Summary: Miss X complained about the way the Council dealt with her son, Y’s education. The Council was at fault for failing to issue the Education Health and Care Plan within statutory timeframes and poor communication and complaint handling. This caused distress and frustration to Miss X and Y. The Council will apologise and make a payment to recognise the personal injustice caused.

The complaint

1. Miss X complains about the way the Council dealt with her son, Y’s, education, she says the Council:
1. failed to give her the right to appeal decisions;
2. failed to show transparency in its decision making and failed to justify the decision to remove Y from the special school panel;
3. poorly communicated between internal departments;
4. poorly communicated with her and Y’s primary school;
5. failed to identify and name an appropriate provision; and
6. failed to complete an updated EHC needs assessment for Y within required timeframes.
2. Miss X says this has caused Y’s schooling to be hindered and delayed which has negatively impacted on his mental health and academic progress. Miss X also says this has negatively impacted her mental health, so much so that she has been unable to work.

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The Ombudsman’s role and powers

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. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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. 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)

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What I have and have not investigated

8. I have exercised discretion to investigate matters going back to February 2023. This is because the Council’s decision-making process relating to Y’s EHC plan goes back to this time period.
9. I have not investigated events that happened before February 2023. This is because it would have been reasonable for Miss X to have complained about these matters sooner. I will not make any substantive findings on anything that happened before February 2023. The end date of my investigation is May 2024, which is when Miss X made this complaint to the Ombudsman. I have not investigated any delay following the annual review in January 2024.
10. I have also not investigated Miss X’s complaint (e) that the Council failed to identify and name an appropriate provision in Y’s EHC plan. This is because the school or setting named in Section I of an EHC plan comes with a right of appeal. If Miss X disagreed with this, it would have been reasonable for her to use her right of appeal.
11. Linked to this, I have not investigated Miss X’s complaint (b) that the Council failed to show transparency in its decision making and failed to justify the decision to remove Y from the special school panel. I have also not investigated part of her complaint (a) related to the right to appeal decisions in the special school panel (SSP). This is because the SSP process is closely linked to the right of appeal of section I of the EHC plan.
12. I have investigated the remainder of Miss X’s complaint.

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How I considered this complaint

13. I have considered the information Miss X and the Council provided.
14. Miss X and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

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What I found

Legislation and guidance

EHC plan 

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. 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

16. 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. The process is only complete when the council issues a decision about the review.
17. 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)
18. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

Appeal rights

19. There is a right of appeal to the Tribunal against a council’s 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 in their EHC Plan.
20. 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)

Local Government and Social Care Ombudsman principles of good administrative practice

21. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction. This says we expect councils to:

• keep proper and appropriate records;
• be open and clear about policies and procedures and ensuring information, and any advice provided, is clear, accurate and complete; and
• state the criteria for decision making and giving reasons for decisions.

Complaint policy

22. The Council’s complaint policy says it will respond to stage one and two complaints between 20 and 30 working days, depending on the complexity of the complaint.

Background information

23. Y is a child with additional needs. The Council issued an EHC plan for Y in April 2022.
24. The Council held an annual review in December 2022.

Summary of key events

25. The Council said it sent a proposed amended EHC plan and covering letters to parents on 20 February 2023, following the annual review held in December 2022.
26. In June, Miss X contacted the Council to say she was dissatisfied that the Council had delayed processes and communicated poorly with her.
27. Later the same day, Y’s school contacted the Council to say it was concerned there was no plan for Y’s education in September and it could not meet Y’s needs. There is no evidence the Council responded to this email.
28. The Council sent an amended final EHC plan, with covering letters to Y’s parents on 3 July, following the review held in December 2022. This gave Miss X details of her appeal rights.
29. On 25 January 2024, Miss X made a stage one complaint to the Council. She said:

• Y’s current school could not meet his needs;
• the Council failed to meet statutory timeframes related to Y’s EHC plan; and
• the Council continued to communicate poorly with her.

30. On 30 January 2024, the Council held an EHC plan review meeting.
31. Miss X sent another complaint on 1 February, to link to the complaint sent in January. Miss X raised similar concerns as her previous complaint, but in addition said the lack of suitable provision for Y was causing a decline in his wellbeing.
32. On 25 March 2024, the Council confirmed a new provision for Y to attend from September 2024.
33. Miss X escalated her complaint to stage two on 28 March. She said:

• the Council failed to respond to her complaint fully;
• the Council communicated with her and Y’s school poorly; and
• the Council had failed to meet statutory timeframes.

34. The Council responded to Miss X’s stage two complaint on 1 May. It apologised that Miss X felt there had been poor communication. It said it had now allocated a team manager to deal with Miss X’s concerns quickly and effectively from now on.

Response to my enquiries

35. The Council said there were instances of misunderstandings between the SEND service and Miss X. It noted it could have made a telephone call to Miss X to explain what was happening and apologised that it failed to do this.

Analysis

Appeal rights

36. In the period of this investigation, the Council sent one amended final EHC plan to Miss X, in July 2023. This properly explained her appeal rights, and so I find no fault here.

Communication

37. I have read the Council’s internal case notes and have seen no evidence of poor communication between internal departments, and so I find no fault in this element of Miss X’s complaint.
38. There is evidence that Miss X and Y’s school contacted the Council on several occasions and the Council either failed to respond, delayed in responding or provided conflicting information.
39. This is not in line with the Ombudsman’s ‘Principles of Good Administrative Practice’ which says councils should deal with people helpfully and promptly and take responsibility for their actions.
40. I find fault in the failure of the Council to respond to Miss X and Y’s schools communications in a timely manner and on some occasions, failing to respond at all. This caused Miss X frustration.
41. Following Miss X’s stage one complaint, it also took the Council nine weeks to respond. The Council’s policy says it will respond to stage one complaints within 20 working days or within 30 working days if the complaint is complex. This did not happen, and this is fault which caused Miss X frustration.

EHC plan timeframes

42. There have been several delays related to Y’s EHC plan, but, I am only able to look at those which occurred within the period of my investigation. I have not investigated any delay following the annual review in January 2024, only the delay following the annual review in December 2022
43. The Council said it sent its decision to amend the EHC plan on 20 February 2023, following an annual review in December 2022. The Council should have then issued the final plan eight weeks later. However, it did not issue this until July 2023 which was 19 weeks later. This created a significant delay of 11 weeks which is not in line with the statutory timeframes and is fault.
44. This has caused frustration and distress to Miss X and Y.
45. The Council said it is aware of the delays related to its EHC plan processes. It says it is finalising plans to reduce delays. This includes introducing a case tracker for all children and young people with an EHC plan and key dates for action by the Council. I will therefore not recommend any further service improvements here, but I will recommend remedies for the personal injustice caused to Miss X and Y.

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Agreed action

46. Within four weeks of our final decision, the Council will:
• apologise to Miss X and Y for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology;
• make a payment of £300 to Miss X, on behalf of Y, to recognise the distress and frustration caused by the delay in issuing the final EHC plan. This equates to approximately £100 per month from the date the EHC plan should have been issued until July 2023, when the Council issued the final EHC plan; and
• make a payment of £100 to Miss X to recognise the frustration caused to her by the Council’s poor communication and delayed complaint response
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman