The Ombudsman's final decision
Summary: Mrs C complained about a series of delays connected to a review of her son’s Education, Health and Care Plan. We upheld the complaint, finding delays by the Council had caused Mrs C unnecessary distress and frustrated a possible appeal about the content of the plan. Mrs C was also put to unnecessary time and trouble in chasing the Council for updates. The Council has accepted these findings and at the end of this statement, we set out the action it has agreed to remedy this injustice.
The complaint
I have called the complainant ‘Mrs C’. Her son, ‘D’, has special educational needs and has an Education, Health and Care Plan (EHCP) which should be reviewed annually. Mrs C complains that since May 2021 the Council has been responsible for a series of delays around the annual review of D’s EHCP. In particular: in the timing of the annual review; in failing to confirm what action it would take following the annual review; in failing to finalise a draft amended EHCP following the annual review.
Mrs C says as a result D’s EHCP is significantly out-of-date. The delays have caused her distress and had an impact on both her and D’s mental and emotional health. Mrs C also cannot pursue any grievance with the content of the EHCP by way of an appeal to a Special Educational Needs and Disability Tribunal (SEND Tribunal) until it is finalised.
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) 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)
How I considered this complaint
Before issuing this decision statement I considered: Mrs C’s written complaint to the Ombudsman and any supporting information she provided, including that gathered in a telephone conversation with her; information provided to us by the Council in response to our written enquiries; any relevant law or guidance as referred to in the text below; the Ombudsman’s published guidance on remedies.
Mrs C and the Council were also given a chance to comment on a draft of this decision statement and / or provide me with any further evidence they considered relevant to the investigation. I took account of any submissions they made before issuing the decision statement.
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 in advance of publication on our website.
What I found
Relevant law and guidance A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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 procedure for reviewing and amending EHCPs is set out in legislation and government guidance. An EHCP must be reviewed at least once every twelve months.
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) Recent caselaw has held the proposed amendments must also be sent out within four weeks of the review. (see R (L, M & P) v Devon County Council [2022] EWHC 493 (Admin)) A council must give parents opportunity to comment on the proposed amendments, allowing a minimum of 15 days for this. If, following comments from the child’s parent or the young person, the council decides to continue with amendments, it must issue the amended EHC plan as soon as practicable. In all cases this should be within eight weeks “of the original amendment notice”. (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 EHC plan. The right of appeal is only engaged after the council issues the final amended plan.
Chronology of events The Council initially issued a EHCP for D in May 2020. Mrs C appealed the content, and her appeal was upheld by a SEND Tribunal in January 2021. In February 2021 the Council issued an amended final EHCP containing the changes ordered by the tribunal.
Mrs C says D’s school attempted to arrange a review of his EHCP in May 2021. It invited the Council to provide information in advance of the review, but it failed to respond. The review was subsequently re-arranged, taking place in November 2021. Mrs C made a complaint to the Council about the delay, which it upheld.
In February 2022, Mrs C submitted a further complaint to the Council because following the review she had received no contact explaining its intentions. The Council upheld the complaint, acknowledging the further delay. It said it would write to Mrs C and explain its position.
Mrs C was unhappy with this response, as the Council gave no timescale for when it would write to her. She explained her concern that D’s EHCP was now out of date.
In late April 2022 the Council sent a further reply to Mrs C, which was its final response to her complaint. It offered a further apology for the delay. It said it would send a ‘holding letter’ confirming it intended to amend D’s EHCP and it would forward proposed amendments in the next two weeks. It alluded to staff shortages in the relevant service area.
Mrs C waited two weeks and having heard nothing further contacted the Council again. Within two working days the Council sent Mrs C both the holding letter and proposed amendments to D’s EHCP. It invited Mrs C’s comments on the proposed amendments.
Mrs C sent in comments at the end of May 2022. She proposed various amendments including that the EHCP be updated to reflect recent assessments of D’s health and social care needs. She also asked for some changes to the education provision D received; to include a need for counselling. I note the annual review paperwork suggested the school also considered D had a need for this in November 2021.
In response, in early July 2022, the Council sent out a second amended draft EHCP. It contained many of Mrs C’s proposed amendments. However, it did not include any provision for counselling.
I understand from Mrs C the second amended EHCP arrived shortly before the family were going away and she asked for an extended period to comment. However, she subsequently sent in comments. Yet by mid-September 2022 no final EHCP had been issued.
A further review of D’s EHCP was then arranged for October 2022. The Council told Mrs C it would consider any further necessary amendments to D’s EHCP following the review and “roll these together” with the changes arising further to the October 2021 review.
In comments on the draft of this decision Mrs C points out it is now more than four weeks since the October 2022 review took place. She has received an email saying the Council intends to amend D’s EHCP further, but these amendments have not been received. Mrs C also asks us to note that for some of the events covered by this complaint, D’s case did not have a caseworker.
Findings
The Council is at fault for a series of delays associated with the review of D’s EHCP. First, it does not appear to contest that it was responsible for D’s 2021 review being delayed by around six months.
Second, it has also acknowledged failing to act promptly following that review. It took nearly six months to confirm that it would amend D’s EHCP and send Mrs C a copy of the proposed amendments.
I note that in 2021 it was common practice that local authorities were not considered to be under any set time limit to issue proposed amendments to an EHCP following an annual review. Subsequent caselaw has confirmed this was incorrect. But even allowing for the previous uncertainty, we would still have regarded a delay of this length as unacceptable.
A third failing is the Council has then delayed in issuing a final EHCP. I consider the law and guidance clear. When a Council has decided to amend a EHCP it must issue the final version within eight weeks of the proposed amendments. In between, it may issue a further amended version. But it must still issue a final EHCP within eight weeks of consulting on the first amended version.
Not only has the Council not met this timescale, but it has also then added more delay by waiting for the 2022 annual review to complete, before finalising the changes arising from the 2021 review. While I can understand the thinking behind this, the practice is contrary to the law and guidance. I also note that Mrs C has again been kept waiting more than four weeks for notification of whatever further amendments to the EHCP the Council proposes.
This series of delays is inherently undesirable. Because it inevitably runs the risk that D’s EHCP will become out of date. This raises the possibility that D’s school and / or other professionals supporting him, will not provide education or other services based on D’s current needs.
On balance, I could not conclude that was the case here. Because the amendments proposed following D’s 2021 annual review (both by the Council and Mrs C) were not focused on that section of the EHCP which covered D’s education provision.
However, Mrs C has still been caused some injustice as uncertainty. That uncertainty continues now that D’s 2022 annual review has completed and with Mrs C now again awaiting confirmation of the outcome. We regard uncertainty as a form of distress.
Mrs C has also identified a second injustice as she cannot pursue an appeal about the content of D’s EHCP until it is finalised. That would appear a real prospect here, given the Council has so far not agreed to the counselling which Mrs C believes should form part of his education provision. While this forms only a small potential part of D’s overall education provision, it is still something potentially significant to him. So the impact of the Council not yet agreeing this cannot be considered negligible.
Finally, a third injustice to Mrs C is that of time and trouble. She is the one who had to chase the Council to ensure it acted further to D’s annual review and her subsequent complaint.
Agreed action
The Council accepts these findings. It has agreed that to remedy the injustice caused to Mrs C, that it will, within 20 working days of this decision undertake the following: provide a further apology to Mrs C accepting the findings of this investigation; pay Mrs C £500 to reflect the injustice its faults have caused; this is made up of £200 each for Mrs C’s distress and her continuing loss of appeal rights, and £100 for her time and trouble ensure that it issues a final EHCP following the 2021 annual review; if it proposes further amendments following the 2022 annual review then it should issue these at the same time. It will also commit to ensuring it meets the statutory timescale for considering any proposed changes to amendments arising from the 2022 annual review and issuing a further finalised EHCP (eight weeks maximum).
The Council should provide us with evidence it has complied with the above actions.
The wider service issues raised by this complaint are to be the subject of a separate investigation by this office.
Final decision
For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mrs C. The Council accepts this finding and it has agreed action that I consider will remedy that injustice. Consequently, I can now complete my investigation satisfied with its response.
Investigator's decision on behalf of the Ombudsman