The Ombudsman's final decision
Summary: Mr E complains about delays in the Council’s reassessment of his daughter’s Education, Health and Care plan. He also complains about the contents of professionals’ reports used in the assessment. The Ombudsman has discontinued our investigation. This is because we cannot know the injustice, caused by any delay, until we know the outcome of the appeal Mr E has lodged.
The complaint
The complainant, whom I shall refer to as Mr E, complains: the Council has delayed completing an annual reassessment of his daughter’s (whom I shall refer to as F) Education, Health and Care (EHC) plan; the reports the EHC plan relies on are flawed, as they are not based on needs assessments.
Mr E says the injustice to F is she has missed provision that should have been in the EHC plan. As a remedy, he would like extra support for F over the next two to three years.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully.
We cannot investigate a part of the complaint that someone has appealed to a tribunal about. (Local Government Act 1974, section 26(6)(a), as amended) We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
How I considered this complaint
I considered the complaint from Mr E and spoke to him. I also considered information he sent after we spoke.
What I found
Legal and administrative action A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them.
The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
There is a right of appeal to the Special Educational Needs and Disability (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.
The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. This 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days to: make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan; and require the council to arrange a meeting between them and an officer of the council at which the draft plan can be discussed. (Special Educational Needs and Disability Regulations 2014) Where the Tribunal orders a council to amend an EHC plan, the council should amend the EHC plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) What happened F is a secondary school age child who has had an EHC plan for several years. At the February 2021 annual review meeting, the school’s view was F’s outcomes were largely on target and continuing.
The Council should have given Mr E its decision on whether it was going to maintain, amend or discontinue the EHC plan within four weeks of this meeting. It did not do so and only responded at the end of April, after Mr E chased a response. At the end of May, the Council issued its decision to make no changes to F’s EHC plan.
Mr E and his partner asked for a mediation session with the Council. This should have happened in July, but took place at the beginning of August. The outcome of the session was the Council agreed to a reassessment of F’s EHC plan, after seeking reports from several medical and social care professionals. It agreed to complete the reassessment by mid-November.
The Council issued its first draft of F’s revised EHC plan in mid-December 2021. After a series of amendments, following comments from Mr E and his partner, the Council issued its final EHC plan in March 2022.
From February 2022 Mr E was formally complaining about the process. He tells me his main concern was (and remains) that most of the professional reports the Council has received do not start, as they should, from an assessment of F’s needs. Rather they recommend support based on what is available.
The Council’s complaint responses accepted delays in the assessment. It apologised and explained its SEND Service could not cope with an increased demand for its services. The Council provided its final complaint response at the end of April 2022.
On 1 May, Mr E appealed to the Tribunal. He also complained to the Ombudsman.
Analysis The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. One of those restrictions is that we cannot investigate matters that are under appeal. The Tribunal can consider Mr E’s complaint about the contents of the reports for the EHC plan. So that is not something the Ombudsman can investigate.
We can investigate the Council’s delays in its assessment. But we cannot know the injustice caused by the delays, until we know the decision of the Tribunal. So, I have discontinued my investigation. Mr E can return to the Ombudsman after the Tribunal has made its decision. We will then be better able to assess the injustice to F and her family from the delays in the reassessment.
Final decision
I have discontinued my investigation.
Investigator's decision on behalf of the Ombudsman