The Ombudsman's final decision
Summary: The Council was at fault for delays in finalising an Education, Health and Care Plan for Mrs X’s son. The delays have caused uncertainty about future education provision and delayed Mrs X being able to appeal to the SEND Tribunal. The Council has already apologised for the delays, and it has agreed to 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 finalising her son’s Education, Health and Care plan (EHCP) after it carried out an annual review in 2021.
Mrs X says the delays in the process caused her avoidable distress because she was unsure about the provision that her son would get in the following academic year. The delays also prevented Mrs X in getting her appeal right in good time.
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 spoke 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 have had an opportunity to comment on my draft decision. I have considered any comments 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) 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 The Council reviewed Y’s EHCP in mid-December 2021. Y’s school sent the Council the review paperwork in late December.
When it received the paperwork, the Council wrote to Mrs X saying it was aware she was asking for a change of school placement for Y in September 2022.
In late January 2022, the Council wrote to Mrs X saying it intended to amend Y’s EHCP.
In early May, the Council sent Mrs X a draft amended EHCP and sent a consultation to Mrs X’s preferred school.
The Council then held a panel to discuss Y’s EHCP and in late June, it issued a final EHCP.
Following this Mrs X complained to the Council about her frustration at the delays and poor communication with the team dealing with Y’s EHCP.
The Council told Mrs X the delays were partly due to staff shortages and apologised, saying it accepted it was outside of statutory timescales for finalising the EHCP after a review.
Mrs X subsequently lodged an appeal with the SEND Tribunal.
My findings
There was no fault in the time the Council took between the annual review and telling Mrs X it intended to amend Y’s EHCP. Furthermore, there was no fault in the time it took between issuing an amended EHCP and then finalising it.
The code says when a Council decides it will amend a plan, it must do so without delay. The Council told Mrs X about its intention in January but did not issue an amended plan until May, after which time it begun a consultation with Mrs X’s preferred school.
This was late and is fault. This fault caused Mrs X an injustice, firstly because of the uncertainty she will have had about provision for Y in the next academic year, and also because the delays overall prevented her being given her appeal right.
Agreed action
Within six weeks of my final decision, the Council has agreed to make a payment of £100 to Mrs X to recognise the avoidable distress she experienced in the delays to Y’s EHCP.
The Council should provide us with evidence it has complied with the above actions.
Final decision
The Council was at fault for delays in finalising Y’s EHCP.
Investigator's decision on behalf of the Ombudsman