Summary: Ms X complained about the Council’s handling of her son, A’s, Education, Health and Care Plan and communication with her about it. We found the Council has already taken appropriate action for its poor communication with Ms X and delays in the annual review process between. We found no other fault.

The complaint

1. Ms X complains the Council failed to:
1. carry out the key stage three transfer process since 2022;
2. failed to consult with schools to secure an appropriate education placement since 2022;
3. initiate Social Care Assessment in 2022;
4. complete her son, A’s, EHC Plan Annual Review from January 2023 within the statutory timeframe;
5. complete and issue the final EHC Plan following a SEND Tribunal Order from July 2024;
6. answer all the points of her complaint;
7. communicate with her effectively about her complaints.
2. Ms X says the Council’s actions caused her avoidable distress and frustration. She says that she had to spend a considerable amount of time chasing the Council for responses and coordinating communications with schools as well. Ms X suspects that the Council’s poor communications may have led to her son’s school place breakdown as it also became frustrated with the lack of communications and engagement from the Council.
3. Ms X would like the Council to issue a correct final EHC Plan for her son, investigate why the failings happened and explain why the Council was not responding to communications from her and the school.

Back to top

The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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.
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
10. 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)

Back to top

What I have and have not investigated

11. Ms X complained to us in December 2024 about events that she was aware of in January 2023. Normally we expect the complainants to come to us within 12 months of realising there was an issue. In this case Ms X has not provided me with good reasons for why she did not come to us sooner. She explained that she was waiting for the outcome of the SEND Tribunal and believed she could not complain to us while this was ongoing. This is incorrect, and because of this I consider points a-c to be late. I consider there was a significant period of time before the Tribunal in which Ms X could have complained to us, but decided not to. While I cannot investigate the point d of Ms X’s complaint for the same reason, I have considered if the remedy the Council offered was suitable for the fault the Council has accepted.
12. Because of this I have decided to investigate her complaint from January 2024 onwards.

Back to top

How I considered this complaint

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

Back to top

What I found

Annual Reviews

15. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
16. Councils must review an EHC Plan at least every 12 months.
17. Within two weeks of the review meeting the school must prepare and send out a report setting out any amendments to the EHC Plan it is recommending.
18. Within four weeks of the review meeting, the Council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent of its decision.
19. If the plan needs to be amended, the Council should start the process of amendment without delay.
20. The Council must send the draft EHC Plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
21. When changes are suggested to the draft EHC Plan and agreed by the Council, it should amend the draft plan and issue the final EHC plan as quickly as possible, but within eight weeks of the date the Council held the annual review meeting.
22. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC Plan.
23. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Phase Transfers

24. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. (SEN Code paragraph 9.179). The transfers from primary school to secondary school is one of the key transfers.

SEND Tribunal Order

25. There are time limits within which the Council must comply with the SEND Tribunal’s orders. These time limits are contained in Regulation 44 of the Special Educational Needs and Disability Regulations 2014.
26. Where the SEND Tribunal orders the Council to amend the special educational provision set out in the EHC plan, the Council must issue the amended EHC plan within five weeks of the order being made.

What happened

27. In January 2023 the Council held an annual review of A’s EHC Plan. During the review Ms X raised her concerns about her experience of the phase transition process since 2022. The Council did complete the review process and did not issue a final EHC Plan following this annual review.
28. In January 2024 the Council held A’s phase transfer review. It issued a final EHC Plan a couple of days before the phase transfer deadline in February of the same year. Ms X said she was not consulted about this and was unaware the Council would be issuing this Plan for A. Ms X disagreed with the section B, F and I of the Plan and she appealed it to the SEND Tribunal the following month.
29. A SEND Tribunal considered Ms X’s case and issued an Order in late July 2024. The Council should have issued the final amended EHC Plan within 5 weeks from the date of the Order, but it did not.
30. The Council issued A’s final amended EHC Plan in mid-August 2024. Ms X said that the Plan contained issues and she asked the Council to make further amendments to it, but it did not make the corrections.
31. Mid-October 2024 Ms X complained to the Council about its actions since 2022. She asked the Council for a number of service improvements as well as £3,936 for the anxiety support they paid for A, and further £3729.74 for the professional reports she obtained.
32. The Council replied to her complaint in early November 2024. It accepted it was late to finalise A’s EHC Plan following the January 2023 annual review and the July 2024 SEND Order. It apologised and offered to pay her £500 for the distress she experienced. The Council also accepted it was at fault for the delays in responding to her communications. It told Ms X that it provided additional training for its officers explaining the importance of timely communications with families.
33. Ms X was not satisfied with the Council’s response. She said it had not addressed all the points she made in her October complaint. She also said the £500 did not accurately reflect the distress her family experienced during the process.
34. In early December 2024 the Council issued its final response to Ms X’s complaint. It apologised for the delays Ms X experienced and offered to pay her £1000 for the distress. It also explained that it:
• it doesn’t always consider complaints about events that happened more than 12 months ago; and
• it will not comment on cost requests because this could have been brought up during the SEND Tribunal hearing to consider if the Council should cover some of the costs.
35. Ms X was not happy with the Council’s responses and in the same month she asked the Ombudsman to investigate her complaint.

Analysis

Delays following and annual review and SEND Tribunal

36. The Council accepted that it was at fault for not completing the annual review 2023 within the timescales and for the delay in issuing the final EHC Plan following the Tribunal Order from July 2024. It apologised and it offered to pay Ms X £1000 to recognise the distress she experienced. Another injustice Ms X experienced as a result of the delay is frustrated appeal rights.
37. Although I have not investigated the events from 2023 because they happened more than 12 months before Ms X complained to us, I have considered the suitability of the remedy the Council offered her for the fault it accepted. I consider the remedy the Council offered Ms X is suitable and remedies the distress she experienced, including the delay in her right to appeal to the SEND Tribunal.

Communication standards

38. The Council accepted that not all of its communications were timely and as meaningful as they should have been given the delay Ms X was experiencing. The Council apologised and said that it provided additional reminders and training to staff around the importance of timely communications.
39. This undoubtedly caused Ms X frustration; however, we consider we cannot separate this frustration from the frustration she experienced as a result of the delays, and because of this we will not recommend a separate remedy for this aspect of her complaint. We consider the remedy the Council offered suitably reflects the duration of the injustice Ms X experienced. I also consider it encompasses the frustration she was caused by the low quality of the Council’s communications.

Incomplete complaint response

40. The Council explained that it does not have to consider complaints about events that took place longer than 12 months ago. Some of the events that Ms X complained to it about happened in 2022, so more than 12 months from her complaint. We consider the Council was not at fault for not considering the events from 2022 as Ms X has not provided the Council with any good reason for not complaining about her experience sooner. Because of this the Council had not addressed her request for reimbursement of costs, as this is something she could have asked the Tribunal to consider.

Back to top

Decision

We found the Council has already accepted it was at fault for the delays in the annual review process, delay following a SEND Tribunal order and poor communication with Ms X and offered a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman