Summary: Mr X complains the Council delayed issuing a final education, health and care plan for his child, Y, and that it failed to provide some of the provision outlined in the plan. The Council acknowledges it was at fault and has apologised to Mr X. The Council has agreed to remedy the injustice caused by the delays.

The complaint

1. The complainant, Mr X, complains the Council has delayed issuing a final education, health and care plan for his child, Y, after an annual review and it has failed to provide some of the provision contained in Y’s plan.
2. Mr X also complains the Council has failed to respond to his complaint in accordance with the relevant timescales.

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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 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)
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. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I considered Mr X’s complaint and the information he provided.
8. I considered the information I received from the Council in response to my enquiries.
9. Mr X and the Council had the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

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What I found

Relevant law and guidance

Education, health and care (EHC) Plans

10. A child or young person 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. The EHC Plan is set out in sections which include: 
• Section B: 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 educational placement 
11. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the SEND Tribunal or the council can do this. 

Reviewing EHC Plans

12. The procedure for reviewing and amending an EHC Plan is set out in legislation and Government guidance.
13. EHC plans must be reviewed at least every twelve months.
14. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• within four weeks of the annual review meeting the council must decide whether it proposes to keep the EHC plan as it is, amend the plan or cease to maintain it, and notify the child’s parent or young person and the educational setting;
• if the plan needs amending, councils should start the process of amendment without delay;
• if amending the plan, councils must send the child’s parent or the young person a copy of the existing plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes;
• councils must issue the amended EHC plan as quickly as possible after receiving comments and within 8 weeks of the original amendment notice.

Appeal rights

15. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Council’s Complaints Procedure

16. The Council has a two-stage complaints procedure. It aims to provide a response to a stage one complaint within 20 working days and stage two investigations are usually completed within 25 working days.

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What happened

17. Mr X has a child, Y, who has an Education, Health and Care (EHC) Plan maintained by the Council. In March 2023 an annual review of Y’s EHC Plan was held.
18. Mr X contacted an Assistant Director at the Council about his dissatisfaction about the Council not finalising Y’s EHC Plan within statutory timescales and the gaps in Y’s provision, specifically Speech and Language Therapy (SaLT) and Occupational Therapy (OT).
19. On 2 November 2023, Mr X contacted the Council’s complaints department to ask why it had not contacted him about his complaints.
20. The Council responded on 3 November 2023. It told him his correspondence had been sent directly to an Assistant Director who had made arrangements to address the matters operationally. The Council offered Mr X a conversation with the Assistant Director or alternatively to let it know if he wished for his concerns to be addressed through the formal complaints process. Mr X advised the Council he wished for his concerns to be addressed through the complaints process. On 3 November 2023, the Council logged Mr X’s concerns as a complaint.
21. On 13 December 2023, the Council sent its Stage 1 response to Mr X. It apologised for the delay in sending the response. The Council upheld Mr X’s complaints about the delay in finalising Y’s EHC Plan following the annual review in March 2023.
22. The Council acknowledged there was a short gap in SaLT provision in February 2023 when a therapist had stopped working with Y and another therapist was found. The Council apologised for this gap in provision.
23. The Council acknowledged it had difficulties sourcing an OT but it advised that one had been confirmed and that they started supporting Y in November 2023. The Council apologised for the delay in securing this provision.
24. In January 2024, Mr X requested his complaint be escalated to Stage 2 of the Council’s complaint process.
25. On 25 January 2024, the Council advised Mr X that to resolve the matters complained of, it was going to provide him with an additional Stage 1 response within ten working days.
26. On 20 February 2024 the Council sent its further Stage 1 response to Mr X that was dated 19 February 2024. It said it had already acknowledged that the amendments to the draft and finalising Y’s EHC Plan were delayed, it had provided reasons for the delay and apologised. On the same day, Mr X brought his complaint to the Ombudsman.
27. The Council advised Mr X on 26 February 2024 that it would not escalate his complaint to Stage 2 because it had already ‘provided a proportionate consideration’ of his concerns and he can approach the Ombudsman if he remains dissatisfied.

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Analysis

Y’s EHC Plan and annual review

28. The annual review meeting was held on 7 March 2023 and the Council issued its decision to amend the Plan on 11 April 2023. A draft EHC Plan was issued on 12 April 2023. The Council acknowledged that the statutory timescale of deciding to make amendments and issuing the draft plan within four weeks was not met.
29. The Council issued the final EHC Plan on 11 October 2023. The Council acknowledged that this was outside the statutory timescale of 8 weeks from sending the draft amended Plan. The Council has apologised to Mr X for the delays.
30. The Council delayed issuing Y’s EHC Plan by 19 weeks. This is fault and it delayed Mr X’s right of appeal to the SEND Tribunal.

SaLT and OT provision

31. The evidence shows there was a short gap in Y receiving SaLT provision in February 2023 when a staff member left and then another began working with Y. The Council has apologised to Mr X for this short gap in provision. There is nothing further I can add to this.
32. Y did not receive OT provision from January 2023 until November 2023. This is fault that caused injustice to Y because he was without the provision in his EHC Plan for a significant period. The evidence shows the Council approached several providers until it found an OT to deliver the provision to Y. I acknowledge the difficulties the Council has faced in sourcing an OT. However, Y was without the provision for approximately two terms and the injustice caused to Y warrants recognition.

The Council’s response to Mr X’s complaint

33. Mr X sent his concerns in an email to an Assistant Director at the Council. He followed this up with the SEND Team on 2 November 2023 to ask why his complaint had not been responded to. The Council then proceeded to log Mr X’s concerns as a complaint and it sent a formal Stage 1 response to him on 13 December 2023.
34. The evidence shows Mr X’s initial concerns were not logged as a complaint because the Council was addressing his concerns operationally within the relevant department. Following Mr X’s correspondence on 2 November 2023, the Council then logged his concerns as a complaint at his request and it was then actioned accordingly.
35. The Council’s Stage 1 response was 8 days later than it should have been. The Council apologised for this in its Stage 1 response. There is nothing further I can add to this.

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Agreed action

36. To remedy the injustice caused by the faults, the Council has agreed that within four weeks of this final decision, it will pay Mr X £1800 to acknowledge the duration Y was without OT provision. This payment also recognises the frustration caused by the delay in issuing the amended EHC Plan following the March 2023 annual review.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. The Council acknowledges it was at fault and it has agreed to remedy the injustice caused. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman