Summary: Mrs X complains the Council failed to deliver her daughter’s Education, Health and Care Plan in line with statutory timescales. We find fault with the Council for delay and have agreed a payment for the distress and frustration caused.

The complaint

1. Mrs X complains the Council delayed issuing her daughter Miss Y’s Education, Health and Care Plan (EHC Plan) after the annual review, meaning she missed a term of education.
2. Miss Y has been out of education since September 2022, and as she is a young adult she can no longer complete the proposed two year education plan towards independence in adulthood.
3. This caused significant distress to Mrs X and loss of opportunity for Miss Y.
4. Mrs X would like a refund of her legal fees incurred, and compensation to go towards Miss Y’s private education and for the frustration and distress caused.

Back to top

The Ombudsman’s role and powers

5. 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)
6. 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.
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
10. 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)

Back to top

What I have and have not investigated

11. I am not investigating the period from January 2023 as the EHC Plan was issued and Mrs X had appeal rights so it is out of our jurisdiction (see paragraph seven).
12. I am not investigating the Council’s decision to put College B in the January 2023 EHC Plan as that has a right of appeal for Mrs X to use.
13. I am investigating the period from February 2022 to January 2023.

Back to top

How I considered this complaint

14. I spoke with Mrs X and considered the information she provided.
15. I made enquiries with the Council and considered the information it provided.
16. I considered relevant law and guidance, as set out below and our guidance on remedies, published on our website.
17. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative background

Education, Health and Care Plan

18. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The Plan sets out the child’s needs and what arrangements should be made to meet them.
19. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.
20. The council must arrange for the EHC Plan 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 EHC Plan 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.
21. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. 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) 
22. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
23. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Appeal right

24. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. 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.

Council’s complaint procedure

25. The Council has a two stage complaints procedure:
• Stage one – local or commissioned investigation by a service manager with a response within 20 working days.
• Stage two – a response from a senior manager within 25 working days, or advise to go straight to the Ombudsman.

What happened

26. Miss Y is a young adult with diagnoses of Autism and other learning disabilities. She had an EHC Plan dated July 2019 which named an educational setting where she was studying alongside doing work experience.
27. The placement in the EHC Plan was extended from July 2020 for a further year due to time lost in lockdown in the Covid Pandemic. Mrs X says she was not aware of this.
28. In February 2022 Mrs X asked the Council for alternative education choices to start in September. She says the Council said it would respond to her in a week but it did not. The annual review took place in June 2022. The Council did not agree the request for a further year at the original placement as it had already agreed the extension for 2020 / 2021.
29. In July 2022 a new key worker introduced herself to Mrs X and said the Council would ask for further information from the original placement about the levels of courses Miss Y took and the courses that it would provide for the following year. The Council considered this information again in July and agreed with the previous decisions.
30. As there were no identified progression routes for Miss Y, the Council said it proposed to cease to maintain Miss Y’s EHC Plan. The key worker told Mrs X she could provide further preferences for the Council to consider.
31. Mrs X emailed the Council to say she did not agree with its proposal to cease to maintain the plan.
32. The Council say as she did not provide any further preferences it issued a cease to maintain letter in August 2022. Mrs X says there had been a further Panel in early August and the Council delayed sending the cease to maintain letter after the Panel.
33. Mrs X requested a placement at a college (College A). The Panel considered this but did not agree as similar courses had been completed at Miss Y’s previous placement so there was no progression. The Council said it would try and source a level 2 course for Miss Y which were not available at her original placement.
34. The Panel decision in September agreed to cancel the cease to maintain and agreed to further consultations. The Council sent a formal letter advising Mrs X of this on 12 September 2022.
35. A further Panel took place in September to reconsider the College but was not agreed as the courses were all level 1 which Miss Y had already completed. Details of courses were sent to Mrs X for another college (College B) and she was advised to attend.
36. Mrs X went to visit College B but it then revoked its offer. Mrs X says Miss Y had previous negative experiences at College B.
37. Mrs X instructed solicitors to write to the Council on her behalf. This was continuing in November and December.
38. Mrs X had found College A and both her and her solicitors had told the Council this in November 2022. College A said Miss Y could start on 9 January 2023. There were two Panel meetings in November and December 2022. The panel did not agree College A in the November meeting and offered College B. In late November College B told Mrs X it had told the Council it could not offer Miss Y a place. Her solicitors then asked the Council how the Panel could consider a placement that did not exist.
39. A further Panel considered College A in December and the Head of Service asked College B to conduct an assessment of Miss Y to see if it could offer her a suitable programme. It decided this would be an efficient use of the Council’s resources in comparison with the fees for College A.
40. Mrs X instructed her solicitors to do a Letter Before Action on 23 December 2022 seeking a finalised EHC Plan naming College A in Section I.
41. The Council responded to the letter on 11 January 2023 with a proposed amended EHC Plan dated 6 January. On receiving a course offer from College B, the Council finalised the EHC plan on 23 January 2023 naming College B in Section I.
42. In June 2023 Mrs X made a complaint to the Council about the delay in finalising Miss Y’s EHC Plan and naming College B which had twice previously declined to offer Miss Y a place. Mrs X said Miss Y remains out of education since September 2022. She had asked the Council for alternative education choices for Miss Y in February 2022 to start in September but had no response.
43. The Council responded in September 2023, apologising for the delay in response. It upheld the complaint saying the EHC Plan was not completed within the 12-week statutory timeframe. It apologised for the delay and impact of the delay, and said staff will be reminded of the 12 week time frame and if there is a delay, staff are to update parents.
44. Mrs X was unhappy with the response so she requested the complaint to go to stage two. The Council responded at the end of October saying the stage two response would not offer a different conclusion or identify further learning points. It signposted Mrs X to the Ombudsman and Mrs X brought her complaint to us.
45. Mrs X appealed the EHC Plan at the SEND Tribunal and Miss Y’s final EHC Plan is dated 22 April 2024 and names College A in Section I.

Analysis

46. There was delay with the Council’s response to Mrs X’s complaint (see paragraph 25). The Council response took three months which caused Mrs X frustration and time and trouble of chasing a response.
47. The Council took longer than four weeks to write to Mrs X with its decision following the review (see paragraph 21). This is fault causing frustration and distress to Mrs X.
48. There was then delay completing the EHC Plan after the annual review. We note the Council originally intended to cease to maintain the EHC Plan, but there was still delay from the date the Council agreed to continue with the EHC Plan (12 September 2022, see paragraph 34). This delayed Mrs X’s right of appeal and meant Miss Y missed a term of education, causing frustration and distress. This is fault by the Council.
49. I am aware we have made service improvements to this Council on several similar cases recently (22012088, 22010984, 23013365 and 23016843). It is clear the Council is experiencing issues which the Ombudsman has addressed. I am satisfied the service improvements agreed on the other complaints also address the issues from this complaint, and the Ombudsman will continue to follow up with the Council on any previously agreed service improvements.
50. I acknowledge Mrs X’s reasons and why she believes the Council should pay or contribute towards her legal costs for issuing a letter before action to the Council, and further assistance given to her. However, we only consider repayment of legal costs, or contributions towards such costs, in exceptional circumstances. At this stage, we will not consider repayment of the legal costs.

Back to top

Agreed action

51. Within one month of the final decision the Council should:
• Send a written apology to Mrs X for the distress and frustration caused by the faults identified above. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £300 to recognise the distress and uncertainty caused by the delays in finalising the EHC Plan.
• Pay Mrs X £1500 for the missed provision, distress, frustration and loss of opportunity to Miss Y.
• Pay Mrs X £150 to recognise the added time and trouble caused by the fault with the Council’s complaint handling.
• The total payment to Mrs X is £1950.
52. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

53. I find fault with the Council for delay in issuing Miss Y’s EHC Plan. I have suggested financial remedies for the frustration and distress caused.

Back to top

Investigator's decision on behalf of the Ombudsman