Summary: Miss X complained the Council did not meet the statutory deadline for issuing an amended Education, Health and Care Plan for her daughter which caused distress when preparing to move to a new school. We find the Council at fault for missing the deadline and not clearly responding to Miss X’s concerns which caused distress, uncertainty and frustration. The Council will make a symbolic payment to Miss X to remedy the injustice caused.

The complaint

1. The complainant, Miss X, complains the Council took too long to issue an Education, Health and Care Plan for her daughter, Y. She says the delay caused Y uncertainty which had a negative impact on her preparation for starting post-16 education at a new school.
2. Miss X is also unhappy the Council did not properly respond when she raised concerns about the delay, which caused frustration.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 the information Miss X provided and discussed the complaint with her.
8. I considered the Council’s comments and the documents it provided.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plan reviews for young people moving to post-16

10. 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. 
11. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
12. 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.
13. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

What happened

14. Y had an EHC Plan for special educational needs and attends specialist schools.
15. Y was due to move to post-16 education in September 2024. Y and Miss X had identified and applied for a place at a specialist school she wanted to attend to continue her education. They wanted the Council to review and amend Y’s EHC Plan to name the new school, by 31 March, as required by the Code. Miss X says Y needed to the certainty and time to allow her to plan the change to her new school with as little distress as possible.
16. On 31 March the Council had not gone through the necessary steps to issue Y’s EHC Plan so it missed the deadline set out in the Code.
17. Miss X said she started regularly telephoning the Council after the deadline passed to try to get updates. She said she called three or four times each week because of the negative impact the delay was having on Y. Miss X said the Council was not able to provide proper updates. She said it often passed her from one department to another, or said her caseworker was on annual leave, or there was a wait for a manager to progress the matter. Miss X said the lack of certainty was very frustrating due to the impact on Y.
18. On 17 May, Miss X spoke to the Council and said she was concerned Y might not get a place at the new school because of the lengthy delay. The Council made a written record of this call and treated this as a stage one complaint.
19. On 30 May the Council responded to Miss X’s complaint by letter. It upheld her complaint that the EHC process for Y had fallen outside the statutory timeframes and apologised. It said a consultation was sent to Y’s preferred new school on 16 April and it had responded positively. As such, the Council said it was satisfied Y’s case was in hand and that a final EHC Plan would be issued in due course.
20. The letter also provided reasons for the delay. It said it had received an unprecedented increase in in requests for EHC assessments that had were causing delays across the authority's special educational needs and disabilities (SEND) services. The Council included an explanation of impact of the national and local shortages of educational psychologists and the steps it was taking to mitigate this.
21. On 18 June 2024 Miss X sent a stage two complaint to the Council because it had not issued Y’s EHC Plan. She explained Y was due to finish school-year 11 the following week, she did not know where she would be attending school in September, and the worry was damaging her mental health.
22. Miss X also said the Council’s reference to the shortage of educational psychologists had nothing to do with the delay in this case.
23. On 26 June the Council responded to Miss X’s escalated complaint by letter. It apologised that it had not issued the final EHC Plan by 31 March. It said the delay was due to the high volumes of work the relevant team receives. It said it would issue a final EHC Plan very soon.
24. On 18 July the Council signed and issued Y’s final EHC Plan. It named the school that Y and Miss X had applied to in March. 15 weeks and 4 days had passed since 31 March when the EHC Plan should have been issued.

Analysis

The delay in issuing the EHC Plan

25. It is clear the Council failed to meet the timescale in the Code for issuing Y’s amended final EHC Plan. The Council accepted fault for this failure and apologised in its responses to Miss X on 30 May and 26 June.
26. I find the Council at fault for the delay, which lasted for 15 weeks and 4 days, and caused injustice in the form of distress and uncertainty during a particularly important period in Y’s education.

The Council’s responses to Miss X’s concerns

27. I have not seen records of the many telephone calls Miss X said she made to the Council after the deadline passed on 31 March. However, on the balance of probabilities, I find Miss X’s account of the calls she made to the Council is likely to be accurate.
28. I note the Council initiated its complaint procedure following a call on 15 May and provided written responses to Miss X’s complaints from that date. The written responses did not provide a timescale to Miss X, and included the reference to shortages of educational psychologists which was not directly relevant to the delay in this case. I find the Council at fault for not providing Miss X clearer responses to her concerns which caused injustice in the form of frustration.
29. I would ordinarily have recommended the Council apologise to Miss X and Y for the distress caused. However, the Council has already made a satisfactory apology for not meeting the statutory timescale which meets the standards we would expect.
30. In response to recent decisions we have made, the Council has agreed to develop action plans to address delays in issuing EHC plans. I therefore make no further service improvement recommendations.
31. Our guidance says a moderate, symbolic payment may be appropriate to remedy distress and uncertainty caused by fault.

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Agreed action

32. Within four weeks of the date of this decision, the Council has agreed to:

• Make a symbolic payment of £200 to Miss X in recognition of injustice caused.

33. The Council will provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation and find the Council was at fault. The Council has agreed to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman