In section I (Educational Placement), it said the type of placement would be a maintained specialist school, but the Council did not name the setting.
25. Mrs X appealed the Council’s decision not to name a specific setting.

My findings

26. Mrs X asked the Council to find a specialist placement at H’s annual review in May. Because the Council agreed to amend H’s EHC Plan, to comply with the statutory guidance it should have issued a final EHC Plan by mid-August.
27. The Council did not do this until mid-December which was around four months late. That is fault and it caused Mrs X an injustice because of avoidable distress and the inconvenience of following up with the Council about H’s EHC Plan. It also delayed her right to appeal the Council’s decision.
28. Mrs X said the Council’s delays meant any SEP her son could have had, was also delayed and he therefore missed out on all the SEP he was due. If the Council had complied with the statutory requirements, it should have finalised H’s EHC Plan, which would include SEP, ready for the start of the academic term in September. However, on balance of the evidence, I cannot say what SEP or placement the Council would have agreed, or whether Mrs X would have taken this up.
29. The impact of these delays has caused Mrs X a further injustice because of her avoidable distress and uncertainty about her son’s missed SEP.

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Agreed action

30. The Council have agreed that, within four weeks of the date of my decision, it will pay Mrs X £500, as a symbolic payment to remedy the injustices I have highlighted.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation, with a finding of fault as highlighted at paragraph 27. That fault caused Mrs X an injustice and the Council have agreed it will remedy that injustice in line with my recommendation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman