Summary: The Council failed to amend the Education, Health and Care Plan of Miss X’s child, Y, within the required timeframe. It also failed to respond to Miss X’s communications in a timely manner or at all. This caused Miss X and Y distress and uncertainty, and the delays meant Y missed half a term of college. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complained the Council delayed amending her child Y’s Education, Health and Care (EHC) Plan and failed to respond to her communications about the issue. This meant Y missed the first half a term of college in September 2024 and she had to arrange her own transport for Y. Miss X said this caused Y to become withdrawn, unhappy and upset and caused her frustration and uncertainty about Y’s education. Miss X wants the Council to communicate better and learn from its mistakes.

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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. 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(1), as amended).
5. 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

6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. I have not investigated Miss X’s complaint about Y’s transport. Miss X raised the transport issue with the Council after her stage one complaint. The Council has not had an opportunity to respond to this complaint.

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council, as well as relevant law, policy and guidance.
9. Miss X and the Council have 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

The Law

Education, Health and Care (EHC) Plans

10. 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. 
11. 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) 
12. 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.
13. 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.

The Council’s complaint process

The Council has a two-stage corporate complaints process, which says it will send a comprehensive reply to complainants within 20 working days of the complaint being escalated to stage two, except in exceptional circumstances where it may take longer.

What happened

14. Miss X’s child, Y, had an EHC Plan and was due to transition to post-18 education at college. The Council reviewed Y’s EHC Plan in November 2023 to prepare for Y’s transition to college.
15. Y had an interview at college F, that was running a relevant course for Y’s interests and support needs. College F then raised its entry requirements and Y could not attend the college. Miss X found an alternative college, college G, which also had a relevant course and could offer Y the support needed. College G offered Y a place in June 2024.
16. The Council sent Miss X a draft version of the amended EHC Plan in June 2024.Miss X said she responded to say there would need to be some changes made for Y to start college in September. Miss X said the Council then stopped communicating with her and nothing progressed until mid-August 2024. Miss X said the Council told her it could not confirm when Y would be starting college, and that Y may have to attend an alternative college, college H. Miss X said the Council had not previously discussed this option with her.
17. The Council told Miss X in early September it was still approving the EHC Plan. Miss X complained to the Council in mid-September 2024. The Council sent its stage one complaint response to Miss X in mid-October 2024, in which it apologised for the delays and the stress caused. The Council said it had not made the amendments within reasonable timeframes due to staffing issues. The Council also apologised for its lack of communication and delays and said it recognised Miss X had to make several attempts to get an update before it responded. The Council apologised for not keeping Miss X updated about the Council’s consultations. The Council upheld Miss X’s complaint as it had delayed securing a college placement for Y.
18. Miss X escalated the complaint to stage two in mid-October 2024, saying she was still unclear why Y could not attend college G. The Council then issued Y’s amended final EHC Plan in mid-November 2024, naming college G as Y’s college. Miss X told the Ombudsman that Y started college in late October 2024 and that Y did not receive any other education between finishing school and starting college.
19. The Council responded to Miss X’s stage two complaint in late December 2024. The Council confirmed Y’s placement at college G and said it upheld Miss X’s complaint that it did not complete the college transfer process in a timely manner.

My findings

20. The Council reviewed Y’s EHC Plan in November 2023 and had a maximum of 12 weeks to issue the amended Plan. The Council did not finalise the Plan with a named college until 18 November 2024, a delay of around nine months. This was fault. It delayed Y’s start at College G by half a term and meant the Council did not secure the provision in Y’s EHC Plan until late October 2024. This also caused Miss X frustration and uncertainty about where and when Y would be attending college.
21. The Council also took too long to respond or did not respond at all to Miss X’s attempts to get updates on the situation between November 2023 and October 2024. This was fault. It caused Miss X time and trouble in pursuing Y’s college placement without the support of the Council.
22. The Council should have responded to Miss X’s complaint in 20 working days. The Council did not respond to the complaint until more than 50 working days had passed. The evidence does not suggest there were exceptional circumstances in this case, and the stage one complaint had been upheld. This was fault and caused Miss X further frustration and uncertainty.
23. The Council said it has a shortage of special educational needs and disabilities (SEND) staff and educational psychologists and has explained the steps it is taking to resolve these issues. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

24. Within one month of the final decision, the Council has agreed to:
1. Apologise to Miss X for the distress and uncertainty caused by the failings identified in this decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Miss X £500 to recognise the impact of Y missing the transition and settling in period at a new college by the Council not securing the provision in Y’s EHC Plan for half a term. This is in line with our guidance on remedies and reflects that Y is outside of compulsory school age.
3. Pay Miss X £200 to recognise the frustration and uncertainty the Council caused by delaying finalising Y’s EHC Plan and not efficiently responding to her communications.
25. The Council should provide us with evidence it has complied with the above actions.

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Decision

26. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman