Summary: Ms X complained about delays and faults by the Council in its administration and review of her son’s Education, Health and Care Plan. We found the Council was at fault for delay in updating the plan; in carrying out an assessment and in reimbursing her for the cost of an occupational therapy assessment. These faults caused significant distress to Ms X and her son. The Council has accepted these findings. At the end of this statement, we set out action it has agreed to take to remedy this injustice and improve its service.

The complaint

1. Ms X complained about the delays in the Council’s administration of an Education, Health and Care (EHC) Plan for her son. She said the Council had:
1. delayed updating her son’s EHC Plan;
2. failed to consider her request for a personal budget;
3. failed to provide the provision her son needed following a diagnosis of dyspraxia;
4. failed to carry out an assessment; and
5. failed to reimburse her for an occupational therapy (OT) assessment despite agreeing to.
2. Ms X said this has caused her and her son significant distress and meant the Council had not met her son’s special educational needs.

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The Ombudsman’s role and powers

3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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What I have and have not investigated

9. I investigated all parts of Ms X’s complaint. This was despite Ms X having had two opportunities to appeal to the Tribunal. First, when the Council issued a final EHC Plan in February 2024. Ms X did not appeal at the time because a further annual review of her son’s Plan took place in April 2024. I considered Ms X had good reasons for not appealing because the review also offered a chance for amending her son’s Plan.
10. There were also a good reason Ms X did appeal on the second occasion, in September 2024. Because at that time, the Council had agreed to complete a reassessment of her son’s needs. I considered Ms X had no reason to separately pursue changes to the Plan, while that reassessment remained ongoing.

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How I considered this complaint

11. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
12. Ms X and the Council also had an opportunity to comment on a draft version of this decision statement. I took account of any comments they made before finalising the decision statement.

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What I found

EHC Plan

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 arrangements to meet them. An EHC Plan has various 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

14. A council must arrange for a review of an EHC Plan 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
16. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Re-assessment of EHC Plans

17. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan when requested to by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
18. The council can refuse to reassess if less than six months have passed since a previous EHC needs assessment. It can also refuse if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
19. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.
20. If the council agrees to reassess, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Summary of the key events

21. At the beginning of the events covered by this complaint, August 2023, Ms X’s son, B, had an EHC Plan. The Council contacted her and asked her for details of her preferred school placement for B’s phased transfer to secondary education in September 2024.
22. B’s school held an annual review of his Plan in October 2023. The school stated B’s plan needed amendments as it was out of date. The Council issued a draft amended EHC Plan shortly after.
23. Ms X gave her preference for B’s secondary school as ‘School Y’. The Council began its consultation process in November 2023.
24. In December 2023, the Council recorded in its notes that School Y said it could not meet B’s needs. But in February 2024, the Council finalised the EHC Plan, naming School Y from September 2024.
25. In March 2024, Ms X sent the Council a copy of an OT report she had sourced privately. She asked it to update B’s EHC Plan to include information in the report and asked if it could reimburse her for the cost. She also asked whether the Council had sourced a speech and language therapy (SALT) assessment.
26. Ms X complained shortly after about the time taken by the Council to update B’s EHC Plan. She said:
• it had previously told her that it would reimburse her for the private OT assessment;
• that following the OT assessment, B now had a dyspraxia diagnosis;
• that she wanted the EHC Plan updated; and
• she wanted a personal budget to pay for OT provision B needed before the phase transfer.
27. In response the Council said:
• an annual review had been arranged for April 2024. It might need to reassess B’s needs which would take 14 weeks;
• if it needed to make significant changes to B’s Plan then it would amend it after the annual review;
• Ms B could discuss having a personal budget at the annual review; and
• it had not yet decided whether to reimburse her for her OT costs.
28. Dissatisfied with this reply, Ms X escalated her complaint. She said:
• School Y said it had received no paperwork from the Council and did not know anything about the annual review; and
• B’s EHC Plan needed updating.
29. The annual review was held in the same month. It noted B needed up to date assessments. The Council told Ms X it would update B’s Plan.
30. In June 2024 the Council wrote to Ms X, saying:
• it had prepared the amended plan and would send this to Ms X;
• it would continue to chase School Y about B’s placement;
• it had agreed to reimburse Ms X for the OT assessment; and
• it agreed it appropriate to reassess B’s needs.
31. Then, in response to Ms X’s complaint, the Council said:
• it had agreed to reassess in June 2024 and this was underway;
• it had also agreed in June to reimburse her for the cost of the OT assessment;
• it would consider her request for a personal budget to provide OT; and
• it accepted there had been delays in updating B’s Plan and in securing a decision around private OT funding. It apologised for these.
32. There are several emails between the Council and School Y between April and July 2024. School Y questioned why the Council had named it in the plan despite its objections. The Council consulted School Y a second time. It maintained it could not meet B’s needs. But the Council disagreed.
33. So, the Council finalised B’s EHC Plan in September 2024 and named School Y.
34. School Y contacted the Council in early September 2024 to say it did not expect B at school as it did not know the Council had named it in his EHC Plan. Following discussions with the Council, School Y agreed B could start later in the week.

Consultation process

35. School Y made a complaint against the Council to the Department for Education about how the Council had consulted it. The investigation noted there was insufficient evidence to show the Council had conducted a proper consultation or considered the school’s concerns when it decided to name it in February 2024.
36. But the investigation found the Council had accepted these faults and consulted again with the school. So, it considered it reasonable the Council named School Y on B’s EHC Plan in September 2024.

Analysis- was there fault by the Council causing injustice?

Part a and d of the complaint – the complaints about delay in issuing a final EHC Plan following a review and in completing a reassessment of need.

37. Following the October 2023 review the Council issued a draft EHC Plan in the same month and finalised the plan in February 2024. This was not in line with the statutory timescales. This was a fault.
38. This delay in updating B’s EHC Plan caused significant distress to Ms X. This was an injustice.
39. A further review was held in April 2024. In June 2024 the Council considered a reassessment of B’s needs appropriate. The Council went on to issue a further amended EHC Plan in September 2024. However, it did so without the reassessment having begun. The Council said it would present the reassessment to a panel of officers earlier this month, to determine the outcome. It said waiting for the outcome of the private OT’s review, had delayed this consideration.
40. Guidance states the maximum timescale for re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC Plan. Therefore, as the Council agreed to reassess in mid-June 2024, there was a significant delay in the Council completing the reassessment. This remained ongoing at the date of this decision. This was a fault. And this too caused distress to Ms X and B.
41. In considering how the Council should remedy this injustice, I took account of our guidance on remedies. This suggests a remedy payment for distress of up to £500 usually appropriate. However, we can recommend higher payments to remedy distress where we find it especially severe and/or prolonged. I considered in this case the significant delays had caused a prolonged injustice to Ms X and B and so I recommended a payment of £750.

Part b of the complaint – the complaint about delay in agreeing a personal budget

42. Ms X first asked for a personal budget in March 2024. She wanted to fund B’s OT before he started School Y in September.
43. Councils have to consider a request for a personal budget for special educational provision during an assessment or review of the plan, not at other times. So, properly the Council told Ms X to discuss her request at the April 2024 annual review. In late June 2024, the Council said her request was under consideration. In August 2024, the Council decided to fund the OT and it included this provision in B’s EHC Plan issued in September.
44. The Council’s policy says if it refuses a personal budget for special educational provision, it will explain why. I did not see any evidence which showed the Council had done this. This lack of communication was a fault. It caused frustration and distress to Ms X, which was a further injustice to her. However, had the fault not occurred, I could not say the Council would have provided a personal budget in the interim.

Part c of the complaint – the complaint about a lack of provision for dyspraxia

45. Ms X provided the Council with a copy of the private OT report in March 2024 and said B had a dyspraxia diagnosis. B’s annual review followed shortly after in April 2024. Following this, the Council should have written to Ms X within four weeks if it proposed amending B’ EHC Plan. But the Council did not write to her until late June 2024. This delay was a fault. However, I recognise the Council had informally advised Ms X of its intent to amend B’s Plan within four weeks of the review. Therefore, I considered limited injustice caused by this fault.
46. The Council should have issued a final plan within 12 weeks of the review. It did not meet this timescale, which was a fault. However, I again considered the injustice caused limited. This was because even if the Council had finalised B’s EHC Plan in time, this would not have been in time for them to receive OT provision in the 2023-24 academic year. So they would not have received OT provision during that time. And the Council had added that provision to the September 2024 version of B’s Plan.

Part e of the complaint – the complaint about reimbursement of the cost of an OT assessment

47. I did not see evidence to support what Ms X said in her complaint of March 2024, where she said the Council had told her it would reimburse her for the cost of the private OT assessment. The Council’s response said it had not yet decided if it agreed this. It considered the request as part of the April 2024 review. I considered the Council could take this approach as it assessed whether to use the information contained in the OT report.
48. The Council’s decided in June 2024 it would reimburse Ms X for the cost and did so in early July 2024. So, there was a delay of around eight weeks in it making this decision. That was a fault. It caused distress and uncertainty to Ms X, which was a further injustice to her.

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Agreed Action

49. The Council has accepted the findings set out above. It has agreed that to remedy Ms X and B’s injustice it will, within one month of my final decision:
• write to Ms X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Ms X £250 in recognition of the significant distress and frustration caused to her the faults identified in paragraphs 37, 44 and 48;
• pay Ms X £750 in recognition of the uncertainty caused to her by the fault identified in paragraph 40; and
• provide Ms X with an update following it presenting the re-assessment of B’s needs to a panel of its officers earlier this month. The update will set out what decision the Council has made and timescales for completing any agreed actions.
50. In addition, the Council has agreed that within two months it will issue written reminders to relevant staff to ensure they are aware of Government guidance which states:
• councils must issue decisions to amend EHC Plans within four weeks of the review meeting. Councils then must then issue final amended EHC Plans within a further eight weeks; and
• if the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.
51. The Council will provide us with evidence it has complied with the above actions.

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Final decision

52. For reasons set out above I have upheld this complaint, finding fault causing an injustice to the complainant. The Council has accepted these findings and agreed action that I consider will provide a satisfactory remedy for the injustice. Consequently, I have completed my investigation satisfied with its actions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman