Summary: Ms X complained about the Council’s delay in issuing her daughter’s final Education, Health and Care Plan following an Annual Review. We find there was delay resulting in a delayed right of appeal and loss of extra support for Ms X’s daughter. The Council has agreed a remedy for the injustice caused.

The complaint

1. Ms X complained that the Council delayed in issuing her daughter’s final Education, Health and Care Plan following an Annual Review in October 2020. She then appealed to the Tribunal. As a result of the delay she says her right of appeal was delayed. Also she says her daughter missed out on extra support and on the chance to move to a specialist school before transferring to secondary education.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. Once someone has appealed we cannot investigate the same matter. (Local Government Act 1974, section 26(6)(a), 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 SEND Tribunal in this statement.

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How I considered this complaint

6. I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on special educational needs. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. The Council’s education and children’s services are run by Achieving for Children (AfC). As AfC provides services on the Council’s behalf I refer to its actions as actions of the Council in this statement.
8. 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.

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What I found

Education Health and Care Plans

9. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This 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 education, or name a different school. Only the tribunal can do this.
10. There is a right of appeal to the SEND Tribunal about the content of the final EHC Plan, including the support set out and the named placement. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
11. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It includes provision for reviewing EHC Plan, as follows.
12. Councils must review an EHC Plan at least every 12 months.
13. The council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC Plan as it is, amend it or end it.
14. If the Plan needs to be amended the council should start the process of amending it “without delay”. It must:
• send the child’s parent or the young person a copy of the EHC Plan with details of the proposed amendments and any evidence it has supporting the amendments;
• tell them of their right to ask for a particular school or other placement to be named in the Plan and advise where they can find information about placements available;
• give the parent or young person at least 15 days to make representations on the proposed changes or request a particular school.
15. If the council decides to amend the EHC Plan following the representations it must issue the final amended EHC Plan within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.

What happened

Background

16. Ms X has a daughter, D, now aged ten, who has special educational needs. At the time of the beginning of the events in this complaint D had a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and dyslexia. D has had an EHC Plan since 2019 and attends a mainstream primary school, School 1.
17. The EHC Plan included funding for 30 hours of support per week from teachers and Teaching Assistants, including 1:1 and small group work. It also included some indirect Speech and Language Therapy support to staff working with D once a term.

Events from September 2020

18. The Annual Review meeting for D’s EHC Plan took place on 29 September 2020. Ms X and the SEN Case Officer attended. Representatives from School 1 put forward the view that D was progressing well and did not need the level of support set out in her EHC Plan. It suggested the hours of support could be reduced from 30 to 20. Ms X did not agree, and felt School 1 was not meeting her daughter’s needs and she would prefer another school placement. The minutes of the meeting show Ms X was happy for the Council to arrange a new assessment by an Educational Psychologist (EP). The Council agreed and said it would be in touch with her and School 1 about this after the meeting.
19. School 1 sent the Council the report of the Annual Review meeting on 12 October. The report recommended a reduction in support hours from 30 to 20, an EP assessment, and no change of placement.
20. On 20 October the Council sent Ms X a letter informing her that after reviewing the Annual Review report it intended to amend D’s EHC Plan. It said it would ensure it issued the amended Plan “without delay”.
21. Ms X wrote to the Council in early November asking about progress with amending the EHC Plan. The Council replied saying the EP was due to see D shortly and would then provide a report which the Council would consider.
22. In early January 2021 Ms X wrote to the Council again asking when it would be issuing the amended draft EHC Plan. The Council told her the EP report was ready and it would discuss it with her before amending the Plan. Between January and March there was correspondence between Ms X and the Council about parts of the EP report she disagreed with.
23. In early March Ms X wrote to the Council asking for an urgent meeting to discuss the EHC Plan as she said it had been six months since the Annual Review meeting and 19 weeks since the Council made the decision to amend the Plan. She said she was “extremely keen for the EHCP to be amended” as she felt D was not receiving the right support at her current school. The Council replied saying that the dispute over the EP report was a sticking point and the Council needed a copy of the amended report in order to amend the EHC Plan. The Council received a copy of the amended report around a week later.
24. Ms X sought advice from an advice agency. Her advocate wrote to the Council on her behalf in early April. He asked the Council to issue an amended draft EHC Plan, followed by a final Plan, as soon as possible so that Ms X could appeal if she wished to.
25. The Council issued the amended draft EHC Plan on 30 April. Following representations from Ms X through her advocate, it issued the final EHC Plan on 27 May 2021. The final Plan included the reduction in support hours from 30 to 20, with no change of placement named in Section I.
26. Ms X was not happy with the EHC Plan. She first contacted the mediation service. When that did not resolve her differences with the Council she submitted an appeal to the SEND Tribunal in late August 2021. By this time D had had a diagnosis of autism. Ms X appealed for extra support, including Speech and Language Therapy (SaLT), and for a specialist placement for pupils with autism.
27. The Tribunal hearing was scheduled for mid-January 2022 and then re-listed for late February. By this time Ms X felt it would not benefit D to have to change schools so close to her move to secondary school. She decided not to pursue the part of the appeal about a change of placement. The hearing took place in May after a further postponement.
28. The Tribunal issued its decision in late July 2022 and the Council issued the final amended EHC Plan as ordered by the Tribunal at the end of August. The EHC Plan continued to name School 1. It included the reduction of support hours from 30 to 20 from the May 2021 EHC Plan. It included extra provision for Speech and Language Therapy as follows:
• weekly direct sessions with a qualified SaLT therapist to cover language processing and communication (30 minutes 1:1 work with D plus 15 minutes work with school staff supporting D);
• weekly attendance at small group therapy sessions for 30 minutes to develop social skills;
• language strategy practice sessions of at least 20 minutes a week delivered by a Teaching Assistant under the supervision of the SaLT therapist.

Complaint

29. Ms X says she sent a complaint to the Council through the post on 20 May 2021 about its failure to send her an amended EHC Plan. She has provided a copy of the postage receipt.
30. She also sent the Council a complaint by email on 15 June 2021 headed ‘failure to send an amended EHCP’. The Council sent her an acknowledgement saying it would forward her email to the SEND Team.
31. Ms X did not receive a response to her complaint. When the Ombudsman’s office asked the Council for details of how it had dealt with the complaint it referred to a different complaint. It then checked and found it had not responded to the complaint about delay in issuing the EHC Plan.

Analysis – was there fault causing injustice?

EHC Plan delay

32. The Annual Review meeting took place on 29 September 2020 and the Council sent Ms X the notice of intention to amend the EHC Plan on 20 October. This was within the required four-week deadline.
33. The Council should then have sent out the draft amended EHC Plan in time to ensure it could issue the final Plan within eight weeks of the amendment notice. This meant the deadline was 15 December 2020. Instead it issued the final EHC Plan on 27 May 2021, 23 weeks late.
34. Part of this time was taken up with arranging a new EP assessment and considering Ms X’s comments on the EP’s report. However, although Ms X had agreed with the need for a further assessment, I have seen no evidence that the Council commissioned it promptly. It should have ensured that even with the assessment there would be time to meet the eight-week deadline. If the Council was aware there was going to be a delay, it should have given Ms X the option of having the draft EHC Plan issued within the deadline without all the proposed amendments, so that she could exercise her right of appeal if she wished.
35. In response to our enquiries about the reason for the delay, the Council accepted there was significant delay in issuing the draft amended EHC Plan. It said this was because of long-term sick leave which meant the work had to be transferred to another case officer. Then, after sending out the proposal to amend the Plan on 20 October “no action took place” until Ms X’s advocate contacted the Council in March 2021. The Council then delayed further in issuing the draft and final EHC Plans, even though the advocate urged the Council to issue them without further delay so Ms X could appeal.
36. I consider that the delay of 23 weeks in issuing the final EHC Plan was fault. This delayed Ms X’s opportunity to appeal. There were then delays in holding the appeal, which the Ombudsman has no power to investigate. But the eventual outcome of the appeal in May 2022 was an increase in provision for D, mainly SaLT. If the Council had issued the EHC Plan in time, Ms X would have been able to appeal earlier and D would have received the extra support sooner.
37. Ms X also says the delay meant D did not have a chance to move to another school before the start of her secondary education. However I cannot conclude this was a consequence of the delay. It is understandable that Ms X did not wish to pursue the question of a change of school as part of her appeal because of the delay. But I do not know if the Tribunal would have agreed a change of placement if the appeal had been heard earlier.
38. I cannot investigate or recommend a remedy for loss of support for the period after 27 May 2021 when Ms X gained her right of appeal when the final EHC Plan was issued. This is because the extra provision was the subject matter of her appeal and so the issue is outside the Ombudsman’s jurisdiction.
39. I can recommend a remedy to recognise the loss of support between 15 December 2020, when the final EHC Plan should have been issued, and 27 May 2021 when it was issued. Taking account of school holidays this is a period of around four months.

Complaint handling

40. I consider there was fault in the Council’s complaint handling. It did not respond to Ms X’s complaint about delay in issuing the EHC Plan. As a result she had to put unnecessary time and effort into making a complaint to the Ombudsman.

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Agreed action

41. The Council has agreed to take the following action within one month of the final decision on this complaint:
• send Ms X a written apology for the faults found in this investigation and the injustice caused;
• make a payment to her to recognise the loss of support to D as set out below.
42. Where fault has resulted in a loss of educational provision, the Ombudsman normally recommends a remedy payment of between £200 and £600 per month to acknowledge the effect of that loss. The figure is based on the impact of the loss on the child and takes account of factors such as the child’s special education needs, any educational provision made in the period, whether additional provision can remedy some or all of the loss and whether the period was at a particularly significant stage in the child’s education.
43. In this case I recommended that the Council pay Ms X £350 per month for four months to recognise the loss of special educational needs support, making a total of £1,400. The figure reflects the fact that direct SaLT support was an important new therapy for D, but she received education and other support under the EHC Plan during this time. The sum should be used for the benefit of D’s education.
44. The Council has also agreed to make the following payments:
• £250 to recognise Ms X’s avoidable distress, frustration and anxiety because of the delay in issuing the EHC Plan;
• £200 to recognise her unnecessary time and trouble resulting from the Council’s poor complaint handling.
45. To prevent similar problems occurring again the Council has agreed that within three months it will explain what measures it will put in place to ensure that:
• amended EHC Plans are issued in the required timescale following an Annual Review meeting;
• it picks up on and responds to formal complaints it receives about the SEND service.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have found that the Council was at fault in the way it dealt with the review of D’s EHC Plan. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman