Summary: Mrs B complains that, after a Tribunal consent order, the Council did not upload the new Education, Health and Care Plan to its Hub. This meant her daughter’s school was following the old plan so she missed 15 months of the increased provision. We uphold the complaint due to Mrs B’s daughter’s missed provision. The Council has agreed to our recommendations.

The complaint

1. My summary of this complaint is that at Mrs B’s daughter’s (X) 2023 Education, Health and Care (EHC) Plan review she discovered the school had been using an out-of-date Plan. The Council says it did not upload the new EHC Plan to its EHC Hub, after a consent order. Mrs B says this meant X missed 15 months of the increased provision.

Back to top

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. 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. 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. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), 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).

Back to top

What I have and have not investigated

7. Mrs B complained to the Ombudsman in March 2024 about events going back to January 2023. But Mrs B only found out about the January fault in October 2023. She complained to us within 12 months of the latter date, so the complaint is not late.

Back to top

How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs B;
• made enquiries of the Council and considered its response;
• spoken to Mrs B;
• sent my draft decision to Mrs B and the Council and invited their comments.

Back to top

What I found

Legal and administrative background

EHC Plan

9. A child or young person with special educational needs may have an 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

10. 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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place.
11. 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. If the Council decides to amend a Plan, it must issue the final plan within eight weeks of the amendments notice (so within 12 weeks of the review meeting). Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and The Special Educational Needs and Disability Code of Practice: 0 to 25 years (The Code) paragraph 9.176) 

The Special Educational Needs and Disability Tribunal

12. 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.
13. While waiting for an appeal there is an option to settle the case, by agreement, before the hearing date. When this happens, the council and parents produce a document setting out what they have agree. This is called a consent order.
14. Where a council has agreed to a consent order, it should issue an amended plan within four weeks of the notification to the Tribunal. (The Special Educational Needs and Disability Regulations 2014, Regulation 45(4))

What happened

15. X has disabilities that lead to her having special educational needs (SEN). She attends a mainstream primary school and had an EHC Plan in the time before the events this complaint looks at.
16. In the summer of 2022 the Council issued a final amended EHC Plan. Miss B appealed that decision to the SEND Tribunal.
17. At the end of the year the SEND Tribunal made a consent order as Mrs B and the Council had agreed to changes to X’s EHC Plan. These included extra teaching assistant support in the classroom, 1-1 support in breaktimes, speech and language therapist involvement of nine hours a year, and occupational therapy assessment and support.
18. In the 2023 autumn term the Council arranged an annual review of X’s EHC Plan. Mrs B says at this meeting she became aware X’s school had been using the 2022 EHC Plan, not the one that it should have received following the consent order.
19. The day after the review meeting, the Council agreed to amend X’s EHC Plan.
20. A few weeks later, Mrs B complained. The Council’s January 2024 stage one complaint response:
• advised that, after the Tribunal outcome, it transferred X’s case between teams. And X’s s file was inadvertently missed by the receiving team;
• it now ensured that when information was passed from one district to another, all unfinished work was completed before the handover. And that all information was shared;
• agreed to change X’s EHC Plan and commission therapies, as had been agreed in the consent order.
21. Mrs B asked to escalate her complaint. She says during this time the Council amended an EHC Plan that was still missing the provisions its stage one response said it would put in place. Miss B says it was not until the end of February that X started to receive the provisions in the consent order.
22. Mrs B complained to the Ombudsman. In response to my enquiries, the Council accepted that it had not put in place the extra provision agreed in the consent order for the period set out by Mrs B.

Analysis

23. Mrs B and the Council accept X missed out on provision agreed in a consent order.
24. The Council should have amended X’s EHC Plan within four weeks, so by mid-January 2023 at the latest. Mrs B says X started to receive the extra provision in February 2024.

Back to top

Agreed action

25. The Council has agreed that, within a month of my final decision, it will take the following actions.
• Send Mrs B an apology letter. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• For X’s missed provision pay Mrs B a symbolic payment of £5600, calculated at £1600 per term for around three and a half terms of missed provision. Mrs B should use this payment as she sees fit for X’s educational benefit.
• For Mrs B’s avoidable distress, a symbolic payment of £250.
26. The Council should provide us with evidence it has complied with the above actions.
27. The Council has explained changes it has made to stop a recurrence of the fault, so I have not made any extra recommendations about service improvements.

Back to top

Final decision

28. I uphold this complaint. The Council has agreed to my recommendations. So I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman