Summary: There was a three-month delay issuing Y’s final Education Health and Care Plan after the Council conceded Ms X’s appeal. The Council has already offered a symbolic payment to reflect the avoidable frustration and time and trouble: this is a partial remedy. The Council will issue a further apology and make an additional payment of £1350 to reflect the loss of a term and a half of special educational provision.

The complaint

1. Ms X complained:
1. The Council refused to issue her daughter Y with an Education Health and Care (EHC) Plan outside the statutory deadline, failed to tell her this and sent her daughter Y’s file to the wrong school;
2. Y was missing education during the EHC process and the Council did not take adequate action; and
3. The Council delayed issuing Y’s final EHC Plan.
2. Ms X said this caused avoidable distress, a delay in appeal rights and missed special educational provision (SEP).

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
6. 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)
7. We provide a free service, but we use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement, (Local Government Act 1974, section 24A(6), as amended, section 34(B))
8. 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)
9. 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

10. I investigated complaint (c).
11. I did not investigate complaint (a) because it is late, was appealed to the SEND Tribunal and the unremedied injustice is not significant enough. Complaints about data protection are also best dealt with by the Information Commissioner.
12. I did not investigate complaint (b) because at the time Ms X complained to us, the Council was yet to issue its final response to this complaint. It was reasonable for Ms X to use all stages of the Council’s process and then to complain to us separately if she was unhappy with the Council’s final response.

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How I considered this complaint

13. I considered the complaint to us, the Council’s response and documents in this statement.
14. Ms 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

15. 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.
16. Councils must secure special educational provision in an EHC Plan (Children and Families Act 2014, Section 42).
17. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs, including a decision not to issue a child with an EHC Plan. We refer to it as the SEND Tribunal in this decision statement.
18. If a parent has appealed to the SEND Tribunal against a decision not to issue an EHC Plan and the council concedes the appeal, the appeal is treated as if the parent won without the need for an order. The council must:
• Issue a draft EHC plan within 5 weeks of the date it notified the Tribunal and
• Send a copy of the finalised EHC plan to the parent within 11 weeks of the date it notified the Tribunal. (Regulation 45 SEND Regulations 2014)

What happened

2022

19. Y has special educational needs. Ms X requested an EHC needs assessment in November. The Council agreed to complete a needs assessment in December.

2023

20. The EP’s advice was available at the end of January.
21. The Council decided not to issue a Plan on 29 March. Ms X appealed to the SEND Tribunal.
22. Ms X complained to the Council in July, raising the matters in complaint (a). The Council’s response in August apologised for the delay in the process of applying for an EHC Plan and for the failure to advise her of the outcome before it told Y’s school.
23. The Council’s governance panel reconsidered the case and reversed its decision on 23 August.
24. Ms X sent emails to the Council in October and November asking for an update on when she could expect to receive Y’s EHC Plan. She complained to the Council again in December saying she had not had an update from the SEND Team following the Council’s decision to issue Y with an EHC Plan.

2024

25. The Council responded to Ms X’s complaint in February, apologising for the delay and explaining this was due to the long-term absence of the case officer. The response said Y’s draft Plan could have been issued by October 2023 but for the delay. It went on to say the Council was recruiting additional staff within the SEND service and would be issuing Y with a draft Plan by 23 February, giving her 15 days to comment and then issuing a final Plan.
26. The Council offered Ms X a payment of £500 to reflect the time, trouble and uncertainty caused by delays in the EHC process and a payment of £200 to reflect avoidable frustration caused by poor communication and delay responding to the complaint. Ms X accepted the Council’s offer.
27. The Council issued a draft EHC Plan on 15 March 2024 and a final Plan on 5 April.

Findings

28. The Council should have issued Y’s draft EHC Plan within five weeks of informing the Tribunal it had conceded Ms X’s appeal. It is reasonable to assume the Council would have notified the Tribunal by 30 August (a week after the panel reversed the decision). So Y’s draft Plan should have been available by the start of October. The final Plan should have been issued by the middle of November 2023 at the latest. It wasn’t issued until the start of April. This was a delay of three months. Y is entitled to the SEP on her final Plan and so she has a loss of three months provision. Ms X also suffered avoidable distress, frustration and time and trouble. However, the Council’s payment of £700 is an appropriate remedy for this.

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Agreed action

29. Within one month of my final decision, the Council will:
• Apologise. 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.
• Make a payment of £1350 to reflect the loss of a term and a half of SEP that Y would have received but for the fault. I have taken into account the moderate support and provision described in Section F of Y’s EHC Plan.
30. I am not making any recommendations for improvements to the Council’s SEND service because it confirmed in the complaint response that it is recruiting additional staff.
31. The Council should provide us with evidence it has complied with the actions in paragraph 29.

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Final decision

32. There was a three-month delay issuing Y’s final Education Health and Care Plan after the Council conceded Ms X’s appeal. The Council has already offered a symbolic payment to reflect the avoidable frustration and time and trouble: this is a partial remedy. The Council will issue a further apology and make an additional payment of £1350 to reflect the loss of a term and a half of special educational provision.
33. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman