Summary: Mrs F complained about the Council’s handling of her child’s Education between January 2022 to December 2023. We found fault by the Council for causing a delay of nearly 12 months in the Education, Health and Care plan process and how it communicated with Mrs F. We did not investigate Mrs F’s complaints about matters which occurred before January 2023 as these were late. The Council should apologise and make payment to Mrs F to acknowledge the injustice its faults caused her and X.

The complaint

1. The complainant, Mrs F, complained about the Council’s handling of the Education, Health and Care (EHC) plan process for her son (X) between January 2022 until December 2023. She said it:
• failed to adhere to the statutory timescales for the EHC plan process for X following an emergency review, and increased funding for his school outside the process;
• failed to adhere to suspensions and permanent exclusions guidance to review X’s EHC plan and consider additional support for X;
• wrongly consulted with schools with an out-of-date EHC plan in 2022 and in late 2023;
• communicated poorly with her and X’s school;
• wrongly refused to consider her complaint due to the time which had passed.
2. Mrs F said, as a result, she had experienced distress and uncertainty, and X had not received the education or special educational needs support he should have.

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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 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)
5. 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.
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. 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)

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What I have and have not investigated

8. Mrs F complained to the Council in Summer 2024 about its handling of X’s education and EHC plan process from 2022 to December 2023. She subsequently approached the Ombudsman in November 2024. Her complaint is therefore late as it relates to matters which occurred more than 12 months before it was brought to our attention.
9. I have found it appropriate to exercise my discretion to consider Mrs F’s complaint from January 2023 until December 2023 when a final amended EHC plan was issued for X. This is because she experienced a loss in her family which is an understandable reason for the delay in bringing her complaint at the time.
10. I have not investigated Mrs F’s complaint about matters which occurred before January 2023. This is because these matters are late, and I have seen no good reason why these could not have been brought to our attention sooner. I will therefore not consider Mrs F’s complaint about:
• the annual review, the EHC plan process, and consultations with schools in 2022; and
• the Council’s handling or involvement in X’s suspensions from School in 2022, and how it communicated with Mrs F.
11. In addition, I have not investigated any concerns Mrs F may have about the December 2023 final amended EHC plan. This is because at that time she had appeal rights to the SEND Tribunal.

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How I considered this complaint

12. I considered evidence provided by Mrs F and the Council as well as relevant law, policy and guidance.
13. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
14. 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 found

Relevant law and guidance

Special educational needs

15. 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.
16. 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

17. 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.
18. 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.
19. 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).
20. 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.

Background

21. Mrs F has a child, X, who has been diagnosed with conditions which impacts his ability to receive an education and may cause behavioural issues. He has an EHC plan which sets out his needs and the special educational needs support he should receive.
22. X has attended a primary school (school Y) since his first EHC plan was issued. He has continued to experience difficulties in school, which has led to a reduced timetable and several temporary exclusions. He was at risk of permanent exclusion throughout. His EHC plan said an emergency annual review should be held if the plan was unsuccessful and behavioural issues could not be managed.
23. In January 2022 an annual review of X’s EHC plan was held. The Council subsequently agreed to amend X’s EHC plan. By summer 2022 the Council had consulted with other schools and discussed placements with Mrs F, but X remained at school Y. The Council increased the funding to the school.
24. X continued to experience difficulties while at school Y in 2022. He had two temporary exclusions in the autumn term, and Mrs F complained to school Y about its handling of X’s support.
25. In late 2022 a meeting at X’s school took place. This was to discuss X’s reintegration plan and possible changes of placement. Mrs F attended with support from Special Educational Needs and Disabilities, Information, Advice and Support Service (SENDIASS). She asked for consultations to be sent to another school (school Z).
26. In January 2023 the Council issued a draft amended EHC plan for X and offered Mrs F to comment. X’s school placement changed from school Y to school Z, which he started to attend.
27. Mrs F experienced a loss in her family in early 2023. This meant she was unable to engage in the EHC plan process.
28. X’s experience at school Z since January 2023 was positive and Mrs F felt the school was supporting his wellbeing needs. He transitioned back into mainstream class within school Z in September 2023 but continues to have access to its resource unit for support.
29. In December 2023 the Council issued X’s final amended EHC plan. This listed school Z until Summer 2024, and a mainstream secondary school from September 2024.
30. Shortly after, an annual review took place. In February 2024 the Council agreed to amend X’s EHC plan again, and his final amended EHC plan was issued in March 2024 with no changes to the school placements.

Mrs F’s complaint

31. Mrs F was unhappy with how the Council had handled X’s education from 2022 until December 2023. In July 2024, following receipt of her data request to the Council, she complained:
• it had failed to adhere to the statutory process for X’s EHC plan since 2022. This included a failure to complete the January 2022 annual review within statutory timescales as a final EHC plan was not issued until December 2023;
• when it issued X’s draft EHC plan in January 2023 it took until December 2023 to issue X’s final amended EHC plan, and no annual review took place;
• it had failed to keep oversight of X’s case and communicate appropriately with her and X’s school;
• it had made changes to the funding school Y received in 2022 outside the EHC plan process, and it consulted with schools using an out-of-date EHC plan in 2022 and in 2023.
32. In response the Council did not uphold Mrs F’s complaint. It explained this was because her complaint was about matters which occurred more than 12 months ago and was therefore late. It did not accept her reasons for the late complaint, which was she was unaware of the issues until she received the response to her data request. Although, it did not investigate her concerns about how it had communicated with her and X’s school, it acknowledged the concerns and had raised this internally to ensure communication was appropriately responded to.
33. Mrs F escalated her complaint to the Council. She explained X had school exclusions in 2022 and the family had a bereavement in early 2023 which impacted her ability to bring her complaint. She trusted the Council to be progressing X’s EHC plan since January 2022.
34. Ther Council did not change its view. It found her complaint was late and it did not need to consider complaints made about matters which occurred more than 12 months before it was brought to its attention. It explained this was in line with the Statutory Guidance for Local Authorities Children Services on Representations and Complaints Procedures.
35. In November 2023 Mrs F asked the Ombudsman to consider her complaint.

Analysis and findings

EHC plan process

36. I have considered the Council’s handling of the EHC plan process for X from January 2023, my reasons for not exercising discretion to consider Mrs F’s complaint about earlier points are set out in paragraph 10.
37. The Council issued a draft amended EHC plan for X in January 2023, which was already outside the statutory timescales for the EHC plan process to be completed since the January 2022 annual review, as the plan should have been issued within 12 weeks.
38. I found the Council was therefore at fault for:
• the ongoing delay from January 2023 until December 2023 when X’s final amended EHC plan was issued;
• although a meeting involving the school and Mrs F took place in late 2022, no formal annual review was held in early 2023;
• the school consultations that took place in 2023 were conducted with an outdated or draft EHC plan, which was not appropriate; and
• its ongoing failure to recognise X’s EHC plan was significantly out of date and required urgent action to complete the statutory EHC plan process.
39. I am satisfied Ms F experienced some distress due to the uncertainty this caused. She also had a delay of her appeal right to the SEND Tribunal for nearly a year.
40. X had started at school Z from January 2023, as agreed with Mrs F. The evidence shows he the placement worked well and his ability to engage in school improved throughout the year. The injustice he experienced from not having an updated final amended EHC plan was therefore limited, and I cannot say whether the provision he received would have been different at the time. However, I found he had a loss of opportunity to receive some special educational needs provision specific to his needs.
41. I have not made service improvement recommendations about the Council’s handling of the EHC plan process. This is because we have recently made recommendations on similar cases relating to delays, communication, and adhering to the statutory processes, which the Council is implementing.

Communication with Mrs F

42. The Council did accept it could have communicated better with Mrs F. Based on the evidence available, the Council’s failure to communicate relates largely to changes in caseworkers allocated to X’s case and its failure to adhere to the statutory processes for amending X’s EHC plan.
43. While the Council did communicate with Mrs F, its failure to do so promptly and consistently was therefore fault, which caused her some additional uncertainty and frustration.

Complaints handling

44. The Council provided its responses to Mrs F’s complaint in 2024, which was it would not consider her complaint as it had been brought late.
45. While the Council was entitled to reach its view Mrs F’s complaint was late. I found it:
• based its decision on incorrect policies. This is because it referenced statutory guidance and its own policy, which both related to the statutory children’s complaints process. It should have based its decision on its corporate complaints policy;
• failed to properly consider and respond to all of Mrs F’s reasons for bringing her complaint late. This is because there is no evidence it took account of her bereavement in early 2023; and
• it did not address Mrs F’s concerns about the ongoing delay in finalising the EHC plan process for X from at least Summer 2023, which was within the 12-month period of the events complained about.
46. I cannot say what the Council’s decision would have been had it properly considered Mrs F’s reasons for bringing her complaint late. However, I am satisfied its failure to do so and provide reasons for its decision, caused Mrs F some unnecessary frustration and uncertainty.

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Action

47. To remedy the injustice the Council caused to Mrs F and X, the Council should, within one month of the final decision:
1. apologise to Mrs F in writing to acknowledge the injustice its faults caused her and X between January 2023 to December 2023;

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 in my findings.

2. pay Mrs F a symbolic payment of £300 to acknowledge the distress and uncertainty she experienced as a result of the delayed and poor handling of the EHC plan process for X and her delayed appeal rights;
3. pay Mrs F a £100 to acknowledge the time and trouble she had to pursue her complaint as a result of the Council’s failure to properly consider her reasons for bringing her complaint late; and
4. pay Mrs F a further symbolic payment of £300, to use as she sees fit for the benefit of X, to acknowledge the loss of opportunity X had to receive special educational needs provision which may have been tailored more appropriately to his needs if the Education, Health and Care plan process had been finalised and shared with his school as required without delay.

In total the Council should pay Mrs F £700.

48. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4.  
5. remind its complaints handling staff to ensure all reasons for late complaints are properly considered and the appropriate policy regarding such complaints is referenced in its responses.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I have completed my investigation with a finding of fault by the Council, which caused Mrs F and X an injustice. I have not investigated Mrs F’s complaint about matters which occurred before January 2023 as this part of her complaint was late.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman