Summary: Mr X complained the Council failed to meet the statutory timescales in reviewing and producing his child’s Education, Health and Care Plan. Mr X also complained about the way in which the Council handled his complaint. We found fault with the Council’s delays in handling both the Education, Health and Care Plan review and Mr X’s complaint. The Council offered £200 for it’s poor complaint handling and £300 for the delays in reviewing the Education, Health and Care Plan. This was a suitable symbolic gesture with an apology for the injustice caused by the Council’s fault.

The complaint

1. Mr X complained the Council failed to meet statutory timescales in producing and reviewing his child’s Education, Health and Care Plan.
2. Mr X also complained the Council failed to handle his complaint in line with its complaints procedure. Mr X says the Council took long periods of time to respond to his complaint and communication, when provided, was of poor quality.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. 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)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended).
6. 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.
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).
8. 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

9. The Ombudsman cannot normally investigate matters a person was aware of more than 12 months before bringing this to the Ombudsman’s attention.
10. Mr X brought his complaint to the Ombudsman in January 2024 about delays in the Education, Health and Care Plan review process in 2022. This means, Mr X’s complaint falls outside the normal 12-month time period for our investigation.
11. However, the Council delayed in handling Mr X’s complaint and only confirmed in May 2023 that it would not issue a Stage 2 complaint response. This delay, combined with the Council providing a suitable offer in line with the Ombudsman’s guidance on remedies as part of our investigation, means we can exercise our discretion to investigate Mr X’s complaint.
12. Had the Council confirmed it would not provide a Stage 2 complaint response sooner, such as at the end of 2022, it would not have been proper to exercise our discretion to investigate Mr X’s complaint.

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How I considered this complaint

13. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
14. Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Education Health and Care Plans

Rules and Regulations

15. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
16. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
17. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
18. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
19. 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. (s20 (10) Special Educational Needs and Disability Regulations 2014)
20. Where a 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
21. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
22. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the final 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. (s22 (3) & (4) SEND Regulations 2014)
23. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
24. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

What happened

25. Mr X’s child, who I shall refer to as Y, has held an EHC Plan since 19 August 2020.
26. On 18 January 2022, the Council held an annual review for Y’s EHC Plan.
27. The Council sent a letter to Mr X on 16 February 2022 telling him it would be amending Y’s EHC Plan following the annual review meeting.
28. On 20 October 2022, the Council issued a Final EHC Plan for Y.
29. Mr X appealed the Final EHC Plan to the SEND Tribunal on 23 December 2022 because of the named educational placement in Section I.
30. The Council held an annual review for Y’s EHC Plan on 24 January 2023.
31. The Council requested a Consent Order to be issued by the SEND Tribunal.
32. On 10 March 2023, the Council sent a letter to Mr X’s advising of its decision to amend Y’s EHC Plan.
33. On 6 April 2023, the SEND Tribunal issued a Consent Order telling the Council to name a specific placement in Section I of Y’s EHC Plan. The Council issued the amended EHC Plan on the same date.

Analysis

34. The Council held an annual review meeting for Y’s EHC Plan on 18 January 2022 and sent a decision to amend letter on 16 February 2022. The Council has acted within the statutory timescales for completing this process and I do not find fault.
35. Following the Council sending its decision to amend letter on 16 February 2022, it had eight weeks to issue an amended Final EHC Plan. This meant the Council had until 12 April 2022 to issue the amended Final EHC Plan. The Council failed to meet this timescale and instead only issued the amended Final EHC Plan on 20 October 2022. This was a delay of 6 months and one week outside the statutory timescales and was fault.
36. This delay caused Mr X frustration and uncertainty about the content of the EHC Plan and delayed his appeal rights to the SEND Tribunal.
37. The Council held an annual review meeting for Y’s EHC Plan on 24 January 2023. The Council only issued the notification to amend on 10 March 2023, this was outside the four-week timescale and was fault.
38. While the Council delayed in issuing the notification to amend letter, it had 12 weeks from 24 January 2023 to issue an amended Final EHC Plan. This meant the deadline for issuing the Final EHC Plan was 18 April 2023. The Council issued the amended Final EHC Plan to Mr X on 6 April 2023. The Council also issued this Final EHC Plan in line with the Consent Order by the tribunal.
39. Overall, the Council has kept to the annual review timescales in 2023. The fault in issuing the amendment notification letter outside the four-week timescale has not caused a significant injustice to Mr X or Y.
40. As part of our investigation into Mr X’s complaint, the Council offered to pay Mr X £300 as a symbolic gesture to acknowledge the impact of its delays outside the statutory timescales on Mr X and Y. Considering the circumstances of this complaint, a symbolic payment of £300 falls in line with the Ombudsman’s guidance on remedies for the impact on Mr X and Y.

Complaints Handling

Council complaints procedure

41. In 2022 the Council’s corporate complaints policy involved a two-stage procedure for handling complaints.
42. The Council’s first stage was called the “initial review” stage. At this stage, the Council’s policy said it would acknowledge a complaint within five working days and provide a complaint response within ten working days of the acknowledgement.
43. The Council’s second stage was called a “further review” stage. At this stage, the Council’s policy said it would acknowledge a request for a further review within five working days and provide a response within twenty working days of the acknowledgement.

What happened

44. On 23 June 2022, Mr X made a formal complaint to the Council.
45. The Council acknowledged Mr X’s complaint on 27 June 2022 and said it would issue a response at Stage 1 of its complaints process.
46. Mr X contacted his MP on 14 July 2022 about his complaint with the Council. Mr X’s MP contacted the Council on his behalf to raise Mr X’s concerns.
47. On 29 August 2022, Mr X contacted the Council to chase a response to his complaint. Mr X requested a response at Stage 2 of the complaints process straight away because of the delays with issuing a Stage 1 complaint response.
48. The Council sent a Stage 1 complaint response to Mr X’s MP on 2 September 2022. The Council said:
• Following the annual review of Y’s EHC Plan in January 2022 it received a request for an alternative educational placement other than mainstream school for Y.
• It had consulted appropriate settings for Y but none had offered a place for Y.
• A named SEN Officer would contacted Mr X by 5 September 2022 to take this matter forwards.
49. On 2 October 2022, Mr X sought consideration of his complaint at Stage 2 of the Council’s complaints process.
50. The Council passed on Mr X’s request to its complaints team on 5 October 2022 and sent an acknowledgement to Mr X on 6 October 2022.
51. On 18 May 2023, Mr X confirmed with the Council he no longer needed a Stage 2 complaint response from the Council.

Analysis

52. The Council acted in line with its complaints policy by acknowledging Mr X’s complaint on 27 June 2022 as this was within five working days of receiving his complaint.
53. The Council failed to provide a complaint response within ten working days following the acknowledgement. The Council issued its Stage 1 complaint response seven weeks outside its complaint response timescales. When the Council issued this response, it only sent this to Mr X’s MP and failed to send this to Mr X. The Council also failed to complete the promised contact with Mr X by 5 September 2022. The Council was at fault for failing to meet timescales, failing to provide a response to Mr X directly and failing to follow through on its promises at its first stage of the complaints process.
54. The Council again acted in line with its complaint policy by acknowledging Mr X’s request for a response by the Council at the second stage of its complaints process within five working days.
55. The Council was at fault for delays in providing the further review second stage complaint response. The Council should have provided a response by 3 November 2022. The Council did not issue a response to Mr X and only agreed on 18 May 2023 not to issue a further complaint response. This meant the Council was at fault for six months and two weeks of delays outside its complaints process.
56. As part of our investigation into Mr X’s complaint, the Council offered to pay Mr X £200 as a symbolic gesture. The Council offered this to acknowledge the impact of its delays outside its complaint policy in responding to Mr X’s complaint and the poor manner in which it handled his complaint. A symbolic payment of £200 falls in line with the Ombudsman’s guidance on remedies reflective of the impact on Mr X caused by the Council’s fault in complaint handling.

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Agreed action

57. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mr X and pay him £500 as a symbolic gesture to reflect the impact of the Council’s delays in reviewing Y’s EHC Plan and it’s the impact of the fault of its complaint handling on Mr X and Y.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. There was fault leading to injustice. As the Council accepted my recommendations, I have completed my investigation as I consider that a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman