Summary: Mrs B complains about delay by the Council in completing a review and issuing a revised Education, Health and Care Plan for her son, X. She considers that as a result he has not received the educational provision and support he needs. There was fault which caused injustice to Mrs B and X. The Council should apologise and make a payment.

The complaint

1. Mrs B complains about delay by the Council in completing a review and issuing a revised Education, Health and Care Plan (EHCP) for her son, X. She considers that as a result he has not received the educational provision and support he needs.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
4. We cannot investigate a complaint if someone has appealed to a tribunal. However, we might investigate whether there may have been a delay in the process which led to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. If we are satisfied with a council’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

How I considered this complaint

6. I considered the complaint and documents provided by Mrs B and spoke to her. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mrs B and the Council and considered their comments.
7. 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.

Back to top

What I found

Summary of the key events

8. X is now ten years old. He has poorly controlled epilepsy along with mild learning disabilities, speech and language delay, attention difficulties and various other issues. He has always attended the same mainstream primary school. The Council first issued an EHCP for X in October 2018.
9. There was an emergency review of the EHCP in February 2019 as X’s medical needs had changed significantly and Mrs B considered that other changes had not been properly incorporated into the first EHCP.
10. The Council issued an amendment notice proposing changes to the EHCP in early July. Before then there had been some contact between Mrs B and the Council and Mrs B had submitted complaints. The Council issued the final EHCP in early August.
11. Mrs B appealed the final EHCP. The appeal was withdrawn in June 2020 after agreement was reached with the Council over changes to the EHCP.

Analysis

Jurisdiction

12. There are limits on our powers that are relevant to this complaint. Where there is a right of appeal to SEND about the content of an EHCP, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’. (R (on the application of ER) v the Commissioner for Local Administration, 2014). The Ombudsman cannot, therefore, investigate either the decision subject to the appeal or the consequences arising from the decision. This means we cannot consider the period where Mrs B has exercised her right of appeal.

Time taken

13. A local authority should tell the parent of the outcome of a review within four weeks. Here it was five months before the Council issued the amendment notice. That is delay of four months. The Council has commented that it accepts there was delay which was because of a significant increase in the number of EHCP requests which affected timescales and efficiency.
14. The delay has meant the whole process has taken longer. If the revised final EHCP has been issued on time Mrs B would have been able to appeal and the agreement that was eventually reached would have happened sooner.
15. To decide what would be an appropriate remedy for Mrs B and X for the delay I need to consider what difference this has made for the provision X was receiving. The agreed revised EHCP is more detailed about the support X should receive in school. It provides far more detail and specific guidance about reading and writing support, six hours per term of speech and language therapist input with detail about how that is to be used and three hours per half-term of input from an occupational therapist. The final EHCP also specifies the provision of full-time 1:1 teaching assistant support. But X had received 1:1 support throughout the period although Mrs B has commented there were some gaps in that. I therefore consider that a payment of £200 for each of the four month’s delay would be fair.

Complaint handling

16. Mrs B complained in April 2019 about the delay in action following the review in February. The Council quickly responded accepting it was taking too long and apologising. She complained again in mid-May that she still had not received the outcome of the review. Again the Council responded apologising for the delay.
17. Mrs B complained again at the beginning of July. The Council responded in mid-August. Things had moved on by this point as the Council had issued the amendment notice so Mrs B had raised other issues. She remained dissatisfied and the Council passed her complaint to be considered at stage 2. A final response was sent on 14 October.
18. In terms of the original issue – the delay in issuing the revised EHCP – I consider that complaint should have been at stage 2 of the complaint process in May 2019. And the Council’s own records show that was how it intended to treat it. But that did not happen and I consider that to be fault. Instead it was considered as part of the wider issues raised over July and August.

Agreed action

19. Within one month of the final decision the Council will apologise and pay Mrs B £800 and a further £100 for the delay caused by the fault in the complaint handling.
20. The Council should, within two months of the final decision, tell the Ombudsman of the action taken to address the problems that led to the delay following the review. It should also review its complaint handling process to ensure that aspects of complex complaints are not overlooked but progressed appropriately.

Back to top

Final decision

21. There was fault which caused injustice to Mrs B and X.

Back to top

Parts of the complaint that I did not investigate

22. I cannot investigate what happened once Mrs B had appealed to SEND in October 2019.

Back to top

Investigator's decision on behalf of the Ombudsman