The Ombudsman's final decision
Summary: The Council was at fault for delays in amending and finalising an Education, Health and Care Plan. The delays will have caused uncertainty about future provision for Mrs X’s son. The Council has already apologised for delays in holding an annual review meeting and it should now offer a financial remedy to properly recognise the injustice to Mrs X.
The complaint
The complainant whom I will refer to as Mrs X, says the Council did not follow the relevant time limits in amending and finalising her son’s Education, Health and Care plan (EHCP), after it carried out an annual review in 2022.
Mrs X says the delays in the process caused her avoidable distress because she was constantly following up on what the Council were doing.
Mrs X also says the delays caused her and her son uncertainty about future provision for her son, because of a delayed right to appeal the final plan.
I will refer to Mrs 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 wrote to Mrs X and considered the information she 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.
Mrs 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 EHC plan, 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 EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196) What Happened Mrs X says the Council should have carried out an annual review of Y’s EHCP in December 2021. The Council delayed this meeting until January 2022 and then cancelled that meeting at short notice.
In its response to a complaint Mrs X subsequently made, the Council apologised for the delay and said the January meeting had to be rearranged due to the sickness of a staff member.
In February 2022, the Council carried out the review of Y’s EHCP. Mrs X had asked the Council to amend Y’s EHCP.
In early-April, The Council told Mrs X they had decided to amend Y’s EHCP.
In early May, the Council wrote to Mrs X with the EHCP amendment notice. The Council included a copy of Y’s annual review report and told Mrs X to respond with any comments within 15 days.
Mrs X responded to this by sending the Council her comments later that same day.
In July 2022, the Council sent Mrs X a final EHCP together with her right to appeal the contents of the EHCP.
My Findings
Mrs X complained to the Council about the delays to the initial meeting and the cancellation at short notice. This was fault, however the Council has already apologised to Mrs X and given her an explanation. This is sufficient remedy for any injustice Mrs X suffered here.
After the annual review meeting in February, it was not until April that the Council told Mrs X they would amend Y’s EHCP, this was late and is fault. It should have sent this decision to Mrs X within four weeks of the annual review meeting.
The code says after it has sent a child’s parents the amendment notice and received their comments, the Council have to finalise the EHCP within eight weeks. The Council sent Mrs X the amendment notice in May and did not finalise the plan until 10 weeks later. This was late and is also fault.
The fault relating to delays in the process overall would have caused Mrs X and Y uncertainty about future provision and caused an injustice to Mrs X.
Agreed action
Within six weeks of my final decision, the Council should make a payment of £100 to Mrs X to recognise the time and trouble she went to in following up progress with Y’s EHCP.
Final decision
The Council was at fault for delays in amending and finalising Y’s EHCP.
Investigator's decision on behalf of the Ombudsman