Summary: Ms X complains the Council delayed finalising and issuing her child’s education, health and care plan. The Council is at fault for the delays and for not ensuring the child’s needs were met for a period of 18 months. The Council has agreed to remedy the injustice to Ms X and her child.

The complaint

1. The complainant, Ms X, complains the Council has failed to adhere to statutory timescales when reviewing Education, Health and Care Plans for her child, Y.

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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. 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)
4. 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.
5. 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)
6. 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

7. I considered Ms X’s complaint and the information she provided.
8. I considered the information the Council provided in response to my enquiries.
9. Ms X and the Council were given the opportunity to comment on a draft of this decision. Ms X and the Council advised me they had no comments to make.

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What I found

Relevant law and guidance

Education, Health and Care Plans

10. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
11. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Annual reviews

12. The Department for Education publishes statutory guidance, the SEND Code of Practice (the Code), which sets out the duties of councils. The guidance says:

• councils should arrange for EHCPs to be reviewed at least every 12 months;
• if a child attends a school, a council can ask the school to carry out the review; and
• if the plan needs to be amended, a council should start the process of amendment without delay.

Early reviews

13. A request can be made for an early review (sometimes referred to as an emergency or interim review) of an EHC Plan if there is a change of circumstances, such as a change in need or the current EHC Plan is no longer meeting needs.
14. The council does not have to agree to this request and there is no statutory right of appeal of this decision.

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What happened

15. Ms X has a child, Y, who has an Education, Health and Care (EHC) Plan maintained by the Council. Y used to attend a mainstream school but it failed to meet his needs and so the Council secured him a place at a specialist setting, School 1.
16. In November 2022 it became apparent that School 1 was unable to meet Y’s needs and a more suitable specialist placement was required.
17. An early review of Y’s EHC Plan was held on 21 November 2022 due to a request for changes to his plan because of a new diagnosis and a change to banding.
18. In January 2023 Ms X was allocated a new caseworker. Ms X advised the caseworker that School 1 was no longer meeting Y’s needs and another placement was required. The caseworker left the post after a few weeks.
19. On 30 January 2023 the Council notified Ms X it had decided to amend Y’s EHC Plan.
20. The Council advised Ms X that they were looking for another caseworker and they would notify her when one was allocated to her.
21. Ms X complained to the Council in March 2023.
22. The Council responded to Ms X’s complaint in April 2023. It said there were staff shortages within the SEND Department which had led to the delays. Ms X was told a new caseworker would be allocated to her prior to the May half term and she will be notified accordingly. Ms X did not request to escalate this complaint to Stage 2.
23. In June 2023, a new caseworker, Mr Z was allocated to Ms X. Mr Z advised Ms X that she should request an emergency review of Y’s EHC Plan and add a change of placement. The emergency review was held on 3 July 2023. Ms X says Mr Z advised her that once the emergency review had taken place he would be able to speed matters along because of the length of time it has taken and the urgent need for a change of placement.
24. Ms X contacted the Council on 19 July 2023 and she was advised that because she had an allocated caseworker matters should progress quickly and she would hear from Mr Z soon. But on 20 July 2023, Ms X was advised that Mr Z would be leaving his post from 21 July 2023 and Ms X will have to wait for another caseworker to be allocated to her. This caused Ms X a lot of frustration and she submitted another complaint to the Council on 20 July 2023.
25. The Council upheld Ms X’s complaint in September 2023. It apologised for the significant delays in processing the annual reviews and it also apologised for the difficulties she had experienced communicating with the service. The Council said a new caseworker had been allocated to her and they would contact her.
26. In October 2023, Ms X requested her complaint be escalated to Stage 2.
27. Ms X brought her complaint to the Ombudsman but we could not consider it at this point because it had not exhausted the Council’s complaints process. The Council advised the Ombudsman that it had until 22 November 2023 to respond to Ms X’s complaint at Stage 2.
28. The Council consulted with School 2 on 9 November 2023. It responded to say it had no places available until September 2025.
29. The Council responded to Ms X’s complaint at stage 2 on 22 November 2023. It upheld her complaints and it accepted the delays she had experienced were unacceptable.
30. On 24 November 2023 the Council notified Ms X it had decided to amend Y’s EHC Plan.
31. Y’s final EHC Plan was issued by the Council in May 2024. It named School 3, a specialist setting for Y to start in September 2024. My understanding is that Ms X is unhappy with the Council’s decision to name School 3 and she is using her right to appeal to the SEND Tribunal.

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Analysis

Early review of Y’s EHC Plan in November 2022

32. This review was held due to a new diagnosis and therefore changes to Y’s EHC Plan were required to reflect this. The Council should have issued Y’s final EHC Plan by 13 February 2023, but it failed to do this. The Council is at fault.

Emergency review of Y’s EHC Plan in July 2023

33. This emergency review was held because Y’s placement at School 1 was breaking down and Ms X was of the view that a change in placement was required urgently. The Council should have notified Ms X of its decision to amend Y’s EHC Plan by 31 July 2023. The Council is at fault for failing to do this.
34. The Council notified Ms X of its decision nearly 17 weeks later than it should have. This caused a significant period of uncertainty and frustration.
35. This delay also meant that settings were not consulted sonner. The evidence shows the Council did not consult with Ms X’s preference, School 2, until 9 November 2023. Ms X is of the view that had School 2 been consulted sooner, it would have had a place for Y. I cannot say for certain if this was the case, but I do consider there was a delay of nearly four months in consulting the parental preference of setting. This delay is fault.
36. I have found further fault with the Council for failing to ensure Y’s case was progressing in the absence of a caseworker. The Council has accepted that changes in the allocated officers impacted on the service Ms X received.
37. The Council appears to have a high turnover of caseworkers in its SEN department and the evidence shows that parents and children are left to ‘sit tight’ and wait for another caseworker. The Council does not appear to have a system in place to progress cases until a permanent caseworker is found. This leaves parents with a great degree of uncertainty about their child’s education and in this case, where the Council decided to amend Y’s EHC Plan, it left him without the appropriate SEN provision for 18 months. I have recommended service improvements for the Council to address this issue.

The injustice to Y and Ms X

38. Due to the faults identified above, Y has not had an EHC Plan that reflects his needs for 18 months. A consequence of this is that he has not had his needs met for 18 months as he has not received the SEN provision he should have been receiving. The SEN provision in Y’s final EHC Plan, that he should have received sooner if it was not for the delays, focuses on emotional regulation. There is ample evidence that Ms X has struggled to manage Y’s emotional dysregulation in the home during this period. Therefore, I consider the impact of this loss of provision is a significant injustice to Y and warrants a remedy payment at the higher end of the scale to reflect the impact on not only Y but also to Ms X.
39. Ms X’s frustration was further exacerbated by the difficulties in communicating with the Council. Ms X had at least three caseworkers allocated to her in a ten-month period. This was a significant period for Y due to a new diagnosis and amendments required to his plan to meet his needs. It was also a period where an emergency review was requested for a change of placement. The Council should have had a system in place to progress urgent cases and not allow them to drift unnecessarily.

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Agreed action

40. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise to Ms X for the identified faults and injustice caused to her and Y;
• Pay Ms X £1800 for the distress, uncertainty and frustration caused through delays in production of Y’s EHC Plan for 18 months outside of the statutory timescales;
• Pay Ms X £6000 in recognition of the impact of the lost special education provision on Y. This figure is comprised of approximately £1200 for each term from November 2022 to when Y’s EHC Plan was issued in May 2024.
41. The Council has also agreed that, within three months of this final decision, it will review the reasons for such high staff turnover within the SEN department and formulate an action plan to address these issues and implement a process whereby urgent cases are not left to drift when a caseworker is absent.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. The Council is at fault and the injustice caused by the faults is significant. The Council has agreed to our recommendations to remedy the injustice caused. Therefore I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman