Summary: Mrs D complained about delay in the issuing of her son’s education, health and care plan. We found fault which has caused a loss of special educational needs provision, delayed appeal rights and time and trouble. The Council has agreed to apologise and make a payment to Mrs D to remedy the injustice.

The complaint

1. Mrs D complained that the Council:
1. Failed to issue an education, health and care plan for her child, B, within the statutory timescales.
2. Failed to hold an annual review within 12 months of the May 2023 review.
3. Declined to amend the occupational therapy provision in the new plan, failed to carry out the actions agreed at mediation and unlawfully left Section I of the plan blank.
2. Mrs D says as a result, the school cannot meet his needs and cannot deliver some of the provision. B therefore missed out on education for two afternoons a week in the summer term 2023/24 as he attended other provision and Mrs D had to fund this and take time off work. She says the situation has impacted B’s well-being and has caused them avoidable distress and delay in appeal rights.

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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. 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)
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. 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.
7. 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)
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)
9. 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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What I have and have not investigated

10. I am not investigating part c) of the complaint. This is because these are matters for the SEND Tribunal and, as set out in paragraph 7, the law says we cannot investigate.

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How I considered this complaint

11. I spoke to Mrs D about the complaint and considered the information she sent, the Council’s response to my enquiries and the SEND code of practice: 0 to 25 years (“the Code”).
12. Mrs D and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

13. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal.

Reviews of EHC plans

15. 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.
16. Within four weeks of the review, councils must decide whether they propose to amend the plan and notify the parent or young person of this decision.
17. 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).
18. Although the Code does not give any deadline for the issuing of an amendment notice, a 2022 high court decision says any draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review.

What happened

19. I have set out the key events. This is not meant to detail everything that happened.
20. Mrs D’s son has special educational needs, an EHC plan and was attending a mainstream primary school (“the School”). There was an annual review meeting on 19 May 2023 which recommended changes to the plan.
21. The Council should have issued a decision on 16 June of whether it agreed to amend the plan. The Council says it did not receive the report of the review meeting until 22 June. In which case we would expect it to issue its decision as soon as possible. There is no evidence it did.
22. An amended final EHC plan should have been issued by 23 August, to be in line with the case law that it should be issued within 12 weeks of the review. There is no evidence it was.
23. A draft EHC plan was issued in January 2024 and the final plan issued on 21 May.
24. A further annual review was due by 19 May 2024 but I have seen no evidence it was held.
25. Mrs D complained to the Council on 21 May. She said the delay in revising the EHC plan had meant the School had been unable to meet B’s needs. B had therefore been unable to cope with a full-time timetable and had stopped going to school full time. He had started alternative provision and play therapy two afternoons a week. Mrs D had been funding this.
26. Mrs D also said that the School had not been sufficiently funded to provide B’s SEN provision.
27. The Council upheld Mrs D’s complaint, it apologised for the delay which had been caused by high demand.
28. Mrs D came to the Ombudsman in August 2024 as she remained dissatisfied. We contacted the Council and it agreed to make a remedy to Mrs D by 23 October. It failed to do so, so we re-opened our investigation. It took the Council ten weeks to fully respond to our enquiries, a delay of five weeks.

My findings

29. There was a nine-month delay in issuing the final EHC plan after the May 2023 annual review. This is fault.
30. It is not for the Ombudsman to determine what funding the Council should provide to the School for SEN provision, but the Council must secure the SEN provision set out in an EHC plan. Until May 2024, the Council had to secure the provision set out in B’s previous EHC plan. I have seen no evidence it did not. But on the balance of probabilities, I find the delay in issuing an updated EHC plan caused B to miss out on additional and amended SEN provision for three school terms (from September 2023 to May 2024). It also delayed Mrs D’s opportunity to appeal to the SEND Tribunal. This is injustice.
31. There was an annual review in 2024. It should have been held by 19 May. This is fault and means the Council missed an opportunity to review B’s SEN provision.
32. The Council’s failure to comply with our decision of September 2024 and then its delay in responding to our enquiries is fault which has caused time and trouble to Mrs D.
33. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been. This is because it is not possible to now provide the services missed out on.
34. Our guidance on remedies says that where fault has resulted in a loss of special educational provision, we will usually recommend a payment to acknowledge the impact of that loss. My view is that the Council should pay Mrs D £1,500 (£500 per term), to be used for B's educational benefit.
35. In reaching this view I have taken into account that B was receiving some education and SEN support during this time. But I have also considered that he has special educational needs and that there is potentially time for additional provision now to remedy some or all of the loss.
36. For delayed opportunity to appeal and time and trouble caused by fault, we usually recommend moderate symbolic payments.

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Action

37. Within a month of my final decision, the Council has agreed to:
38. Apologise to Mrs D. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
39. Pay her:
• £300 to remedy the delay to her appeal rights.
• £1,500 to remedy the lost SEN provision from September 2023 to 21 May 2024.
• £200 to acknowledge the time and trouble she has been caused by delay in complaint handling.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman