Summary: Miss D complains the Council delayed issuing her son’s final EHC plan. We found fault. The Council has already apologised for the delay, which remedies the injustice caused.

The complaint

1. Miss D complains the Council delayed issuing her son’s final EHC plan. She says this has caused stress and upset, time has been wasted and her son has been struggling within a mainstream setting.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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 decision statement.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
7. 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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What I have and have not investigated

8. I have investigated the periods between the annual review in April 2022 and the issuing of the final EHC plan on 25 July 2022, and between the mediation agreement on 14 September 2022 and the issuing of the final EHC plan on 24 November 2022.
9. I cannot investigate from 25 July 2022 to 13 September 2022 or from 24 November 2022 onwards, as Miss D appealed to the SEND Tribunal.

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How I considered this complaint

10. I spoke to Miss D about her complaint and considered the Council’s response to my enquiries and the SEND code of practice (“the Code”).
11. Miss D 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

Special educational needs

12. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
13. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named. Parents may also appeal to Tribunal if they are unhappy with the outcome of mediation, or once the final EHC plan is issued after mediation.
15. Parents must consider mediation before deciding to appeal. Following mediation, councils must meet the legal deadlines set out in Regulations unless different timescales have been set out in the mediation agreement. (Special Educational Needs and Disability Regulations 2014).

What happened

16. Miss D’s son, F, has autism. He had an EHC plan that was issued in March 2022 naming a mainstream primary school (“the School”), which F was attending. There was an emergency review of the plan in April 2022. Miss D says she requested this to discuss a change of placement to a specialist setting as the School had said it could not meet F’s needs.
17. The Council agreed to amend the plan and issued a draft on 13 May 2022 and a final plan on 25 July 2022. The plan again named the School. Miss D says she disagreed with the plan as it did not include F’s recent autism diagnosis, leading to specialist schools refusing to offer F a place. At this point, Miss D had a right to appeal to the SEND Tribunal and she went to mediation.
18. At the mediation meeting on 14 September 2022 the Council agreed to issue a new draft EHC plan within seven days of receiving further information from the school and the autism team. It said it would put autism as F’s primary need in the plan and consult with further schools. The mediation agreement says a final EHC plan would then be issued “in line with statutory guidelines”.
19. The Council received the information from the autism team on 20 September, but it did not issue the new draft EHC plan until 18 October 2022.
20. Miss D complained in November 2022 about delay in issuing the draft EHC plan after the annual review and the final EHC plan following mediation. She also complained about poor communication following mediation. The Council apologised for the delays.
21. The Council consulted schools and issued the final EHC plan on 24 November 2022. The plan again named the School. Miss D had a further right of appeal here, which she exercised in January 2023.
22. In March 2023 the Council agreed to name a special school in F’s EHC plan and the appeal was withdrawn.

My findings

23. Following the annual review in April 2022, once the Council had issued its proposed amendments to the plan the Code says it should have issued the final EHC plan within eight weeks, so in this case by 8 July 2022. The final plan was issued on 25 July 2022. This is fault and delayed Miss D’s right of appeal.
24. The mediation agreement was that the Council would issue a draft plan seven days after it had received further information from the autism team and the School. But it did not issue the draft until 18 October, which was a three week delay. This was fault.
25. The Council had agreed to meet the deadlines in the statutory guidelines (i.e. the Code). This means it should have issued the final plan about a month later (allowing 15 calendar days for Miss D’s comments then 15 calendar days to consult with schools). It was issued on 25 November, which is almost on time. However, if there had been no fault earlier, the final plan would have been issued by the end of October. So there was a delay of about a month, causing Miss D frustration and time and trouble as she had to chase the Council. It also further delayed her right of appeal.
26. The Council has already apologised for this delay and my view is this is an appropriate and proportionate remedy for the injustice caused, in line with our guidance on remedies. I note that the Council’s conceding has meant that Miss D does not have to wait until December 2023 for a tribunal hearing.
27. I realise Miss D does not consider that F is in a suitable school and that he is not due to start in a specialist school until September 2023, but this is not an injustice caused by fault that the Ombudsman can remedy. This is because we cannot consider the education provision to F from the date the appeal rights arose (25 July 2022 and 24 November 2022) as Miss D could appeal to Tribunal.

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Final decision

28. There was fault by the Council. The actions the Council has already taken remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman