Summary: Ms X complained that the Council delayed issuing her child’s final (amended) Education, Health and Care Plan. We found fault causing injustice. The Council had apologised to Ms X but agreed to make a further payment to her to fully remedy the injustice caused.

The complaint

1. Ms X complained that the issuing of her child, Y’s, final (amended) Education, Health and Care (EHC) Plan, naming a new school (specialist provision), was subject to significant delay. The delay caused Ms X and Y uncertainty and distress.
2. Ms X also complained that, if the Plan had been issued sooner, she would not have had to drive Y to and from the new school as home-to-school transport would have been in place.
3. The Council accepted there had been a delay and offered Ms X a symbolic payment in recognition of this. Ms X considered the remedy to be insufficient and asked us to investigate.
4. Ms X also complained about the Council’s handling of her complaint.

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The Ombudsman’s role and powers

5. 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)
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 this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I have:
• considered Ms X’s written complaint and supporting papers, including all of the complaints correspondence;
• talked to Ms X about the complaint;
• given Ms X and the Council the opportunity to comment on a draft version of this statement before I made my final decision.

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What I found

Legal and administrative background

Education, health and care plan

9. A child or young person with special educational needs (SEN) 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 First-tier Tribunal (Special Educational Needs and Disability) or council can do this.

Reviewing EHC Plans

10. 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) 
11. 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.
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.

What happened

13. Below is a summary of events that are either relevant to my investigation or are included to provide context. It is not an exhaustive chronology of every exchange between parties.
14. An annual review of Y’s EHC Plan was carried out in February 2024. The Council issued an amendment notice on 15 March.
15. Ms X chased repeatedly (weekly, and later daily) for progress on the final EHC Plan.
16. Y started at a new school on 10 June, while still formally on roll at the previous school.
17. The final (amended) EHC Plan was issued on 19 July, naming the school of parental preference (that Y had already begun attending).
18. Ms X complained on 24 July about the delay in issuing the final Plan, and the distress and anxiety that had caused to her and her family. She also complained about the fact that she had been unable to apply for school transport for Y until the final Plan was issued, meaning that she had been required to transport Y to and from school by car for the six weeks between starting at the specialist provision on 10 June, and the end of term. This had caused Mrs X stress because of having to take time away from work, and uncertainty about how long her employer would be understanding of her departure from her contracted hours. It had also caused her a measurable financial loss in terms of the costs of providing the transport.
19. The Council responded at stage one of its complaints procedure on 14 August. It accepted and apologised for the fact there had been a delay in issuing the amended Plan. It did not address the transport issue.
20. Ms X complained further on 16 September, stating that the stage one response had not been sufficiently detailed, and had not addressed the matter of transport.
21. The Council responded at stage two of its complaints procedure on 16 October, explaining the reasons for the EHC Plan delay in more detail and offering a further apology. It also offered a symbolic payment of £200 in recognition of the time and trouble Ms X had spent in pursuing the Council, and in recognition that the stage one response was inadequate.
22. The Council said it couldn’t verify whether home-school transport would have been in place by Y’s start date at the new school, had the EHC Plan been issued on time, but offered a “symbolic” payment in recognition of Ms X’s transport costs. The sum offered was exactly equivalent to the HMRC tax-free mileage rate for one journey to and from the school each day.
23. Ms X wrote to the Council again on 17 October, saying that it still had not understood her complaint correctly in two respects. She also noted that the Council had offered to reimburse her for only one journey to and from school each day, rather than two. She asked whether the Council expected her to wait outside the school between 8.30am and 3.15pm each day, five days a week
24. The Council replied on 23 October, conceding on both outstanding concerns that Ms X had raised. However, it said the “amount proposed regarding transport costs is not a reimbursement of actual costs – rather it is a symbolic payment, as advised by the LGSCO, in recognition of the inconvenience caused to [Ms X and her] family”.
25. Ms X approached the Ombudsman in November. She said she wanted the Council to “improve [its] complaints process so that it reaches the correct conclusion and offers appropriate remedies at Stage 1. Pay the remaining 50% travel expenditure which has not yet been reimbursed.”

Analysis

EHC Plan delay

26. As an amendment notice was issued on 15 March 2024, the final (amended) EHC Plan should have been issued by 10 May. A reviewed and amended EHC Plan was issued on 19 July 2024, a delay of 10 weeks, which was fault on the Council’s part.
27. I find the avoidable delay was frustrating for Ms X, put her to avoidable time and trouble in chasing for an outcome, and delayed her ability to appeal any amended final plan, had that proved to be necessary. And so, I find the Council’s fault caused her injustice.
28. Fortunately, Y’s education was largely unaffected as she was able to start at the preferred specialist provision on the date planned, without a formal placement having been agreed.
29. The Council has offered a symbolic payment of £200 for the time and trouble Ms X spent chasing the Council throughout the 10-week period of the delay, and pursuing her complaint in the face of inadequate and inaccurate responses from the Council. Along with the apologies already offered, and because Y’s change of educational placement proceeded as planned, I consider this to be sufficient remedy for that aspect of Ms X’s experience.
30. I have decided not to make a service improvement recommendation that the Council should review how it deals with reviews of EHC Plans. That is because, as the Council explained in its responses to Ms X’s complaint, the Council’s SEN team is already subject to a significant improvement programme.

Transport costs

31. The Council said it couldn’t verify whether home-school transport would have been in place by Y’s start date at the new school, had the EHC Plan been issued on time. However, Ms X has provided an account of how the Plan issue date of 19 July resulted in transport being confirmed on 16 August. Therefore, on the balance of probabilities a timely EHC Plan, issued by 10 May, would have resulted in funded transport being in place by Y’s start date of 10 June.
32. When someone has suffered an injustice as a result of a Council’s fault, we try to put them back in the position they would have been had that error not occurred. The Council says it has offered Ms X a symbolic payment in recognition of her avoidable travel costs, in line with our guidance on remedies, but symbolic remedies alone are not always appropriate in cases of quantifiable financial loss.
33. Our guidance on quantifiable financial impact, included in our Guidance on Remedies, states:

“Because of the fault, the complainant may have incurred avoidable expenses for items such as travel to school or extra help at home. If we decide these expenses were reasonable and arose directly as a result of the fault we have identified, then we may include a refund in the remedy.”

34. Our approach is always to ask what would likely have happened but for the fault we have identified. In this case, I have found that, but for the Council’s fault, home-school transport would most likely have been in place for Y by the school start date of 10 June. Ms X would not, therefore, have occurred any travel expenses for transporting her child to and from school during those six weeks. I therefore recommend that the Council should seek to return Ms X to the position she would have been in if not for the Council’s fault by reimbursing all of her transport costs, rather than the half it has already paid.

Complaint handling

35. The Council’s stage 1 response was poor: although it accepted fault and apologised, it provided no explanation for the delay in issuing the final EHC Plan. It should have been obvious to the Council that a parent who submitted such a detailed complaint would expect a detailed response.
36. However, the Council made good its errors at stage two and in its additional final response. It provided explanations, accepted fault in its earlier handling, and made attempts to remedy the injustice caused.
37. And so, I find that any injustice caused to Ms X by the poor handling of her complaint in the initial stages was remedied throughout the remainder of the complaints process.

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Action

38. To remedy the remaining injustice caused by the identified faults, and within four weeks of my final decision, the Council should make payment to Ms X of a further £272.70 for costs incurred in transporting Y to and from school each day for six weeks.
39. This payment is in addition to those already made by the Council to Ms X.
40. The Council should provide us with evidence it has complied with the above action.

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Decision

41. I have found fault by the Council causing injustice. The Council has agreed to the recommended action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman