Summary: Mrs X complains the Council has not dealt properly with her son Y’s Special Educational Needs. The Council delayed producing Y’s EHCP and didn’t respond to Mrs X. Y was left with no provision and Mrs X had to pay fees. The Council has agreed to apologise to Mrs X, pay Mrs X £14,104 in respect of costs incurred for Y’s education placement, £2532 for her legal fees, pay Mrs X and Y £250 each in respect of avoidable distress, pay Mrs X £100 in respect of time and trouble as well as produce an action plan to show how it will meet statutory timescales for EHCP annual reviews.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council have not dealt properly with her son’s Special Educational Needs because it:
• Delayed issuing his Education Health and Care Plan (EHCP);
• Failed to respond to her between May and September 2022; and
• Did not explain how Y’s education support would be transitioned and funded if the Y decided to live in another Council area and be educated there.
2. Mrs X says she has incurred legal costs, had to pay education fees and both her and her son have suffered avoidable distress, as well as had to spend a lot of time dealing with matters.

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The Ombudsman’s role and powers

3. 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)
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(i), as amended)

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How I considered this complaint

5. I spoke to Mrs X about her complaint and considered documents she provided. I considered supporting documents provided by the Council.
6. Mrs 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

Law, guidance and policies

Special Educational Needs

7. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.

Reviewing an EHCP

8. As part of an EHCP annual review, the local authority and the school, further education college or section 41 approved institution attended by the child or young person must cooperate to ensure a review meeting takes place. This includes attending the review when requested to do so. When holding an annual review of an EHCP, the child’s parents or young person, a representative of the school or other institution attended, a local authority SEN officer, a health service representative and a local authority social care representative must be invited and given at least two weeks’ notice of the date of the meeting. (SEN Code of Practice para 9.176)
9. The school (or, for children and young people attending another institution, the local authority) must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting. (SEN Code of Practice para 9.176)
10. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person and the school or other institution attended. (SEN Code of Practice para 9.176)
11. If the plan needs to be amended, the local authority should start the process of amendment without delay. (SEN Code of Practice para 9.176)
12. If the local authority decides to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit. (SEN Code of Practice para 9.196)

What happened?

13. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
14. An annual review was held for Y in November 2021.
15. The Council issued a draft EHCP in April 2022.
16. Between May and September 2022, Mrs X tried to get the Council to agree a placement for Y from September 2022.
17. Mrs X made a complaint to the Council in September 2022. Mrs X instructed solicitors to help her at the end of September, after receiving no substantive response.
18. Y went to live in Council 2’s area and began to attend Provision 1, which Mrs X paid for herself.
19. In October 2022, following contact from Mrs X’s solicitors, the Council issued Y’s Final EHCP and sent Y’s SEN file to Council 2.
20. Council 2 accepted its duties and worked with Mrs X to quickly find and agree an acceptable placement for Y at Provision 2, by the end of October 2022.
21. Y began attending Provision 2 in early December 2022
22. Mrs X’s solicitors made another formal complaint to the Council in December 2022. The Council responded to Mrs X’s second complaint through her solicitors in April 2023 at stage 1 and then in July 2023 at stage 2 of its complaints procedure.

Analysis

EHCP delay

23. An annual review of Y’s EHCP was undertaken in November 2021. The Council issued a draft amended EHCP on 4 April 2022 and a final amended EHCP on 14 October 2023.
24. The Council should have issued Y’s final amended EHCP much earlier. Mrs X should have been able to appeal the final EHCP by mid-February 2022. I consider this to be fault by the Council. Mrs X was denied her appeal rights in relation to Y’s EHCP until significantly after Y was due to start a new educational placement.

Failure to respond and Explanation

25. Throughout 2022, Mrs X sought agreement from the Council that it would fund specific named provision for Y in September 2022 in Council 2’s area.
26. The Council has accepted in its stage 2 complaint response that there was a lack of communication and that it did not respond to Mrs X throughout May to September 2022. Mrs X engaged solicitors in respect of a judicial review pre-action letter because of the Council’s failure to communicate with her to resolve the situation.
27. The Council’s stage 2 complaint response says, “we should have considered your requests and responded to you accordingly. We are really sorry that this did not happen. However, this did not impact on the educational provision that was available for Y, whilst he continued to attend [his previous provision].”
28. The Council’s failure to communicate, combined with the lack of EHCP appeal rights, meant Mrs X had no way of understanding what should happen with Y’s education support or any way of securing provision for Y without paying for it herself.
29. If the Council had correctly issued Y’s EHCP, Mrs X would have been able to appeal Y’s EHCP earlier in the year. On the balance of probabilities Mrs X would also have had sufficient time to work with Council 2 in order to agree acceptable provision for Y before September 2022, because Council 2 did work quickly with her to agree Provision 2 in November.
30. This is fault by the Council. Mrs X was denied any opportunity to understand and take action regarding Y’s provision from September 2022 onwards. Y was left with no educational provision from September 2022. Mrs X had to pay for Y to receive educational provision. Mrs X had to spend considerable time and trouble trying to arrange provision and follow up her concerns. Mrs X and Y suffered avoidable distress having to change from Provision 1 to Provision 2 in the first term.
31. I have considered the Ombudsman’s Guidance on Remedies in relation to professional fees. This says, expenses may include professional fees, taking into account the following:
• Complainants should not need a solicitor or other professional adviser to help them make a complaint to the LGSCO or to the organisation. So, we are unlikely to recommend that fees for this purpose are reimbursed.
• There may be circumstances where it is reasonable for a complainant to have engaged legal help in a matter, particularly where it is complex. In such cases, we may consider recommending a remedy to reimburse costs which directly and necessarily flow from the fault identified. We will not do this where costs were wholly covered by the legal aid scheme and the complainant has no personal li-ability.
• We may recommend a contribution to costs rather than a refund of all the expenses. If we consider the amount of professional advice commissioned was disproportionate, or not all the advice arose from the identified fault, our recommendation will reflect this.
32. I have considered the legal fees Mrs X paid, in relation to this guidance. Some of the fees relate to the initial challenge to the Council in September 2022. I consider that these were unavoidable. Mrs X agreed provision with Council 2 at the end of November. I do not consider that legal fees after that time were unavoidable. Paragraph 33 below therefore only includes a recommendation in respect of part of Mrs X’s professional fees.

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Recommended action

33. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs X and Y for the fault I have identified in this decision.
• Pay Mrs X £14,104 in respect of the education fees she incurred for Y between September and December 2022.
• Pay Mrs X £2,532 in respect of the legal fees she incurred attempting to secure Y’s EHCP and educational provision.
• Pay Mrs X and Y £250 each in respect of avoidable distress.
• Pay Mrs X £100 in respect of her time and trouble.
• Produce an action plan to demonstrate how the council will meet statutory timescales for EHCP annual reviews.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have found fault by the Council causing injustice to Mrs X and Y. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman