Summary: Mrs C complains about delays in her son’s D’s Education, Health and Care plan reviews and in alternative provision. The Council has accepted fault, and agreed to apologise, make symbolic payments, and service improvements.

The complaint

1. Mrs C complains the Council failed to review her son’s, D’s, Education, Health and Care (EHC) plan. This has resulted in him not receiving the education that meets his needs. Mrs C also complains the Council has failed to keep her updated and consistently broken agreements about when it would take actions.
2. These failures have caused Mrs C anxiety, time, trouble, and frustration; and D continues to be without the education he needs.

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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 about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)
8. 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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What I have and have not investigated

9. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
10. Mrs C’s complaints date back to 2020. I have considered matters from April 2023. I have not exercised the Ombudsman’s discretion to look further back even though I am aware Mrs C was going through a difficult time having lost her husband in 2020. This is because in response to my enquiries the Council has accepted fault for failing to properly review D’s EHC plan for the period 2020 to 2023 and offered a financial remedy in recognition of the delay. It is unlikely I could achieve more than this financial remedy by investigating this period. This is because due to the passage of time I cannot make a sound balance of probability finding that D missed education.
11. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
12. As the matters are ongoing I have provided an end date to my investigation of 18 October as this is the date Mrs C had a right of appeal to the tribunal. I have exercised the Ombudsman’s discretion to consider additional matters between June to 18 October 2024 for the following reasons:
• it covers actions the Council agreed to take as part of the complaint response;
• the Council has responded to these issues as part of its response to my enquiries.

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How I considered this complaint

13. I spoke with Mrs C and considered information she provided, this included her complaint to the Council and its response. I made enquiries of the Council and asked for information. I considered:-
• the Council’s response and information it provided including EHC plans, case records, and correspondence with Mrs C;
• the relevant law and guidance.
14. Mrs C 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

What should have happened

Education, Health and Care Plans

15. A child with special educational needs may have an Education, Health and Care (EHC) Plan setting out the child's needs and what arrangements should be made to meet them. The EHC Plan is set out in sections.
16. The Special Educational Needs and Disability Code of Practice (code of practice) sets out the process for carrying out EHC Assessments, producing EHC Plans and reviewing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• within four weeks of a review meeting, a council must notify the child's parent of its decision to maintain, amend or discontinue the EHC Plan;
• where a council proposes to amend an EHC Plan, it should start the process of amendment without delay. It must send the child's parent or the young person a copy of the existing Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes;
• following comments from the child's parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents.
17. 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. If the council decides not to amend the Plan, it must notify the child's parent of their right to appeal that decision and the time limit for doing so.

What happened

18. D has had an EHC plan since starting a mainstream primary school, which I refer to as “school C”. The Council reviewed the EHC plan on 22 April 2023. The review identified Mrs C was asking for an alternative specialist school. The Council recorded the school as not ceasing to be maintained but no other information is provided.
19. On 21 June 2023 school C agreed to provide evidence to the provision panel that D needed a specialist school. It provided this on 22 June 2023. On 19 September 2023 the Council sent a proposed amended EHC plan.
20. On 21 and 25 September 2023 the Council held emergency review meetings. The Council sent a further proposed amended EHC plan on 27 October 2023 which included Mrs C’s meeting comments. The Council sent a letter of consultation to school A, which responded on 23 November 2023 saying it could not meet D’s needs and D needed Specialist Learning Disability provision.
21. On 4 December the Council contacted Mrs C after she said the Council had not added all her comments to the EHC plan. The Council responded saying with her consent it would add the amendments following the provision panel. The Council told Mrs C it was likely it would hold the provision panel in February 2024. After hearing nothing further Mrs C complained on 1 March 2024. The Council responded on 2 March 2024 upholding delay and failing to amend the EHC plan within the relevant timescales.
22. Mrs C went to stage 2 of the complaint process on 2 April 2024. On 20 May 2024 the Council issued a further amended EHC plan and on 7 June 2024 sent a Stage 2 complaint response. Throughout this period Mrs C contacted the Council to ask for updates and responses.
23. The Council accepted that it had failed to properly review D’s EHC plan and incorporate all Mrs C’s and school C’s comments. It said once Mrs C agreed the latest EHC plan an officer would send an amended final EHC plan for D.
24. The Council accepted delay with Mrs C’s request for a specialist school and considering D’s case at a provision panel but reassured Mrs C the June provision panel would consider D’s case. The provision panel met on 20 June 2024 and said it needed additional information before making a decision. After receiving more information on 18 July 2024 the Council decided D needed specialist provision but did not make a decision about the type of specialist provision. The Council issued a final amended plan on 18 October 2024.
25. The Council accepted it failed to effectively communicate with Mrs C. It offered a financial remedy in recognition, and set out the steps of its SEND Improvement Plan. These included:
• streamlining and reviewing workflows to prevent delay and ensure timely EHC review outcomes;
• enhanced monitoring to track the progress of EHC reviews and ensure compliance with established timelines;
• staff training so they have the skills and knowledge to manage the EHC review process efficiently;
• resource allocation so there is adequate resources to support the timely completion of EHC reviews and source additional staffing from extra investment;
• use of feedback mechanisms for parents and guardians to provide feedback and to improve processes.
26. In response to my enquiries the Council says D is currently on the waiting list for two specialist schools and D continues to receive significant additional support at school C.
27. Mrs C says the lack of suitable provision negatively impacted on D, he has had a suspension from school and now needs extra support at play times.

Was there fault causing injustice?

28. The Council did not act in line with the SEN code of practice for the following reasons:-
• Between 2023 to 2024 it did not complete a proper EHC plan review,
• when it did review the EHC plans it did not follow the correct process and provide Mrs C with decision letters or amend EHC plans properly;
• the Council delayed and miscommunicated with Mrs C which raised her expectations and left her in a position where over a significant period she had to chase the Council to respond or to act.
29. Because of these failures it was not until October 2024 the Council properly considered D’s educational needs and produced a final amended EHC plan, the contents of which are different to his 2019 plan. I therefore consider it is more likely than not D has missed education he needed. It also appears that some incidents that have occurred at school may have been avoided had the Council produced an earlier amended final EHC plan.
30. The faults have also frustrated Mrs C’s appeal rights and D is further down the waiting list for two schools than he would have been but for the faults identified.
31. The Council’s faults have caused Mrs C frustration, anxiety and time in trouble in dealing with the complaint. She has also had to liaise with the school and support D outside school because of the lack of suitable provision.
32. The Ombudsman welcomes councils early acceptance of fault and remedies to resolve matters for complainants. However in this case I do not consider the Council’s proposed actions remedy D’s and Mrs C’s injustice.

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Agreed action

33. I have found fault in the Council’s actions. I consider the agreed actions below are suitable to remedy D’s and Mrs C’s injustice as well as improve services.
34. Within one month of the final decision the Council will:-
1. apologise to Mrs C for the frustration, time and trouble she has had in chasing the Council for actions it agreed to take, frustrating her appeal rights and for delays in updates on actions.
2. as agreed by the Council make a symbolic payment of £1200 for the delays in the EHC plan review process and the effect this has had on Mrs C;
3. pay £3937 a symbolic payment for four and a half terms of missed education for D from April 2023 to 18 October 2024 (£3600 + £337). This is in line with our Guidance on remedies - Local Government and Social Care Ombudsman. In reaching this amount I have considered D’s age, year group, and the extra support he has received in school.
35. Within three months of the final decision the Council will:
1. provide an update about the steps taken in reminding staff and having a plan about the need for annual EHC plan reviews, and the process staff need to take following a review;
2. provide evidence of the monitoring plan for EHC plan reviews the Council has put into place and its implementation.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have found fault in the Council’s actions which has caused injustice. I have completed my investigation and closed the complaint based on the agreed action above.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman