Summary: Ms M complains the Council delayed in the review process for her child's Education, Health and Care Plan (EHCP) and providing them with support. This has caused distress. She would like the Council to issue the final EHCP and provide the correct support for her child. The Ombudsman has found the Council at fault for delay in the EHCP review process and complaint process.

The complaint

1. Ms M complained the Council delayed issuing a draft and final EHCP for her child, C. She also says the Council delayed recruiting an Occupational Therapist to work with C. This has caused Ms M distress and she says C is not receiving the support he is entitled to. She would like the Council to issue the final EHCP, provide the correct support for C and reimburse her legal fees.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Children and Families Act 2014, Special Educational Needs Regulations 2014 and the statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’.

Ms M and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant legislation

6. A child or young person with special educational needs may have an Education, Health and Care Plan (EHCP). This document sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
7. The council must arrange for the EHCP to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHCP and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
8. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
9. Where the council proposes to amend an EHCP, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) EHCP 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). Case law sets out this should happen within four weeks of the date of the review meeting.
10. The Council must issue a final EHCP within eight weeks of the proposed amendments. This is 12 weeks after the review meeting.

The Council’s policies and procedures

11. The Council has a two stage corporate complaints procedure.
12. The Council will acknowledge receipt of complaints at both stages, within three working days.
13. The target timescale for a stage one response is ten working days from receipt. It can take up to a maximum of 20 working days.
14. If the complainant is not satisfied, they can request the matter is considered at stage two. The target for a response is 20 working days.
15. If the complainant is not satisfied, they can complain to the Ombudsman.

What happened

16. I have summarised below the key events; this is not intended to be a detailed account.
17. C is a young child and lives with their parents, Ms M and Mr F.
18. C received their first EHCP at the end of July 2021. The Council reviewed and amended it in the middle of May 2022.
19. The Council completed a further review at the beginning of June 2023.
20. In the middle of July, Ms M complained to the Council. She said the Council failed to give her a decision letter within four weeks of the annual review and failed to respond to her email correspondence where she asked for the review decision.
21. A week later, the Council confirmed it will maintain C’s EHCP and make changes.
22. In late July, the Council sent a stage one complaint response. It apologised for the delay issuing the annual review response and failing to respond to emails.
23. Ms M instructed a solicitor who sent the Council a Pre-Action Protocol letter in early September.
24. The Council issued a draft amended EHCP at the beginning of October. The following day, Ms M sent the Council her amended version.
25. In late October, Ms M asked the Council for a stage two investigation.
26. In late January 2024, the Council issued a stage two response. It apologised for the delay issuing the final EHCP and said it would issue this imminently. The Council recognised Ms M was uncertain about how and when it would complete the assessments. It referred to the Ombudsman’s guidance on remedies and offered Ms M £100 for distress caused by uncertainty.
27. The Council issued the final EHCP a couple of days later.
28. In conversation with me, Ms M said there was a delay finding an Occupational Therapist and C missed some sessions. She also said C missed some speech and language sessions. In response to my enquiries, the Council confirmed it instructed and paid for sessions from the Occupational Therapist and Speech and Language Therapist for C as per the plan. It said any missed sessions were because of availability of Ms M and C and the therapist, the Council asked that all postponed sessions were fulfilled at a time to be arranged between the parties.

Analysis

Review of the Education, Health and Care Plan and provisions

29. The Council must complete a review of each child’s EHCP every 12 months. This means it should have reviewed C’s EHCP by the middle of May 2023. It completed the review the beginning of June 2023. This is a delay of a couple of weeks, this is fault.
30. The Council should have notified C’s parent of its decision to maintain, amend or discontinue the EHCP within four weeks of the review meeting. The meeting was early June. The Council should have issued the letter by early July. It issued the letter in late July. This is a delay of over two weeks. This is fault.
31. The Council should have issued a draft amended EHCP within four weeks of the review meeting. The Council issued the draft EHCP at the beginning of October. This is a delay of three months. This is fault.
32. The Council should have issued the final EHCP within 12 weeks of the review meeting, at the end of August 2023. The Council issued the final EHCP in late January 2024. This is a delay of around five months. This is fault.
33. The Council has instructed the Occupational Therapist and Speech and Language Therapist and paid for the sessions. Ms M said C is receiving the sessions although there have been delays. The Council explained the therapists and Ms M coordinated the sessions themselves, around their own availability. The Council has not caused any sessions to be delayed or postponed. It is not at fault.

The complaints process

34. The Council issued its stage one response within its target of ten working days. It is not at fault.
35. Ms M asked for a stage two investigation in late October 2023. She should have received a response from the Council within 20 working days, which would have been late November. The Council sent its stage two response in late January 2024. This is a delay of around nine weeks. This is fault.

Summary of fault causing injustice

36. The Council is at fault for delays throughout the EHCP review process. The Council held the review meeting late, it delayed making the decision to amend the EHCP and delayed sending a draft amended plan and final EHCP. It also failed to respond to Ms M’s email correspondence. The Council has already admitted this delay and recognised it left Ms M uncertain on how the assessment will be completed and when. It apologised and offered £100 for the distress caused.
37. The Council also delayed issuing its stage two response to Ms M’s complaint. This has caused further frustration to Ms M. In response to my enquiries, the Council explained it has employed an extra Customer Relations Officer to address the backlog of complaints.

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Agreed action

38. Within four weeks of my final decision, the Council agreed to:
• Pay Ms M £400 in recognition of the distress caused by the delay in the EHCP review process, made worse by the delay in the complaints process.
• Produce an action plan to demonstrate how it will meet statutory timescales for the EHCP review process.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation. The Council is at fault for delay in the EHCP review process and complaint process.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman