Summary: Miss X complained there was delay in the process of reviewing and updating her son’s EHC plan. She also complained that communication was poor. We found there was fault by the Council and we upheld both elements of Miss X’s complaint. We recommended a written apology and a payment to reflect the distress this caused. We noted the Council was in the process of recruiting more staff to improve the situation.

The complaint

1. Miss X complains the Council failed to communicate properly with her following a review of her son’s Education and Healthcare (EHC) plan in May 2022.
2. Miss X complains there was significant delay in the Council’s actions in response to the EHC plan review and a final EHC plan was not issued until March 2023.
3. Miss X complained to the Council that the school the Council named in her son’s EHC plan was unsuitable.
4. The delays caused frustration and affected Miss X’s mental health significantly. There was also uncertainty and Y’s behaviour became worse as his needs were not being fully met at his current school. This may have been limited if the delay had been avoided.

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What I have and have not investigated

5. I have investigated the communication issues and the delay in issuing Miss X’s son’s EHC plan. I have not investigated the concerns that Miss X has about the content of the EHC plan or the named school as these are matters which Miss X is taking to appeal.

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The Ombudsman’s role and powers

6. 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)
7. 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. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)

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How I considered this complaint

9. I spoke to Miss X and considered her complaint and the information she provided. I asked the Council for information and considered its response to the complaint. I took account of the SEN Code of Practice.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

SEN Code of Practice 2015

11. 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.
12. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. The requirements include:
13. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
14. If a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
15. Where a 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)
16. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)

What happened

17. Miss X’s son has an Education and Healthcare (EHC) plan. I refer to her son as Y in this statement. On 25 May 2022, a review of Y’s EHC plan took place.
18. On 30 June 2022 the Council sent a letter to Miss X stating that it had decided not to make changes to Y’s EHC plan. The reasons given were that the changes requested did not indicate that an updated plan was required. The Council told us this letter was sent in error and it has no information on its systems to explain why.
19. On 12 July 2022 the Council decided it would amend the EHC plan. The review form noted there had not been significant changes of need recently. However, the request for a change of placement was not out of the blue and there had been significant changes in needs at the last review in Dec 2021. It noted Y had never attended a mainstream lesson, was mostly non-verbal and had significant sensory needs.
20. Miss X chased progress on 6, 17 and 24 August 2022.
21. The Council acknowledged her contact on 24 August and stated it would be issued as soon as possible. The Council sent an amendment notice on 6 September. A further notice was issued on 26 September 2022.
22. Between 26 September and 14 October, the Council consulted four schools. It received responses between 14 October and 28 October 2022.
23. One of the schools consulted was Y’s current school. It stated it had objections to being named on Y’s EHC plan. It stated it had not been possible to move Y onto the key stage room and he had been kept with and earlier stages where his emotional sensory and exploratory needs could be met to the best of the school’s ability.
24. In November Miss X chased the position regarding school consultations. She queried a visit being arranged to one of the schools and noted there was a lack of communication in general and it was not clear what was happening.
25. On 30 November Miss X provided comments about the proposed changes to the EHC and set out the school she would prefer.
26. Miss X also complained on 30 November 2022. She raised concerns about the lack of communication and the delay in issuing Y’s revised EHC plan. She also commented that the case worker dealing with Y’s case had a conflict of interest. Miss X was concerned that the Council was pushing for a school to be named that she did not want and the delay in issuing the EHC plan might be to prevent her from appealing.
27. On 7 December Miss X’s solicitor sent a letter before claim to the Council because the Council had not issued Y’s EHC plan.
28. The Council upheld Miss X’s complaint on 30 December. It acknowledged there had been a poor standard of communication by the SEND team and it noted there had been delays. The Council apologised and stated the issues had been high levels of staff sickness and it had been unable to appoint staff to fill vacancies. The Council commented on which schools it had consulted and what their responses had been. It noted a visit had been arranged to follow up a consultation response and the Council had not been clear what had happened around this. The Council responded to concerns about the conflict of interest. It allocated a new officer because the case officer Miss X was concerned about had left the Council in any event. The Council noted the letter from Miss X’s solicitor and stated it would respond.
29. In response, Miss X commented that the staff sickness and vacancies should not affect Y’s EHC plan. She set out concerns about some of the schools being proposed. In its further response the Council commented about the schools being consulted, recognised the frustration that the delays caused and stated the final EHC plan would be issued in early January.
30. On 3 January 2023 the Council responded to the letter before claim. It stated it was not able to finalise the EHC plan until it received more information from a school it consulted. The Council stated it could issue an EHC plan naming a type of school by 6 January if Miss X preferred.
31. In January Miss X’s solicitor chased for a progress update and asked if the Council would be prepared to name Miss X’s preference school from January 2024, with Y remaining at his current school until then.
32. On 16 January the Council stated that it had found a school placement for Y from September 2023 (School A). This was not Miss X’s preference. It stated it would be prepared to name her school preference (School B) to commence from January 2024. However, as it believed School A was the nearest available school, naming School B would be subject to Miss X making her own transport arrangements. In both situations, Y would remain at his present school until the place became available.
33. Miss X considered School B was the most appropriate, so she did not accept the Councils position regarding transport. Miss X pressed the Council to issue the final EHC plan as it was overdue.
34. On 17 January Miss X followed up and stated she had not had a response to her complaint.
35. After further correspondence with Miss X and further chasing from her solicitor in early February, the Council issued the final EHC plan on 1 March 2023, naming School A.
36. Miss X told us she also had difficulty getting a mediation certificate which was required before she could make an appeal against the EHC plan. The Council told us that it does not issue medication certificates but it acknowledged that when the final EHC plan was issued on 1 March, it should have sent Miss X a letter which explained how to appeal which explained this. It stated in error, the letter was not sent.
37. I note that after Miss X raised queries with the Council about getting a medication certificate, the Council sent the appropriate letter on 4 May and explained the appeal process.

Was there fault by the Council

Timescales

38. The Council initially told Miss X in error that it would not amend her child’s EHC plan. It does not know what led to the error. It wrote to confirm that it would make amendments on 12 July. This was seven weeks after the review meeting, three weeks more than required by the SEN Code. The SEN Code requires that a council acts upon changes without delay. It took the Council a further eight weeks to send Miss X an amendment notice. This further delayed the process. The initial error and these initial delays represent fault by the Council.
39. A final EHC plan must be issued within eight weeks of the amendment notice being sent. The final EHC plan was not issued until 1 March 2023. This was over 22 weeks and represents significant delay. This is also fault.

Communication

40. The Council accepted that its communication with Miss X had been below the standard it expected. It apologised for this in response to her complaint. The failings in communication exacerbated the stress caused by the delays. There was further fault at the end of the process when Miss X was not sent details of how she should go about making an appeal.
41. I note that much of the delay and the communication failings by the Council was attributed to staff shortages. The Council told us that in March 2023 it agreed additional funding to increase the number of full-time equivalent staff in the SEND Team from 22 to 32 and they were in the process of recruiting to fill these positions.

Injustice

42. Miss X explained that her son attended an SEN unit in a mainstream school. She stated it had not been able to meet his needs for some time. Because Y’s current school was unable to meet his needs, this had affected his behaviour at school and at home. In addition, the delay and uncertainty while the process was ongoing was stressful and frustrating. We have made a recommendations to remedy the impact to Miss X and to reflect there is some uncertainty about how the delays affected Y’s behaviour.

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Agreed action

43. Within four weeks of my final decision:
44. The Council should send a written apology to Miss X for the delays in the EHC process and the stress that this caused. This should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy.
45. To recognise the distress and uncertainty caused by the delay in the EHC process and the poor communication by the Council, the Council should pay Miss X £500.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. There was fault by the Council. I have now completed my investigation and closed my file on the basis the Council takes the agreed actions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman