The Ombudsman's final decision
Summary: The Council was at fault because it delayed issuing an amended education, health and care plan after an annual review. It also mishandled the formal complaint about this, meaning there was a significant delay in the response to that too. This caused the complainant and her son avoidable frustration, which the Council has agreed to remedy.
The complaint
I will refer to the complainant as Mrs C.
Mrs C complains the Council delayed issuing an amended education, health and care (EHC) plan for her son, F, after a review. This meant he did not have a post-16 educational placement arranged for the new academic year, and delayed Mrs C’s ability to appeal against the plan’s contents.
Mrs C also complains about the Council’s handling of her complaint about this.
The Ombudsman’s role and powers
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) 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.
The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law or tribunal, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
How I considered this complaint
I reviewed Mrs C’s correspondence with the Council.
I also shared a draft copy of this decision with each party for their comments.
What I found
The following is a summary of the key events related to this complaint. It is not intended to provide a detailed description of everything that happened.
F has a developmental disorder and is subject to an EHC plan. He turned 16 during the 2021/22 academic year, and so was due to start post-16 education in September 2022.
In November 2021 the Council carried out an annual review of F’s EHC plan. As part of the review, Mrs C and F’s school requested amendments be made to some of the content.
In May 2022, the Council issued an amended draft EHC plan for F. This did not include some of the amendments Mrs C had requested, and so the Council issued another amended version of the plan in July.
The Council then issued the final amended version of the plan on 27 July. The new plan did not name a post-16 placement for F, instead simply saying he should attend a mainstream institution (as opposed to a specialist placement for young people with disabilities).
Prior to this, on 16 March, Mrs C had made a formal complaint to the Council about its failure to issue the plan. She pointed out, in particular, that it had a statutory duty to issue the plan by 31 March because C was due to start post-16 education in September.
Mrs C chased the Council for a response on 1 April, to which it responded confirming it had received her complaint and would respond by its corporate deadline of 20 working days on 13 April.
After still receiving no response, Mrs C complained to the Ombudsman on 17 June. We referred the matter back to the Council, which wrote to Mrs C to explain there had been an administrative error, and would now seek to respond to the complaint by 30 June. The Council then wrote to Mrs C again on 30 June to explain it needed more time to respond.
The Council then sent its complaint response on 12 July. It accepted there had been a delay in issuing F’s amended EHC plan, and, as part of this, it had also not consulted with any possible post-16 placements for F to attend from September. It acknowledged this had caused both Mrs C and F significant distress.
The Council also explained it had wrongly closed Mrs C’s complaint about F, because it had confused it with a different complaint she had raised about another child. The Council apologised for this and acknowledged it had missed an opportunity to address Mrs C’s concerns about F sooner.
The Council explained it had now made the requested amendments to F’s plan and, with Mrs C’s approval, could finalise it. It said it had been unable to name a placement for F, but had named a type of placement. The Council also sought to arrange a call with Mrs C to discuss what the best type of placement would be for F, considering his interests.
However, the Council declined to offer Mrs C a financial remedy, as she had requested.
Legislative background Education, Health and Care Plans 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 EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this.
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.
Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the placement named in their child’s EHC Plan.
Annual reviews The SEND Code of Practice: 0 to 25 years (the SEND Code of Practice), published by the Government, sets out what councils must do to support children with special educational needs (SEN). The Code says: EHC plans must be reviewed at least every 12 months; the purpose of the annual review is to consider whether the special educational provision and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain, cease or amend the plan; within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan (Special Educational Needs and Disability Regulations 2014, Regulation 20 (10)); and when a council decides to amend the EHC Plan, the final Plan should be sent as soon as practicable and within eight weeks of the date when the council sent the parents or young person the EHC plan and proposed amendments (SEND Code of Practice: 0 to 25 year (January 2015, as amended), paragraphs 9.196 and 9.197).
For a child who is due to start post-16 education in September, councils must also issue an EHC plan naming their post-16 placement by 31 March of the same calendar year.
Analysis Mrs C complains the Council delayed issuing F’s EHC plan, missing both the deadline for doing so after the review, and also the general statutory deadline of 31 March. This meant F did not have a named placement to start in September, and delayed her right to appeal against the plan.
I must first explain a jurisdictional point here. Mrs C has confirmed to me that, since receiving the final EHC plan in July, she has submitted an appeal to the SEND Tribunal which is yet to be heard. Her appeal includes both points about the content of the EHC plan, and the fact the Council did not name a placement in it.
Separately, I understand a placement – which Mrs C is satisfied with – has now actually been arranged for F, and he is due to start there shortly.
As I explained at the beginning of this statement, once a person has used their right of appeal to the SEND Tribunal, we no longer have jurisdiction to investigate the same matters. This remains so even if they then withdraw their appeal, or part of it.
Therefore, as Mrs C has appealed about F’s placement, this is not something I am able to consider. This includes both the fact that no placement was arranged while Mrs C was still waiting for the Council to issue the plan, and also the fact no placement was arranged even after the plan was issued.
However, although I cannot consider the consequences of the Council’s failure to name a placement, I can consider the more general point that Mrs C’s right of appeal was delayed.
There was, evidently, a significant delay here. From the date of F’s annual review, the Council had a maximum of four weeks to confirm it intended to amend his plan, and a further eight weeks to actually issue the amended plan. F’s review was in November, meaning his new plan should have been issued at the latest in late February or early March. This is fault.
It is clear the additional four months’ wait caused Mrs C and F both a significant degree of frustration. It also meant Mrs C was unable to lodge an appeal with the Tribunal, which is something she clearly wished to do. I am satisfied, therefore, Mrs C and F both suffered an injustice arising from the Council’s fault.
It is positive the Council has acknowledged these faults and the distress it caused Mrs C and F, but I consider it would also be appropriate for the Council to offer a financial remedy here. I make a recommendation to this effect.
I also consider Mrs C was put to unnecessary time and trouble pursuing her complaint with the Council. Although we recognise that pursuing a complaint inevitably involves some effort on the part of the complainant, the Council made an avoidable error here by confusing Mrs C’s separate complaints. Not only did this mean there was a delay in dealing with the complaint, as the Council has recognised, it meant it missed an opportunity to address the complaint sooner.
For this reason, I make a further recommendation for a financial remedy here.
I note Mrs C considers F should also be compensated for the distress he suffered at not knowing where he would be attending education from September. While I do not dismiss this, this issue is placed outside the Ombudsman’s jurisdiction by her appeal, for the reasons I have explained earlier. I am therefore unable to consider or recommend a remedy for this point of complaint.
Agreed action
Within one month of the date of my final decision, the Council has agreed to offer: Mrs F and C £300 each to recognise their frustration and distress at its delay in issuing the EHC plan; and Mrs F a further £150 to reflect the time and trouble she went to pursuing her complaint.
Final decision
I have completed my investigation with a finding of fault causing injustice.
Investigator's decision on behalf of the Ombudsman