Summary: Mrs L complained the Council did not review her son’s education, health and care plan for several years, and then issued an inadequate plan. However, we propose to discontinue our investigation, because we consider Mrs L should have raised this matter sooner, and because she had a right of appeal about the plan if she considered it was not suitable.

The complaint

1. I will refer to the complainant as Mrs L.
2. Mrs L complains:

• the Council did not amend her son, J’s, education, health and care (EHC) plan for four years;
• the Council then issued a final amended EHC plan for J, despite acknowledging it was not adequate, simply to meet the statutory deadline. In doing so it failed to consider two reports Mrs L had obtained and privately and submitted for the Council’s consideration; and
• the Council delayed responding to her complaint on these matters.

Back to top

The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. 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.

Back to top

How I considered this complaint

8. I considered evidence provided by Mrs L and the Council as well as relevant law, policy and guidance.
9. I also shared a draft copy of this decision with each party for their comments.

Back to top

What I found

Law and guidance

EHC plans

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. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
12. 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). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Appeal rights

13. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC plan; or any amendments, or failure to make amendments to these elements of an EHC plan.
14. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) The same restrictions apply where someone had a right of appeal to the Tribunal, and it was reasonable for them to have used that right.

Mrs L’s complaint

15. J has a physical disability with associated learning difficulties. In 2019, while he was in pre-school, the Council issued an EHC plan for him.
16. Mrs L says, over the following years, J’s primary school held annual reviews of his plan, and submitted the review reports to the Council. After each review the Council made a decision to maintain the plan, but Mrs L says she believed the Council was updating section B – which described J’s needs – to reflect developments in his condition. However, in July 2023, the Council sent her a draft amended EHC plan after the latest annual review, and she realised it had never updated the original plan.
17. Mrs L privately obtained occupational therapy (OT) and speech and language therapy (SALT) reports and submitted them to the Council, for consideration as part the review process. But the Council then issued a final amended EHC plan for J in September 2023, without considering these reports, simply in order to meet the statutory deadline. It then immediately reopened the review process, and issued further final amended plans in December, January and March, before Mrs L was satisfied with it.
18. Mrs L made a formal complaint to the Council in January 2024, but referred her complaint to the Ombudsman in August after receiving no response from the Council.

Back to top

Analysis

19. For several reasons, I have concluded we should not investigate Mrs L’s complaint. I will address each point of complaint in turn.

The Council’s failure to amend J’s EHC plan

20. Mrs L complains the Council did not amend J’s EHC plan to reflect developments in his condition, despite the information the school was providing the Council after each annual review. She says she was unaware it was not making relevant amendments because it did not issue a new draft plan until July 2023.
21. However, a decision by a council to maintain an EHC plan means it will not issue a new version of the plan, and so the Council’s failure to do this is not, in itself, evidence of fault. Each of the Council’s decisions to maintain the plan also triggered a right of appeal to the SEND Tribunal, which was available for Mrs L to use if she considered the plan should instead be amended.
22. As I have explained in paragraphs 6, 7, 13 and 14, where there is a statutory right of appeal on the same matter, the law generally expects complainants to use this instead of making a complaint to us. We can exercise discretion on this, where we consider it was not reasonable for the complainant to use their right of appeal, but I have seen nothing to suggest that was the case here.
23. And, even if it were, it is not for us to consider whether an EHC plan should be maintained or amended, which only a council or the Tribunal can decide. Even putting to one side the fact Mrs L had the right of appeal, therefore, I do not consider an investigation by us could provide a useful outcome.
24. I have therefore decided we should not investigate this element of Mrs L’s complaint.

The Council’s issue of an inadequate EHC plan

25. Mrs L says the Council issued a final amended EHC in September 2023, merely because it wished to meet the statutory deadline, and despite openly acknowledging it was inadequate in its current form. She considers the Council should instead have kept the plan at draft stage, while making the amendments necessary to make it suitable for J.
26. However, and again, as soon as the Council issued the final plan in September, it gave Mrs L the right to appeal its content to the SEND Tribunal. The Council then issued further final amended plans in December and January, neither of which Mrs L was satisfied with, but each of which again carried a right of appeal.
27. I appreciate Mrs L’s rationale for maintaining a dialogue with the Council, rather than using her right of appeal; but I do not consider this means it was not reasonable for her to use the appeal, which is the test we must apply. This being so, I have again decided we should not investigate this element of Mrs L’s complaint.

The Council’s delay in responding to Mrs L’s complaint

28. Mrs L submitted her stage 1 complaint to the Council in January 2024. It eventually responded to this in October, after she had approached us.
29. After Mrs L escalated her complaint, the Council provided a stage 2 response in November, although this only considered the delay in the stage 1 response, and none of the substantive points she had raised. The Council’s reasons for this were broadly the same as the reasons I have provided for not investigating the first two points of Mrs L’s complaint.
30. Although there was a significant delay in the stage 1 response, we will not generally investigate complaints about complaint handling, where we are not also looking at the substantive matters. As this is the only point of Mrs L’s complaint which is in our jurisdiction, therefore, we should also not investigate it.
31. I will note the Council has offered Mrs L £150, in recognition of her time and trouble arising from its poor complaint handling, but Mrs L has declined this because she does not consider it appropriate to accept a financial remedy. If we were to investigate this part of the complaint, it is likely we would suggest a similar remedy, and so Mrs L’s refusal is another reason why we should not.

Back to top

Decision

32. I have discontinued my investigation of this complaint.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman