Summary: Mrs X complained about the Council’s handling of the Education, Health and Care Plan process for Mrs B’s son following an annual review. The Council accepted it was at fault for causing delays in the process and how it communicated with Mrs B. The Council will make an apology, financial payment and service improvements to remedy the injustice its faults caused.

The complaint

1. Mrs X complains about the Council’s handling of the Education, Health and Care Plan process for Mrs B’s son following an annual review.
2. Mrs X says as a result, the family experienced distress in the form of uncertainty and frustration.

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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 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. 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)
6. 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)
7. 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

8. As part of my investigation, I have:
• considered Mrs X’s complaint and the Council’s responses;
• discussed the complaint with Mrs X and considered the information she provided; and
• had regard to the relevant law and guidance to the complaint.
9. Mrs X and the Council had the opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Education, Health and Care Plans

10. A child with special educational needs may have an Education, Health and Care (EHC) Plan setting out the child's needs and what arrangements should be made to meet them. The EHC Plan is set out in sections.
11. The Special Educational Needs and Disability Code of Practice (code of practice) sets out the process for carrying out EHC Assessments, producing EHC Plans and reviewing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• within four weeks of a review meeting, a council must notify the child's parent of its decision to maintain, amend or discontinue the EHC Plan;
• where a council proposes to amend an EHC Plan, it should start the process of amendment without delay. It must send the child's parent or the young person a copy of the existing Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes;
• following comments from the child's parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents.
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child's EHC Plan. The right of appeal is only engaged when the final amended Plan is issued. If the council decides not to amend the Plan, it must notify the child's parent of their right to appeal that decision and the time limit for doing so.

What happened

13. Mrs B’s son (Z) has special educational needs. He attends a mainstream school and has an EHC Plan.
14. An annual review of Z’s EHC Plan took place in September 2023.
15. Mrs X and Mrs B chased the Council for an update on the outcome of the review and amended draft EHC Plan throughout January 2024.
16. On 9 February, the Council issued an amendment notice to Z’s parents.
17. On 27 February, Mrs B’s solicitor sent back comments on the EHC Plan amendments.
18. On 28 March, Mrs X complained to the Council on behalf of Z’s parents, about the delay in the EHC process. Mrs X said the school had returned the annual review paperwork to the Council on 28 November 2023.
19. On 1 May, the Council issued a final EHC Plan for Z.
20. On 24 May, the Council responded to the complaint. The Council acknowledged that it had failed to meet statutory timescales for issuing the draft EHC Plan. The Council said it did not receive the annual review paperwork from the school until the end of November 2023. It explained that issues with staffing and Mrs B’s representative requesting an extension to provide comments added to the delay.
21. Mrs B asked the Council to escalate her complaint to stage 2. She said they asked for a five-day extension to provide comments, and this had no real bearing on the poor delivery of the EHC Plan. Mrs B also complained about poor communication, staff not providing updates unless requested or chased and the Plan being sent by secure email.
22. The Council responded to the complaint and acknowledged, it had not met the timescales for the EHC review, poor communication and wrongly used secure email to communicate with Mrs B, which meant there was insufficient time to respond to the complex EHC Plan. The Council referred to several service improvements including improving timeliness of EHC Plan processes and ensuring there is sufficient staff in place.

Analysis

EHC Plan annual review

23. The annual review of Z’s EHC Plan took place in September 2023. The Council confirmed it would continue the Plan but intended to make some changes. The statutory timescales say it had to:
• share its decision to amend Z’s EHC Plan and its draft amendments within four weeks of the annual review; and
• consider Mrs B’s comments and issue its final amended EHC Plan within 12 weeks of the annual review. This would have been in December, but the Council did not issue Z’s final amended EHC Plan until May 2024, which was over four months late.
24. The Council’s duty was to finalise Z’s EHC Plan within the statutory timescales. The Council was at fault for failing to do so for over a four-month period. The Council told Mrs B it agreed it was at fault for failing to adhere to the statutory timescales.
25. The Council also accepted its communication with Mrs B was poor. I agree with the Council’s findings. It should have ensured it had a caseworker to respond to her communication.

Z’s new final amended EHC Plan

26. I understand Mrs B was not satisfied with the final amended EHC Plan issued in May 2024. Mrs X told the Ombudsman that following a subsequent annual review in September 2024, the family are working with the Council to produce a new Plan.
27. Mrs B had a right of appeal to the SEND Tribunal to contest any disagreement about the provision listed in the amended Plan. Mrs X told the Ombudsman that Z continued to receive the provision set out in his previous Plan during the annual review process and period of delay. If Mrs B believes Z is not receiving the provision set out in his EHC Plan, she will need to complain to the Council first.

Complaint handling

28. The Council’s Complaints Policy states it will respond to the complaint within 10 working days or longer if the issues are complex. The Policy states the Council will let the complainant know when an extension is required and when they may expect a full response.
29. There was fault with the Council’s complaint handling at stage 1. This is because it responded to Mrs B outside the timescale set out in its Policy. The Council issued its stage one response almost two months after Mrs X had complained. This was fault and there is no evidence the Council communicated with Mrs X nor Mrs B about the delay.

Injustice

30. The Council told Mrs B it accepted it was at fault for the delay in finalising Z’s EHC Plan within statutory timescales, for its poor communication and for the delay in responding to her complaint at stage 1. The Council apologised to Mrs B.
31. I am satisfied the Council’s faults caused Mrs B significant distress due to the frustration and uncertainty she experienced. She also had a delay to her right to appeal Z’s EHC Plan to the SEND Tribunal and had time and trouble to bring her concerns to the Council’s attention.

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Agreed action

32. To remedy the injustice caused to Mrs B, within one month of the final decision the Council will:
1. pay Mrs B £450 (calculated at £100 per month) to acknowledge the distress and uncertainty the Council’s faults caused her, including the time and trouble she had to repeatedly raise her concerns.
33. Within three months of the final decision the Council will also:
1.  
2. remind staff in its Special Educational Needs and Disability Service to ensure:

• the statutory timescales for the Education, Health and Care Plan process following annual reviews are always adhered to; and
• requests from parents are responded to in a timely manner. This is to ensure effective communication with those involved and to avoid unnecessary delays and distress in the process.

34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have found fault by the Council causing an injustice to Mrs B. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman