Summary: Mr X complained the Council delayed finalising his child’s education, health and care plan and it provided him with misleading information. The Council acknowledges it is at fault, the delay frustrated his appeal rights and caused avoidable distress. The Council has agreed to provide Mr X a payment to reflect the avoidable distress caused.

The complaint

1. The complainant, Mr X, complains the Council delayed issuing his child’s Education, Health and Care Plan and it provided him with misleading information.

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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. 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.
4. 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)
5. 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)
6. 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)
7. 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

8. I have investigated the delay in issuing Y’s final EHC Plan.
9. I have not investigated the Council’s decision not to name the school of parental preference in Y’s final EHC Plan. Mr X has appealed to the SEND Tribunal, as set out in paragraphs 4 and 5 above, I cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the SEND Tribunal.

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How I considered this complaint

10. I considered Mr X’s complaint and the information he provided.
11. I considered the information I received from the Council in response to my enquiries.
12. Mr X and the Council were given the opportunity to comment on a draft of this decision. I considered their comments before making this final decision.

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What I found

Relevant law and guidance

Education, health and care (EHC) Plans

13. 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 SEND Tribunal or council can do this.

Transfer between phases of education

14. An EHC Plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education to allow for planning for and, where necessary, commissioning of support and provision at the new setting.
15. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. Primary school to secondary school is a key transfer.

What happened

16. Mr X has a child, Y, who has an education, health and care (EHC) Plan maintained by the Council. At the relevant time, Y was in his final year of primary school and due to transition to secondary school in September 2024.
17. In March 2024, Mr X complained to the Council that it had not issued Y’s final EHC Plan in accordance with the statutory deadline which was 15 February 2024. Mr X was of the view the Council had deliberately delayed issuing the final Plan naming School 1, Mr X’s parental preference of school, to the point where School 1 had to retract the offer of a place and offer it to another child. Mr X complained the Council had frustrated his appeal rights and requested the Council issue Y’s final EHC Plan naming School 1 or that it named a ‘Specialist Provision’ as the type of setting.
18. The Council responded to Mr X at Stage 1 of its complaint process and upheld his complaints. It said it was unable to finalise Y’s EHC Plan by 15 February 2024 because it had to undertake a further search for a suitable placement because the parental preference, School 1, was unsuitable. The Council apologised for the delay and for not having a placement arranged for September.
19. The Council acknowledged that some of the wording used by a council officer regarding EHC Plan timeframes was misleading. The Council said it had re-iterated to the relevant team about the need to be clear and accurate in communication.
20. On the same day, Mr and Mrs X requested their complaint be escalated to Stage 2 of the complaints process because the response had not alleviated any of their concerns.
21. On 27 March 2024, the issued Y’s final EHC Plan and it named School 3, a specialist setting.
22. The Council responded at Stage 2 and reviewed the Stage 1 response. It was of the view that appropriate actions were undertaken and a reasonable response was provided.
23. Mr and Mrs X remained unhappy with the Council’s response. They did not feel an apology was sufficient to address the injustice caused by the delay in issuing Y’s EHC Plan. They also highlighted the council officer who provided the misleading information had said there was a delay in responding to their correspondence because she was checking some details to ensure she was giving correct information. This is why they were of the view that it was a deliberate attempt to mislead.
24. Mr and Mrs X brought their complaint to the Ombudsman.

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Analysis

The delay in issuing Y’s final EHC Plan

25. The Council should have finalised Y’s EHC Plan by 15 February 2024 but it delayed issuing the final plan by six weeks. This is fault.
26. This delayed Mr and Mrs X’s right of appeal, it caused frustration and it was a period of uncertainty for them because they did not know if Y would have a school to go to in September. This injustice warrants an appropriate remedy.

The information the Council provided to Mr X

27. The Council acknowledges the information regarding EHC Plan timescales was misleading and it has apologised. I consider this is an appropriate remedy for the frustration this caused.
28. The Council has provided me with evidence to demonstrate it has taken relevant action to address the cause of the misleading information Mr and Mrs X were provided with and it has issued a reminder to staff about transition planning and timescales. I have not recommended any service improvements because I am satisfied with the action the Council has taken in response to this complaint.

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Agreed action

29. To remedy the injustice caused by the delay in finalising Y’s EHC Plan, the Council has agreed that within four weeks of this final decision, it will pay Mr X a symbolic amount of £250.
30. The Council will provide us with evidence it has complied with the above actions.

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Final decision

31. The Council is at fault for delays in issuing Y’s EHC Plan and the Council has agreed to remedy the injustice this caused. Therefore, my investigation is complete and this complaint is closed.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman