Summary: the Council took 78 weeks too long to amend Mrs M’s son B’s Education, Health and Care (EHC) Plan. As a result, B did not have the support he needed when he started school and he was only able to attend part-time. We have recommended a remedy for the injustice this caused.

The complaint

1. Mrs M complains about delay by the Council amending her son B’s education, health and care (EHC) plan. She says his school was unable to meet his needs and he could only attend part-time.

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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 injustice 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 considered information provided by Mrs M and the Council. I invited Mrs M and the Council to comment on my draft decision.

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What I found

6. Mrs M’s son, B, has an education, health and care (EHC) plan maintained by the Council.
7. His pre-school held the first review of his EHC plan on 19 January 2023.
8. The Council wrote to Mrs M on 27 February 2023 to confirm it would amend the EHC plan.
9. B started primary school in September 2023. The school applied for additional funding to meet B’s needs in November 2023. The Council agreed additional funding and additional support has been in place since May 2024.
10. The Council issued a final amended EHC plan on 15 August 2024.

Mrs M’s complaint to the Council

11. Mrs M complained to the Council on 27 February 2024. She complained about the delay amending B’s EHC plan following the review in January 2023. She said B’s needs had increased, and the school was only able to offer a part-time timetable because it was funding additional support itself.
12. The Council responded to Mrs M’s complaint on 2 April 2024. The Council apologised for the delay and explained there had been staffing problems in the SEND team. The Council said it was considering a request from the school for additional funding and would update the school as soon as possible.
13. The Council responded at the second stage of its complaints process on 5 July 2024. The Council apologised for the delays, which it said were due to a significant increase in workload. The Council confirmed it had agreed additional funding for the school, and additional support had been in place since May 2024.
14. Unhappy with the Council’s response, Mrs M complained to us.

Reviewing Education, Health and Care Plans

15. The procedure for reviewing and amending an Education, Health and Care Plan is set out in legislation and Government guidance.
16. The process begins with a review meeting which is usually organised by the school on behalf of the Council.
17. Following the meeting, the school must send a report to the Council and the Council must decide within four weeks whether it intends to make changes to the child’s Plan.
18. If it decides to amend the Plan, the Council must notify the parents of the changes it intends to make and invite them to request a particular school. A recent court judgement confirmed this must happen within 4 weeks of the review meeting.
19. The Council must issue the final Plan as quickly as possible and within eight weeks of sending the draft Plan.
20. When a child is moving from an early years setting to school, regulations say the Council must complete the process by 15 February in the calendar year of the child’s transfer.
21. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision in their child’s Education, Health and Care Plan.

Consideration

What am I considering?

22. I am considering the Council’s actions from the review meeting in January 2023 until it issued the final amended Plan in August 2024.
23. I cannot consider the contents of the Plan the Council issued in August 2024. Mrs M has a right of appeal to the SEND Tribunal about the contents of the Plan.

What went wrong?

24. B’s pre-school held a review meeting on 19 January 2023. Following the review, the Council agreed to amend B’s plan. As B was due transfer from an early years setting to school, the Council should have issued the final Plan by 15 February 2023. The Council issued the final plan on 15 August 2024. This was 78 weeks late. The Council did not comply with the statutory timescales. This is fault.

What was the impact?

25. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice.
26. The new Plan should have been in place in time for B’s transfer to school in September 2023. It was not completed until almost a year later. Without the updated Plan, B’s school had to apply for additional funding and arrange support itself. That did not happen until May 2024, eight months after B started school.
27. Mrs M says the school changed B’s start and finish times and implemented a part-time timetable from September 2023 because he was unable to cope. She says B became largely non-verbal, his diet became more restricted, he began to wet and soil himself and his behaviour became un-predictable which meant he required constant supervision. Mrs M significantly reduced her working hours, which had a significant financial impact.
28. If the Council had amended B’s Plan on time, it is likely he would have attended school full-time from September 2023. In any event, he was entitled to a full-time education.
29. Mrs M disagrees with the contents of the amended plan and has appealed to the SEND Tribunal. Delay issuing the plan has delayed Mrs M’s right of appeal.

How can we put things right?

30. We may recommend a remedy for injustice that is the result of fault by the Council.
31. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mrs M and B, we may recommend the Council makes a symbolic payment.
32. The impact on B’s education and development is incalculable. There is no formula I can use. Any recommendation I make for a financial remedy can only be a symbolic payment in recognition of this impact.
33. We do not recommend ‘compensation’ as a court might, and we cannot recommend payments for lost earnings.
34. My recommendations are set out below.

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Agreed action

35. To remedy the injustice I have identified, I recommended that within six weeks of my final decision, the Council:
• apologises to Mrs M for the faults I have identified; and
• offers a symbolic payment of £4,000 to acknowledge the impact on B and Mrs M, including B’s reduced school attendance between September 2023 and May 2024 when the Council arranged additional support.
36. The Council accepted my recommendations. The Council should send us evidence it has complied with the above actions.
37. We can also make recommendations to ensure similar faults do not happen in the future.
38. We made recommendations following investigations of similar complaints earlier this year. The Council told us the actions it has taken to address the problems which led to the delays in Mrs M’s case. I will not, therefore, make further recommendations on this occasion.

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Final decision

39. I have ended my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman