Summary: Mrs X complained the Council took too long to issue her child, W, with an Education, Health and Care Plan. The Council was at fault. This caused Mrs X avoidable frustration for which the Council should apologise and pay her £150.

The complaint

1. Mrs X complained the Council took too long to issue her child, W, with an Education, Health and Care (EHC) Plan after she appealed to the SEND Tribunal. She said this had been stressful for her and delayed W receiving the education they needed.

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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. 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)
4. 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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How I considered this complaint

5. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

7. 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. Section F sets out the special educational provision the child needs to access education fully.
8. To get an EHC Plan, a child or young person must first have an assessment. Following completion of the EHC needs assessment, the council decides if it thinks an EHC Plan is necessary. If it concludes a Plan is not needed, it must tell the child’s parents or the young person of its decision and of their right to appeal that decision to the SEND Tribunal.
9. The Special Educational Needs and Disability Regulations 2014 sets out that if the Tribunal decides the council must issue an EHC Plan for a child or young person, it must send a draft version of the Plan within five weeks of the Tribunal order. The council must send the final EHC Plan within eleven weeks of the order.
10. Once the council issues the final EHC Plan, the parents or young person have a right of appeal to the SEND Tribunal about the content of the Plan, including the provision set out in section F. To appeal, the parent or young person must have a cover letter from the council setting out their right of appeal.

What happened

11. In 2022 and 2023, the Council carried out an EHC Plan assessment of Mrs X’s child, W. The Council decided it would not issue an EHC Plan in April 2023 and Mrs X appealed that decision.
12. In late 2023, while the appeal was still ongoing, the Council agreed to issue an EHC Plan for W. The SEND Tribunal issued an order in mid-December 2023 confirming that decision.
13. The Council issued a draft Plan a week later, in late December. Mrs X was not happy with the content of the Plan and there were significant discussions between her and the Council about changing it and about how the provision in the Plan would be delivered.
14. The Council issued the final Plan in late March 2024. It did not send Mrs X the cover letter until late April 2024. Once she received the letter, Mrs X appealed the special educational provision in the Plan. That appeal is still ongoing, as are discussions about how the Council is delivering the provision in the March 2024 Plan.

Findings

Delay issuing the final EHC Plan

15. The Council issued W’s draft EHC Plan in late December 2023, well within the statutory timescales set out in the Regulations. However, the Council did not issue the final Plan until late March 2024, five weeks later than it should have done. This was fault.
16. It appears the final Plan was delayed while the Council spoke to Mrs X about the content of the Plan and its delivery. However, that is not a valid reason to delay issuing a Plan.

Delay issuing the Plan cover letter

17. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6).
18. Mrs X did not complain to the Council about the delay issuing the EHC Plan cover letter. However, it is closely linked to her complaint about the delay issuing the Plan, so I have chosen to investigate it.
19. The cover letter should have been sent with W’s EHC Plan, but was instead received by Mrs X a month later. This delay was fault.

Injustice

20. The faults in paragraphs 15 and 19 meant Mrs X was delayed in beginning her appeal to the SEND Tribunal, which caused her avoidable frustration. It also meant the Council began owing W the duty to secure the special educational provision in their EHC Plan five weeks later than it should have. I cannot say what injustice this caused W because it is too closely connected to the matters explained in paragraph 26 below.

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What I have not investigated

21. Mrs X also complained:
1. the Council allowed her 2023 appeal to the SEND Tribunal to continue unnecessarily and only conceded shortly before the appeal hearing;
2. the draft EHC Plan the Council sent in late December 2023 was inadequate, which she said was because of poor decision-making; and
3. after issuing the EHC Plan in March 2024, the Council failed to secure the special educational provision in that plan.
22. Section 26(6) of the Local Government Act 1974 sets out that the Ombudsman cannot investigate any matter where the complainant has, or had, a right of appeal to a Tribunal. This includes the SEND Tribunal.
23. 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).
24. Mrs X’s complaint about the Council’s decision to continue the appeal (point (a)) is closely linked to the appeal itself so we cannot investigate it.
25. In addition, we cannot investigate Mrs X’s complaint about the content of the draft EHC Plan. Mrs X says the Council ultimately did not include the provision she was unhappy with because she was able to argue against it. The Ombudsman cannot direct a council to make changes to a draft or final EHC Plan, nor consider how it decided what to include in those Plans. This is because the SEND Tribunal is the route through which parents and young people can challenge the content of an EHC Plan. As set out above, we cannot investigate where someone has, or had, a right of appeal to a tribunal.
26. As set out in paragraph 17, we cannot normally investigate an issue where a council has not had an opportunity to respond to a complaint about it. Mrs X has complained to the Council about how it is delivering the provision in W’s EHC Plan. The complaint is ongoing so I am not satisfied the Council has had an opportunity to respond. Therefore, I have not investigated this part of Mrs X’s complaint.

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Agreed action

27. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the frustration she felt due to its delay in issuing W’s EHC Plan and cover letter. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology.
2. Pay Mrs X £150 in recognition of that frustration.
3. Confirm that in responding to Mrs X’s complaint about lost special educational provision, it will consider the fact that it delayed five weeks in issuing W’s EHC Plan.
28. The Council will provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman