Summary: There was excessive delay by the Council in completing an annual review and amending a final Education, Health and Care Plan; in consulting specialist schools so it took two years to identify a place; and in replying to a request for a statutory reassessment. There was also a failure to complete agreed complaint actions. This caused unnecessary time, trouble, frustration, uncertainty and distress and delayed a right of appeal by over a year. The Council will apologise, make a symbolic payment and carry out service improvements. The complaint is upheld.

The complaint

1. Mr X complains on behalf of his child, Y. Y has special educational needs (SEN) and has an Education, Health and Care (EHC) Plan maintained by the Council.
2. Mr X complains:
• The Council failed to complete Y’s 2022 annual review on time.
• The Council failed to complete Y’s 2024 annual review on time.
• The Council failed to respond to his 2022 request for a statutory reassessment for a period of one year.
• There was delay in finding a specialist placement recommended by the Council’s panel, with a long gap when no consultations with schools took place.
• The Council refused an interim review on the basis the mainstream placement was not at ‘crisis point’ and Y was not at risk of permanent exclusion.
• Equine therapy was recommended in 2023 but not explored despite requests.
• The Council failed to communicate with him appropriately.
• The Council failed to deal with his complaint in a timely manner.
• The Council failed to progress agreed actions in the complaint process or arrange meetings.
• There was a high turnover of staff, which led to drift and delay.
• The Council offered a financial remedy during the local complaints process which Mr X considers insufficient for the injustice caused.
3. Mr X says the injustice caused was:
• Stress on the family which led Mr X to take three months off work.
• Y missed out on a specialist placement between 2022 and 2024.
• While Y attended mainstream school this did not meet needs and parents got frequent calls when Y became dysregulated or was excluded.

Back to top

The Ombudsman’s role and powers

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 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)
5. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. We cannot investigate the consequences of a decision where the decision has been appealed to a tribunal. (R (on the application of ER) v the Commissioner for Local Administration, 2014)
8. 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.
9. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
10. 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.
11. 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)

Back to top

What I have and have not investigated

12. I have investigated the above complaints except where Mr X has used an alternative legal remedy by appealing to the SEND Tribunal about the same matter, or could have included matters in his appeal, or where the complaints relate to the consequences of matters that were appealed. I explain this further below.

Back to top

How I considered this complaint

13. I have considered information provided by Mr X and the Council including:
• EHC Plans and SEN documents
• Attendance records
• Tribunal documents
• Correspondence with schools, between Mr X and the Council and complaint documents.
14. I have spoken to Mr X by telephone.
15. I have considered relevant law and guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’).
16. I have considered the Ombudsman’s Guidance on Remedies.
17. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
18. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Relevant law and guidance

19. 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. 

20. Councils must respond to requests for a statutory assessment or reassessment for an EHC Plan within six weeks. If the decision is not to assess or reassess it should notify the parent of their right to appeal this decision.

21. There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

22. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan of (Section 42 Children and Families Act).

23. 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.

24. 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) 

25. Where the council proposes to amend an EHC Plan, the council must complete this process and issue an amended final Plan within twelve weeks of the review meeting.

Key facts

26. A review of Y’s EHC Plan took place in late Spring 2022. The recommendation from the review meeting was a change of placement. The Council decided to amend the plan. This should have been completed within twelve weeks, by Summer 2022.
27. The Council should have issued a draft amended plan within four weeks of the review meeting. It did not issue a draft amended plan for a year. After a revised draft the Council issued a final amended plan in Autumn 2023, sixteen months after the review meeting. The amended final EHC Plan named the same mainstream school Y was already attending.
28. The Council’s complaint response acknowledged delay. It said this was initially due to delay in the school returning paperwork and then, when the request for a change of placement went to the Council’s panel, the panel requested evidence from Child and Adolescent Mental Health Services (CAMHS). The Council told me was this evidence was delayed. However, the documents I have seen show the evidence was available within a month of the first panel. The case did not go back to panel with the new evidence for another five months.
29. The Council acknowledged in its complaint response that delay in completion of the 2022 review delayed Mr X’s appeal rights by over a year.
30. When the Council’s panel met to consider Y’s case again in late 2022, it decided Y did need to move to a specialist school. I cannot see the Council started to consult any schools until mid-2023 when the draft amended Plan was prepared.
31. Also, in late 2022, Mr X requested a reassessment of need under s.44(2) of the Children and Families Act 2014. This was included in his complaint letter to the Council. Mr X said Y’s needs had changed. The Council should have responded to the request for reassessment within six weeks. The Council did not respond to the request until a year later in late 2023. It then declined to reassess. The Council said it had no record of receiving the reassessment request in 2022, but it is clearly included in the complaint letter which the Council responded to.
32. The Council’s stage two complaint response in late 2023 acknowledged that at stage one the Council had agreed to speak to the school about the reassessment request and to take this to panel, but this had not happened. At stage two, the Council said Mr X should use the right of appeal he had now gained from the issue of an amended final Plan (in Autumn 2023). The Council’s stage two response did not comment on the delay in processing the reassessment request or offer any remedy for this.
33. In Summer 2023 child mental health services recommended a specialist placement and said ‘equine therapy would be a good match for Y’s needs in the future’ and might support Y with ‘emotional regulation, self-awareness and social interactions’. It is not clear if this was a recommendation for Health or Education provision.
34. Mr X asked for an urgent annual review meeting in late 2023 because no specialist placement had yet been found. Records show an Educational Psychologist (EP) considered there was a consensus a specialist placement was required. A meeting was arranged, but this was with other services supporting the family, not the SEN team. Mr X complained the SEN officer did not attend this meeting as, he says, was agreed. The Council said the SEN officer was required to attend court and sent a replacement, this was not a SEN led meeting, and there was no clear agenda. Mr X disagrees with this analysis. He says he prepared a detailed agenda and the Council’s SEN officer agreed to attend, but then sent a replacement who was inadequately briefed.
35. The issue of equine therapy was raised at this meeting, and it was noted the SEN officer would investigate if therapies could be funded as interim support under the EHC Plan. Mr X has provided evidence he contacted the Council about this again in early 2024.
36. The Council’s final complaint response in early 2024 offered Mr X £500 for his time and trouble due to the Council’s delay and a £300 uncertainty payment. Mr X was content with £500 time and trouble payment but considered £300 was not enough for the injustice caused given the delay of over one year. The Council then increased the payments to £500 and £600 (total £1100).
37. Mr X appealed the contents of the final Autumn 2023 EHC Plan as it named a mainstream not specialist placement. When the Council refused the reassessment Mr X lodged a second appeal against the refusal to reassess.
38. Both appeals were resolved in mid-2024 before the planned hearings took place.
39. Y started at a specialist placement in Summer 2024, eighteen months after this type of placement was recommended by the Council’s panel.
40. Mr X says the Council consulted schools in mid-2023, then did nothing for many months, and then consulted the same schools in early 2024. Mr X said he found a school with an available place, and this is why Y now has a specialist school place.
41. The Council told me that finding a specialist place ‘took longer than it would like’ which was due to demand for places locally.
42. A log provided by the Council shows it consulted twelve schools in June 2023, three schools in January 2024 and seven schools in February 2024.
43. Mr X also raised a new complaint about failing to progress matters or hold an interim review in Spring 2024.
44. The Council told me the special educational provision in Section F of the EHC Plan was delivered in the mainstream school while Y was waiting for a specialist placement and Y continued to make academic progress. It said extra resource and staffing was put into the mainstream school to manage Y’s dysregulation. Mr X says the resource in school was limited to the class teaching assistant who was often on medical leave.
45. The Council acknowledged turnover in SEN staff and that there have been some periods of instability but says this did not apply to Y’s case between late 2022 and Summer 2023. Records show five case officers were allocated between Spring 2022 and Spring 2024, but that one case officer held the case between November 2022 and August 2023.

Analysis

Fault

46. There was delay in completing the 2022 annual review. This is not explained by the need for further CAMHS evidence as this was available within a month of the panel meeting held after the review meeting. The Council should have taken the matter back to the panel in late Summer 2022 and did not do so until the end of the year, a delay of four months. This was fault.
47. The Council identified a specialist placement was required in late 2022. It should have made this decision promptly after the review meeting and the further evidence that was received in Summer 2022.
48. The Council did not amend the EHC Plan after the 2022 review for sixteen months when it should have done so within three months. This was excessive delay and was fault. There was no change of caseworker during this period so no obvious reason for delay.
49. The Autumn 2023 final Plan, when it was eventually issued, named a mainstream school, because a specialist placement had not yet been found. Mr X appealed the decision not to name a specialist placement. As Mr X has used an alternative legal remedy to the SEND Tribunal, I cannot consider the Council’s decision on placement or any consequences flowing from this decision. This means I cannot consider whether Y’s needs were unmet in a mainstream school from Autumn 2023 until Y started the new placement in mid-2024. I also cannot investigate the complaint about lack of interim therapies during this period. Whether more specialist provision was required than was available in the mainstream placement was the matter that was the subject of the appeal. (Local Government Act 1974, section 26(6)(a), as amended and R (on the application of ER) v the Commissioner for Local Administration, 2014)
50. I do find that Mr X’s ability to appeal was delayed by thirteen months. This was excessive delay and was fault. The loss of appeal rights was itself an injustice. The appeal was resolved without the need for a hearing.
51. I have not investigated new complaint issues that arose about an interim review in 2024. I consider this would risk trespassing into matters which were at issue in the appeal.
52. Y continued to attend the mainstream school and his attendance was high. There is not enough evidence to say Y did not receive the special educational provision in his EHC Plan during the academic year 2022/23, which is the period I can consider. I cannot consider the period after the issue of the amended final EHC Plan in Autumn 2023. I do acknowledge Mr X’s evidence that parents were called to deal with episodes of dysregulation. It is speculative whether these would have been avoided if Y had been in a specialist placement. There is however no dispute that from 2022 there was agreement a specialist placement would be more suitable for Y’s needs.
53. The Council’s panel agreed to a specialist placement in late 2022 but should have made this decision in Summer 2022. The SEN team did not issue any school consultations until Summer 2023, a delay of one year. This was fault. It took two years from when the Council should have started to look for a specialist placement until one was found. While I acknowledge there was demand on places locally, we would expect councils to continue to pro-actively consult and to widen the area and type of school it was willing to consider, for example to include independent special schools, until a place was found. That it took two years raises concerns whether the Council has sufficient supply of places locally.
54. I find the Council did receive Mr X’s request for a reassessment, although this was within his complaint letter, the Council had notice of it. The Council should have replied to this within six weeks, but instead took a year. This was excessive delay and was fault. The Council agreed to deal with this as an action from the stage one complaint process, but then failed to follow this through, this was fault.
55. I cannot investigate the merits of the decision to refuse the reassessment as Mr X has used an alternative legal remedy to the SEND Tribunal, so the matter is outside my jurisdiction.

Injustice

56. There were excessive delays in completing the annual review, amending the final EHC Plan, consulting schools and replying to the reassessment request.
57. There was fault in the complaint process.
58. These caused Mr X additional time and trouble. The Council has offered a payment of £500 for time and trouble, which is appropriate.
59. The loss of appeal rights was a significant injustice and left Y attending a school Mr X considered unsuitable but with no legal mechanism to challenge this.
60. On the balance of probabilities if the search for a specialist school place had started a year earlier, as it should, then it would have concluded earlier.
61. The Council has offered Mr X a payment of £600 for the uncertainty caused by the excessive delays in this case. I consider that a payment of £1000 for the distress and uncertainty over such a long period is appropriate.

Back to top

Agreed action

62. Within four weeks of my final decision:
• The Council will apologise to Mr X for the faults identified in this decision statement.
• The Council will pay Mr X £1500 for the injustice, uncertainty, distress, time and trouble caused.
63. Within two months of my final decision:
• The Council will review lessons from this case to identify why it took two years to identify a specialist school place and to ensure staff are aware of the need to widen search areas and include independent schools when initial consults are unsuccessful. The Council may also wish to consider whether such cases should be escalated to senior staff or returned to panel when a panel recommendation remains outstanding after a set period.
• The Council will ensure it has robust processes in place to alert to statutory timescales and ensure agreed complaint actions are completed on time. The Council may wish to consider regular reviews of cases by managers where time limits have been exceeded.
64. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

65. I have completed my investigation. There was excessive delay in the EHC Plan processes and school consultations and fault in failing to follow up a complaint action. This caused injustice. I consider the agreed actions set out above are a satisfactory remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman