Summary: Mrs X complains the Council failed to meet statutory timescales when finalising her child’s education, health and care (EHC) Plan. The Council is at fault for the delay in issuing the final EHC Plan and failing to communicate with Mrs X effectively. It has agreed to provide Mrs X a financial remedy to acknowledge the delay and avoidable distress caused.

The complaint

1. Mrs X complains the Council delayed in finalising her child’s education, health and care plan following an emergency review and it failed to communicate with her effectively. Mrs X says this caused avoidable distress, delayed her right of appeal and it meant her child did not receive suitable education.

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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. 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)
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 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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What I have and have not investigated

7. Mrs X has submitted two complaints that have been through the Council’s complaints process. The matters complained of are interlinked therefore I am investigating both complaints in this investigation.
8. As stipulated above in paragraph 3, I am unable to investigate Mrs X’s point of complaint regarding the setting/placement the Council named in Section I because this decision carries a right of appeal to the SEND Tribunal. I understand Mrs X has used this right of appeal.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

11. 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. 
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 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) 
13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
14. 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.
15. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

What happened

16. Mrs X has a child, Y, who has an Education, health and Care (EHC) Plan maintained by the Council. In September 2023, Y started Reception at a mainstream school, School 1.
17. School 1 implemented various strategies to engage Y but it struggled to provide him with an education in the classroom. An emergency review was requested.
18. In November 2023 an emergency annual review of Y’s EHC Plan was held.
19. In April 2024, the Council responded to Mrs X’s complaint and apologised for not sending the amendment notice within four weeks of the emergency annual review meeting. The Council said it would send the draft EHC Plan to Mrs X by 26 April 2024. The draft EHC Plan was sent to Mrs X on 24 April 2024.
20. Y’s EHC Plan was finalised on 24 August 2024. It named School 1 in Section I. Mrs X is unhappy the Council has named the school that was unable to meet Y’s needs and has used her right to appeal to the SEND Tribunal.
21. Mrs X submitted a further complaint to the Council on 9 September 2024 (Complaint 2). Mrs X was unhappy the Council had named School 1 on Y’s final EHC Plan and she was unhappy with the Council for not responding to her requests for information regarding consultations.
22. On 19 September 2024 Mrs X brought her complaint to the Ombudsman because she was unhappy with the Council’s response to her complaint.
23. On 7 October 2024, the Council responded to Complaint 2. It said it had previously addressed Mrs X’s complaint regarding communication. The Council accepted it had not sent the consultation feedback to Mrs X in a timely manner and it said it would learn from this. It attached the consultation feedback to the complaint response.
24. On 8 October 2024, Mrs X requested to escalate her complaint to Stage 2 of the Council’s complaints procedure. The Council responded on 24 October 2024 and apologised for not fully addressing her complaints at Stage 1 regarding communication. The Council’s investigation found it had raised Mrs X’s expectations unduly and it upheld her complaint. The Council identified ways to improve its service and said it would implement these actions.
25. Mrs X remained unhappy with the Council’s actions and its response to Complaint 2 and brought her ongoing concerns to the Ombudsman again on 7 November 2024.

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Analysis

Y’s EHC Plan

26. Following the emergency annual review of Y’s EHC Plan, the Council should have issued the amendment notice within four weeks. The Council failed to do this and it is fault.
27. The Council significantly delayed issuing Y’s final EHC Plan by nearly seven months. This is fault. Mrs X chased the Council on several occasions for the EHC Plan. This caused frustration and delayed Mrs X’s appeal rights. The injustice caused to Mrs X warrants a remedy.
28. The Council’s response to Mrs X’s complaint acknowledges the delay and apologises but it does not state the reasons for the delay. For this reason, I have made a recommendation for the Council to investigate the reasons for the delay and identify what actions it can take to ensure it meets statutory timescales with regards to the EHC Plan process following reviews.

Communication and complaint handling

29. The Council initially did not properly address Mrs X’s complaint about communication from the Council. This caused frustration and avoidable time and trouble. At Stage 2, the Council acknowledged this failure and apologised for the shortfall in the original investigation.
30. The delay in receiving the draft EHC Plan meant Mrs X repeatedly chased the Council. After investigating the concerns around communication, the Council acknowledged that the standard of communication fell short of expectations.
31. I understand the Council has taken action to improve its service when responding to complaints and also to address the quality of communication with parents. I am satisfied the actions taken by the Council are an appropriate response. For this reason, I have not recommended any service improvements with regards to communication but I have recommended the Council remedies the injustice directly caused to Mrs X.

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Agreed Action

32. To remedy the injustice caused by the faults identified above, the Council has agreed that within four weeks of this final decision, it will:
• Pay Mrs X £700 for the delay in issuing Y’s final EHC Plan;
• Pay Mrs X £250 for the avoidable distress caused by the lack of effective communication and the avoidable time and trouble caused by the Council’s failure to fully address her initial complaint.
33. The Council has also agreed that within three months of this final decision, it will investigate the reason for the delay in issuing Y’s EHC Plan and identify actions to implement to ensure it meets statutory timescales with regards to EHC Plans following reviews.
34. The Council will provide us with evidence it has complied with the above actions.

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Decision

35. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman