Summary: Mr A complained that the Council, took too long to issue an Education and Health Care plan for his son. He also complained his son was not provided with education during the period he was waiting for the updated Plan. We found there was significant delay, a failure to establish what a suitable education was for S. We recommended the Council apologised, made a payment to Mr A and S and reviewed progress on improving its practice.

The complaint

1. Mr A complains that following an emergency annual review of his son’s, S, EHC Plan in November 2022 the Council:
• delayed issuing his child’s final EHC Plan; and
• communicated poorly with him about the progress of his child’s case; and
• failed to issue a final response to his complaint.
2. Mr A says the issues caused him distress and frustration. Additionally, he says the delays meant his son missed education for 6 months.
3. Mr A wants the Council to improve its services, so no other family has to go through the distress that his family experienced. He would also like the Council to ensure that children with Special Educational Needs are not left without the necessary support because of delays in the statutory process.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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.
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with 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)

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How I considered this complaint

11. As part of the investigation, I have:
• considered the complaint and Mr A's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
12. Mr A and the Council have 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

EHC Plans reviews

13. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
14. Councils must review an EHC Plan at least every 12 months.
15. Within two weeks of the review meeting the school must prepare and send out a report setting out any amendments to the EHC Plan it is recommending.
16. Within four weeks of the review meeting, the Council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent of its decision.
17. If the plan needs to be amended, the Council should start the process of amendment without delay.
18. The Council must send the draft EHC Plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
19. When changes are suggested to the draft EHC Plan and agreed by the Council, it should amend the draft plan and issue the final EHC plan as quickly as possible, but within eight weeks of the date the Council held the annual review meeting.
20. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC Plan.
21. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Council’s complaints policy

22. The Council’s complaint procedure has two stages. The Council says it will acknowledge complaints at both stages in three working days. It will respond to stage one complaints in 10 to 20 working days and stage two complaints in 20 working days.

What happened

23. In November 2022 the Council held an emergency review of S’s EHC Plan.
24. In January 2023 Mr X chased the Council for updated following the EHC Plan review. The Council issued S’s draft amended EHC Plan the following month.
25. Between January 2023 and March 2023 S attended his school four days a week, with the school providing him a personalised educational programme and timetable.
26. In early March 2023, the Council told Mr A that it had fond a provider to assess S’s Ocuppational Therapy (OT) needs. Around this time, S also begun to access alternative provision form an independent provider to support his transition to his new school. The provision consisted of three hours of education four times a week.
27. S transferred to another school in April 2023. Since then, his school was responsible for providing the support named in S’s EHC Plan from June 2022. Additionally, S received some Art Therapy to support him further.
28. In May 2023, an OT report suggested that S should have ongoing Occupational Therapy (OT) support.
29. The Council issued another draft EHC Plan following the emergency review in July 2023.
30. In early December 2023 Mr A complained to the Council. He said the Council delayed issuing S’s final amended plan following the emergency review it held in late 2022. In the same month, the Council told Mr S that S’s OT would start in January 2024.
31. The Council responded to Mr A’s complaint in mid-December 2023. It said that it sent him a draft EHC Plan for comments. On the same day Mr A asked the Council to consider his request further.
32. Two days later, the Council issued S’s final amended EHC Plan.
33. Mr A asked the Ombudsman to investigate his complaint in late March 2024.
34. The Council issued its final response to Mr A’s complaint in October 2024. It accepted that its response was delayed and offered to pay £100 for the time and trouble this caused him.

Analysis

EHC Plan

35. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code, and we are likely to find fault where there are significant breaches of timescales.
36. The Council conducted an annual review in November 2022. The Council failed to complete the process and issue a final EHC plan within 12 weeks from the date of the annual review meeting it held in November 2022. It should have issued S’s final plan around the end of January 2023. The final EHC Plan was not available until late December 2023. Even considering the possibility that Mr A asked for changes to the draft Plan, this was still a delay of 11 months which was fault. It had an adverse impact on Mr A because it delayed his right of appeal to the SEND Tribunal and caused avoidable distress and time and trouble chasing officers up. It also meant there was a loss of SEN provision for S because he could have received the tailored provision on an EHC plan yet to be finalised.
37. In May 2023, the OT identified that S needed direct support, however this did not happen. The Council said it did not have to provide it because it was not in S’s Plan. Whilst this is true, the Council delayed issuing S’s updated EHC Plan for 11 months which contributed to the delay in him accessing the therapies that were added after the emergency review in November 2022.
38. Since May 2023, the Council was aware that S would require direct OT input. We would expect the Council to begin planning for S to receive this input alongside amending his EHC Plan. This would allow the provision to start soon after the Council issued the final Plan. We consider the Council’s decision to begin searching for the OT provision after it had issued the final EHC Plan to be fault.
39. We cannot say, even on balance of probabilities, what OT provision would have been secured for S had the Council acted without fault. However, this caused Mr A avoidable uncertainty about the impact this may have had on S.
40. We consider that although the Council was late to issue S’s updated EHC Plan following the review, and delayed implementing OT for him, he accessed education throughout that period. The Council’s evidence shows he was supported by his school as well as alternative provider. There was a period of time that this was on part- time basis, however its our understanding that Mr A did not disagree with this.
41. The records suggest Mr A was chasing officers in the SEN team many times for updates, that he did not always get substantive replies, and any replies did not give meaningful updates. Our view is the Council should have given Mr A an estimated date for the final EHC plan, if appropriate. The failure to give a rough timeframe was poor communication and was fault.

Complaints handling

42. The Council accepted that it was at fault for the significant delay in responding to Mr A’s complaint. This was caused by a significant increase in complaints the Council was receiving.
43. This further contributed to the avoidable distress Mr A experienced following the emergency annual review process.
44. The Council offered to pay Mr A £100 for the frustration the delays caused him. We consider this does not suitably address the avoidable distress Mr A experienced because of the delay. This is why we recommend the Council should pay him £200 to recognise the distress her went through while he was waiting for the Council’s complaint response.
45. We are satisfied with the additional actions the Council took in 2024 to address the backlog of complaints that it has received, and because of this we have not made any service improvements on this occasion.

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Agreed action

46. Within one month of the date of the final decision statement, the Council will:
• apologise to Mr A and S for its failure to issue S’s updated final EHC Plan following the emergency annual review in November 2022. The Council should refer to our guidance on making an effective apology;
• pay Mr A £700 to recognise the distress and uncertainty Mr A experienced as the result of the Council’s delay to issue final amended EHC Plan for S and implement the OT provision;
• pay Mr A £200 to recognise the distress, frustration he experienced as the result of the Council’s delay to respond to his complaint; and
• share this decision with officers involved in issuing final EHC Plans to remind them the importance of timely issuing of amended EHC Plans following annual reviews.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. We found the Council was at fault for the delay in issuing S’s final EHC Plan following the emergency annual review it held in November 2022 and the delay in responding to Mr A’s complaint. The Council agreed to apologise, pay Mr A remedy and issue reminders to its staff.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman