Summary: Mr X complained about the Council’s handling of his request to change the educational placement named in is child’s Educational, Health and Care Plan. We found the Council at fault in reviewing the Plan and dealing with Mr X’s resulting complaint. These faults caused Mr X avoidable distress and put him to avoidable time and trouble. The Council agreed to carry out a new review, apologise to Mr X and pay him £600 in recognition of the injustice caused by its avoidable delays and other faults.

The complaint

1. Mr X complained about the Council’s handling of his request to change the educational placement named in his child’s Education Health and Care Plan (EHC Plan) because of its:

• Delay completing the 2024 review the EHC Plan and deciding whether to change the placement.
• Inadequate communication throughout the review.
• Delay dealing with and failure fully to uphold his complaint about the review procedure.

2. Mr X said what happened meant his child missed the opportunity of moving to his preferred school for the academic year starting September 2024. And the time taken to deal with the Council also detracted from his family life.
3. Mr X wanted the Council to complete the annual review of his daughter’s EHC Plan and fully uphold his complaint.

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The Ombudsman’s role and powers

4. 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)
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. 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 the final decision on this complaint with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I considered evidence provided by Mr X and discussed the complaint with him. I asked for and considered evidence provided by the Council. I also considered relevant law, policy and guidance. This included the Special Educational Needs and Disability Regulations 2014 (the SEND Regulations). And, the Government’s Special Educational Needs and Disability Code of Practice, 2015 (the SEND Code). I shared Council information with Mr X. I also gave Mr X and the Council an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

What I found

Background

Special Educational Needs

9. A child with special educational needs (SEN) may have an 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 First-tier Tribunal (Special Educational Needs and Disability) or the council can do this. (I refer to this First-tier Tribunal as ‘the SEND Tribunal’ in this decision statement.)
10. The council must arrange to review an EHC Plan 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 and the educational placement. A review meeting must take place. The procedure is complete when the council issues a decision about the review.

11. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Where the council wants to amend the EHC Plan, it must send the child’s parent a copy of the existing (non-amended) plan and a notice detailing the proposed amendments. The council must also include copies of any evidence to support the proposed changes. (See regulation 22(2) of the SEND Regulations and paragraph 9.194 of the SEND Code.) Case law sets out this should also happen within four weeks of the review meeting. And, to complete the review, any final amended EHC Plan must be issued within 12 weeks of the review meeting. (See regulation 20(10) of the SEND Regulations and paragraph 9.176 of the SEND Code.) 

The Council’s complaints procedure

12. The Council has a two stage complaints procedure. At stage 1 the relevant Council service manager should respond to the complaint within 15 working days. The complainant has a calendar month to ask the Council to consider the complaint at stage 2. The complainant must give written reasons explaining why the stage 1 response was unsatisfactory. At stage 2, a senior Council manager reviews the complaint and should reply within 20 working days. At both stages 1 and 2 the Council may tell the complainant it needs more time to reply. In doing so, it will give a reason for needing more time and the date by which the complainant may expect to receive its response.

A summary of what happened

13. Mr X’s child (in this statement called ‘C’) had an EHC Plan. C’s EHC Plan had first been issued earlier in the academic year when C’s school (‘the School’) started an early (well within 12 months of issuing the new Plan) review. At the review meeting, Mr X raised the possibility of C moving to another school. Over the following week, Mr X confirmed his wish for C to move and named two alternative schools. The School sent the Council the paperwork from the review meeting. The paperwork included information about Mr X’s preference for an alternative placement for C. Mr X also contacted the Council seeking urgent action on changing C’s school placement.
14. The Council wrote to Mr X about a week later explaining it had had to reallocate C’s case to a new caseworker. The Council said the review paperwork did not show the School had concerns about C’s placement. However, it would consult Mr X’s two preferred schools, which would have 15 days to respond.
15. One school responded about a week later, declining to offer C a place.
16. A few days after the school consultation response date, Mr X emailed the Council, chasing for an update about a new placement for C. Mr X received an ‘out of office’ reply from the new caseworker. Two days later and having sent two chaser emails to the Council’s SEN service, Mr X made a formal complaint. The complaint concerned the Council not responding to emails and hindering C’s move to a new school.
17. The Council replied the next day saying the new caseworker was now also away from the office and naming a third officer to handle C’s case. The Council also said it had yet to hear back from one of Mr X’s preferred schools and would chase it for a reply. The Council gave Mr X a date by which it would update him. It also explained its time targets for responding to contact from residents, which varied from five to ten working days. (Mr X contacted the Council expressing dissatisfaction with its comments about responding to his emails.) The Council then acknowledged Mr X’s complaint and said it aimed to respond within 15 working days.
18. Sixteen working days after acknowledging the complaint, the Council apologised to Mr X and said it needed more time to respond to his complaint. The Council sent its response the next day, apologising and partially upholding Mr X’s complaint. The Council said staff absences and the need to reallocate Mr X’s case had contributed to delay in proactive communication but it had met its time targets for responding to contacts. The Council said it would continue to chase his preferred school for its consultation response but anticipated some delay because of school holidays. The Council also said it would issue its formal decision letter on the review by the end of the week.
19. Mr X asked the Council to consider his complaint at stage 2 of its complaint procedure. He raised various points linked to communications about C’s review, including the Council’s delay in securing a consultation response from one of his preferred schools. The Council replied the following day saying it aimed to issue its stage 2 response within 20 working days.
20. The day before the Council’s stage 2 response was due, it contacted Mr X, apologising, and saying it needed more time to respond. About 10 days later, Mr X chased the Council for its reply and sent a further five chaser emails over the following three weeks. A Council complaint officer replied to the first three chaser emails apologising for the delay and saying it was chasing the service department for a response. The Council sent its stage 2 response the day after Mr X sent his sixth chaser email.
21. The Council partially upheld Mr X’s stage 2 complaint. The parts of the complaint either partially upheld or not upheld concerned:

• Delay in updating Mr X about the school consultation response it received, which it said was caused by the then case officer’s absence from the office.
• Consultation with the School about C’s placement, which it said it must do in considering any alternative placement.
• The review procedure that, although ‘early’ rather than ‘annual’, which it said was correctly followed but remained incomplete.

The Council apologised for its delays, including in sending its stage 2 complaint response. It also said it would urgently follow up the remaining consultation response from Mr X’s preferred school. The Council said it would update Mr X on progress and, once it had the remaining school response, it would arrange a panel hearing to consider C’s placement. It would send Mr X its review decision notice after the panel hearing. However, it accepted it should have sent the decision notice within four weeks of the review meeting. It also had not kept its promise quickly to issue the delayed decision notice after it sent its stage 1 complaint response.

22. The Council signposted Mr X to the Ombudsman if he was not satisfied with its response. Mr X complained to us.
23. A few days after sending its stage 2 reply, the Council received a consultation response from Mr X’s other preferred school. The school said it had sent its response when first consulted. The school did not offer C a place but said alternative provision was available in its Resource Base. It gave information about children attending the Resource Base and said it could not meet all C’s SEN. The school strongly recommended Mr X visit before accepting a placement for C at the Resource Base.

What the Council told us

24. The Council recognised its significant and avoidable delay in completing the review of C’s EHC Plan. And a review of its files showed it had not put C’s case to its panel or issued a decision notice. The Council accepted this was a significant failing.
25. The Council said a new placement for C might have been theoretically possible. However, both Mr X’s preferred schools had provided negative consultation responses. And the School considered it was meeting C’s needs. With hindsight, it considered a timely review would not have resulted in a changed placement for C for the academic year 2024/2025. The Council’s position was and remained that the School provided a suitable education for C. However, the failure to issue a decision notice and complete the review, keeping C’s original EHC Plan, meant Mr X had been denied his SEND Tribunal appeal rights.
26. The delay in C’s case reflected wider challenges facing its SEN services. And it had completed few EHC Plan reviews on time over the preceding year. It had been working with the Department for Education on an action plan to improve its SEN services, focusing on EHC needs assessments. In response to delayed EHC Plan reviews, it had now prepared an improvement plan, with a dedicated team of officers, to focus on that backlog. It had retrained officers and they were now using a centralised data management system, which helped them keep track of cases against legal timescales. It was reviewing its guidance on the review procedure to ensure it communicated clearly with interested parties to better manage and enforce expectations. It expected to clear its backlog of EHC Plan reviews in summer 2025. It was now meeting legal timescales in processing all new review cases and committed to maintaining this standard of work.
27. The Council recognised it had not met its complaint response time targets nor given Mr X reasons for this or revised response dates. Its data showed more delay in complaint handling during 2024, which was caused by staff shortages and pressures on services. The Council set out the steps it had since taken to overhaul its complaint procedures, which now included weekly review meetings to identify any delays. Officers had received training in the new procedures. It no longer had a backlog of SEN complaints and was now consistently meeting timescales when dealing with new SEN complaints.

Consideration

Introduction

28. Our role is not to ask whether the Council could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in the procedures the Council has followed to reach a decision. As a publicly funded body we also must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we may not respond to complaints in the detail a complainant might want as we do not try to address every point and question raised in a complaint. So, this statement does not, and does not need to, address or resolve every issue raised in and by Mr X’s correspondence with the Council. My focus was how the Council dealt with the review of C’s EHC Plan and Mr X’s later complaint.

The review of C’s EHC Plan

29. I recognised it would be of little or no comfort to Mr X. However, I appreciated the Council’s acceptance of its avoidable delay and failure to compete the 2024 review of C’s EHC Plan. The failure to complete the review was fault. And the delay and eventual failure to complete the review would likely have added to Mr X’s frustration with the review procedure.
30. I considered what would most likely have happened if the Council had completed the 2024 review of C’s EHC Plan. I found the balance of the evidence showed the Council would likely have decided to maintain C’s EHC Plan, keeping the School as C's placement. A decision to that effect, would have allowed Mr X to appeal to the SEND Tribunal seeking an alternative placement for C. In the circumstances, I did not find that, even if the Council had completed the review in line with legal timescales, C would have secured an alternative placement for the academic year 2024/2025. However, the failure to complete the 2024 review caused Mr X the added injustice of denying him the opportunity to appeal to the SEND Tribunal.
31. I also considered whether I should recommend any service improvements to the Council given its delay and failure to complete the 2024 review of C’s EHC Plan. However, I found no good reason to do so at this point given the steps the Council had and was taking to improve its SEN services including its EHC Plan review procedures.

Communication

32. Mr X found the Council’s communication throughout the review procedure inadequate. In responding to Mr X’s complaint, the Council had accepted shortcomings in the service it provided to Mr X. And that changes to C’s case officer had significantly impacted on Mr X’s experience of the service and resulted in a lack of continuity in communication. The Council had fully upheld this part of Mr X’s complaint and provided its sincere apologies. I therefore found the Council had accepted fault causing injustice on this part of the complaint. I also found the Council’s written apology had suitably addressed any injustice to Mr X arising from any fault in its handling of his correspondence.

Complaints handling

33. Mr X also complained about the Council’s delay in dealing with his complaint and its failure to fully uphold that complaint.
34. The evidence showed the Council just missed its time target when sending its stage 1 complaint response to Mr X. I did not find the slight time overrun was fault. However, the Council’s stage 2 response was sent about 40 rather than 20 working days after the target date. The Council had engaged with Mr X after he sent his first three emails chasing for its stage 2 response. But it did not give Mr X reasons for its delay or a revised reply date as required by its complaints procedure. (The Council also failed to explain and give a revised response date when it contacted Mr X about the minimal delay at stage 1.) I therefore found the Council failed to comply with its complaint procedure when extending its response times. And, there was avoidable delay by the Council in sending its stage 2 complaint response. I therefore found fault here.
35. The Council’s stage 1 response said it would soon send Mr X its decision letter about the review of C’s EHC Plan. No such letter was sent and still had not been sent when the Council issued its stage 2 response about two months later. At stage 2, the Council also told Mr X it would prioritise completion of C’s review and update him on any developments. However, there was no evidence the Council further progressed the review of C’s EHC Plan after it issued its stage 2 complaint response. So, the review remained incomplete when the Council responded to Mr X’s Ombudsman complaint. The Council therefore wrongly raised Mr X’s expectations and failed to keep its promises about completing the review of C’s EHC Plan when responding to his complaint. I therefore found fault here.
36. I found the faults identified at paragraphs 34 and 35 would likely have added to Mr X’s frustration with Council’s SEN service and so caused avoidable distress.
37. I considered whether I should recommend any service improvements to the Council given its handling of Mr X’s complaint. However, the Council had already acted to improve its SEN complaint handling and I found no good reason now to make any further recommendations.

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Agreed action

38. I found fault causing injustice (see paragraphs 29, 30, 32 and 34 to 36). The Council had already given Mr X written apologies in responding to parts of his complaint (see paragraphs 18, 21 and 32). So, to put right the remaining significant personal injustice to Mr X, the Council agreed (within 20 working days of this statement) to:

• Arrange the 2025 review of C’s EHC Plan and then process that review in line with legal timescales.
• Send Mr X a written apology for the avoidable distress caused by its failure to complete the 2024 review of C’s EHC Plan.
• Pay Mr X £500 being a symbolic payment to recognise the avoidable distress caused by its failure to complete the 2024 review of C’s EHC Plan and resulting denial of his SEND Tribunal appeal rights.
• Pay Mr X £100 being a symbolic payment to recognise the avoidable time and trouble arising from its avoidable delay and non-compliance with its procedures when dealing with his complaint.

39. The Council should consider our guidance on remedies in making the apology referred to at paragraph 38.
40. The Council also agreed to provide us with evidence of its compliance with the actions set out at paragraph 38.

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Decision

41. I found fault causing injustice. The Council agreed the actions at paragraph 38 to remedy any outstanding significant personal injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman