The Ombudsman's final decision
Summary: The Council was at fault for delays after it reviewed an Education, Health and Care plan, and for incorrectly telling Mr X he could appeal to the SEND Tribunal. The delays caused Mr X avoidable distress and uncertainty about future provision for his son, and he went to the time and trouble of preparing for a SEND Tribunal to which he had no right of appeal. The Council has apologised for this oversight and has agreed to offer a financial remedy to properly recognise the injustice to Mr X.
The complaint
The complainant, whom I will refer to as Mr X, says the Council did not comply with the statutory time limits in amending and finalising his son’s Education Health and Care Plan (EHCP) after a review in 2021. Mr X also complains that the Council was at fault for telling him twice he had a right of appeal when he did not.
Mr X says the delays in the process caused uncertainty about provision for his son. He says this resulted a delayed right to appeal to the SEND Tribunal, which meant his son’s provision was also delayed.
I will refer to Mr X’s son as Y.
The Ombudsman’s role and powers
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) 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) 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.
How I considered this complaint
I spoke to Mr X and considered the information he provided.
I considered the Council’s comments and the documents it provided.
I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should have happened The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) Where a 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) plan 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) The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176) 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 EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196) 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 EHCP. The right of appeal is only engaged when the final amended plan is issued.
What happened In mid-January 2021, Y’s school reviewed his EHCP. The review, having considered reports from relevant professionals, recommended amendments to sections ‘B’ and ‘F’ of the plan. The school sent this review paperwork along with the reports to the Council in early February.
In mid-February, the Council told Mr X that it was considering whether to amend Y’s EHCP. Included in this letter was a written paragraph and a guidance note, which told Mr X he had a right of appeal to the SEND Tribunal. It told Mr X he had two months to appeal.
In late March, eleven weeks after the review, the Council told Mr X it would amend Y’s EHCP and referred to three reports which it would use as evidence to support the amendments. This letter also included a paragraph explaining Mr X had a right of appeal to the decision to amend the EHCP. It did not include the guidance note.
In early April, the Council sent Mr X a draft amended EHCP, which included amendments to sections ‘B’ and ‘F’. The Council invited Mr X’s comments and explained he would then be able to consult with the Council, after which, the Council would issue a final EHCP.
In May, before the Council had issued a final EHCP, Mr X registered an appeal to the SEND tribunal.
Also in May, after it was aware Mr X had registered an appeal, the Council explained to him in an email that its information about his appeal right in its February letter was wrong (he did not have a right of appeal at that point). It apologised.
In the same email, the Council said it was also considering Mr X’s views on the draft EHCP and said it did not agree with the level of provision a report had highlighted. It said Mr X would have his right to appeal the EHCP, once the Council had issued a final EHCP.
Mr X wrote back saying it was his interpretation that the February letter had included a ‘decision’, which allowed him to appeal the Council’s decision on the EHCP.
Mr X says had a mediation certificate that was about to expire and wanted to register an appeal while the certificate was still valid.
Over several months, the Council and Mr X tried to agree a final EHCP and the Council issued four draft plans in that time.
In mid-October the SEND tribunal refused Mr X permission to appeal and in late October the Council issued a final EHCP. Mr X then registered another appeal.
Mr X made a complaint, and the Council wrote to him and apologised for an administrative error in the March letter which had not properly set out Mr X’s appeal right. It said the team responsible for this had seen an increase in its workload.
The Council also said the delay in issuing a final EHCP was because it was working with Mr X over amendments to the EHCP.
My findings
The Council told Mr X he had an appeal right when it updated him to say it was considering his request for amendments to Y’s EHCP. This was fault: there was no decision at that stage which could be appealed.
The law says within four weeks of a review meeting, the Council must tell parents what it intends to do (which, in this case, was to amend Y’s EHCP). The Council told Mr X about this decision in late March, which was late, for which the Council was at fault.
In its letter telling Mr X about its decision to amend Y’s EHCP, the Council, again, told him he had an appeal right. This, again, was wrong, for which the Council was at fault.
The Council has acknowledged this mistake and has apologised. It also gave Mr X the correct information in May before he submitted his appeal. Nonetheless, this mistake caused him to go to the time and trouble of preparing for an appeal which he had no right to submit.
The law says when the Council has decided to amend an EHCP, it should start doing so ‘without delay’. The Council first sent Mr X a draft amended EHCP in April, which was shortly after its decision to make amendments. This was not fault.
After deciding to amend Y’s EHCP, the Council should have issued the final plan within eight weeks of the date it sent the original amendment notice (which it sent in March 2021).
The Council did not issue a final plan until October 2021. This was very late.
The Council says it delayed issuing a final plan because it was trying to resolve the amendments with Mr X. Nonetheless, the guidance is clear, and this was fault by the Council. It delayed Mr X’s appeal right and caused him uncertainty about future provision.
Agreed action
Within six weeks of the date of this decision, the Council has agreed to: Make a payment of £100 to Mr X to recognise the time and trouble he went to in preparing for a SEND Tribunal he was not able to make an appeal to.
Make a further payment of £200 to Mr X to recognise the avoidable distress and uncertainty he experienced caused by overall delays in finalising Y’s EHCP after the 2021 review.
Final decision
The Council was at fault for delays in finalising Y’s 2021 EHCP.
Investigator's decision on behalf of the Ombudsman