The Ombudsman's final decision
Summary: We upheld Ms X’s complaints about delay in issuing her child Y’s Education, Health and Care Plans, about poor communication and complaint handling and a delay in appeal rights. The Council will apologise, make a payment to reflect avoidable distress and time and trouble and loss of educational provision (specialist occupational therapy) caused by the delay in issuing a final amended plan after a tribunal order.
The complaint
Ms X complained the Council: Reduced speech and language (SLT) and sensory occupational therapy (OT) on her son Y’s Education, Health and Care (EHC) plan; Removed social care provision; Named a type of school on the EHC plan and tried to push her to accept a school that was too far away and did not follow up on consultations; Refused to fund school transport; Delayed issuing a final EHC plan following an annual review meeting in 2021, did not communicate adequately with her and changed caseworker; Provided a poor complaint response; and Failed to follow the timescales following a tribunal’s decision.
Ms X said this caused avoidable distress and time and trouble and delayed her right of appeal.
Ms X said Y also missed out on sensory integration OT in his post-16 placement. And it caused Y avoidable distress as well as he is aware of what has happened.
The Ombudsman’s role and powers
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.
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 significant injustice, or that could cause injustice to others in the future 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended) A legal case in the Court of Appeal confirmed if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) We provide a free service, but we must use public money carefully. We do not start or continue an investigation if we decide: any injustice is not significant enough to justify our involvement, or we could not add to any previous investigation by the organization.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
What I have and have not investigated I have investigated complaints (e) to (g) from May 2021 even though some events are late (see paragraph 12). Ms X tried to resolve these matters with the Council’s complaint team, so this was a good reason for her delay contacting us.
I have not investigated complaints (a) to (c) because Ms X appealed or could have appealed these matters to the SEND tribunal. This means these complaints are not within our remit because of the case set out in paragraph nine.
I have not investigated complaint (d) because Ms X used the Council’s transport appeal process and the decision to refuse transport was overturned. There is no significant injustice and an investigation would not add anything.
How I considered this complaint
I considered Ms X’s complaint to us and supporting documents and the Council’s response to her complaint. I discussed the complaint with her. I considered comments on a first draft of this statement.
Ms 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
Law and guidance A child with special educational needs may have an Education, Health and Care (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 tribunal can do this.
The procedure for reviewing and amending EHC plans is: 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 within four weeks of the annual review meeting. (Special Educational Needs and Disability Regulations 2014, section 22(2) and SEN Code paragraph 9.194) 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. (SEND Regulations 2014, section 22(3) and SEN Code paragraph 9.196) For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.
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 when the final amended plan is issued.
Where the SEND Tribunal makes an order requiring a council to amend the special educational provision in an EHC plan, the council must issue the amended plan within five weeks of the order. (SEND Regulations 2014, Regulation 44) The Council issued a SEND communications protocol in November 2023. This is guidance to staff with performance measures. It sets out the Council’s expectations for the frequency and manner of communication with those using the SEND service. Emails are supposed to have a response within five working days and phone calls two. If a member of staff is off work or unavailable, their calls go through to a contact team. The contact team can give families general updates if their case worker is not available.
The Council also reviewed its Tribunal team’s procedures during this investigation. The Council told me: At the time of Ms X’s appeal, the Tribunal team had many unallocated appeals and no administrative support. There was also unplanned long-term absence of team member(s) This meant there was a delay in the SEND Team being notified of the conclusion of the appeal.
The following changes are in place: All tribunal cases are allocated an officer within 2 weeks of an appeal being registered Weekly triage meetings with the SEND teams All requests to conceded are signed off my management in the Tribunal team If staff are off work for long periods, cases with immediate deadlines are allocated to other staff.
What happened Y is in post-16 education in Year 13 at present and has had an EHC plan for several years.
There was an annual review meeting in May 2021 when Y was in Year 10. The Council issued a final amended EHC plan for Y in January 2022. Section F of the Plan said under the sub-heading ‘the role of the OT for Year 11 (from September 2022)’ set out one-to-one sensory integration OT provision for Y of 44 hours in Year 11 by a specialist occupational therapist. Section I of the Plan named Y’s placement for the remainder of Year 10 and his post-16 placement was blank as the Council had not yet identified a placement. Ms X appealed the January 2022 Plan to the SEND Tribunal (the placement and provision.)
In March the Council issued a further amended EHC plan naming a special school as Y’s placement from September 2022.
In July, the Council issued a further amended EHC Plan. The section about OT provision was different from the January and March 2022 Plans. It did not specify a number of hours of OT or set out the therapist’s qualifications. It just said Y would have direct weekly sessions in Year 11.
The parties used the working document process to agree the wording of a plan and the Tribunal ordered the Council to issue a final plan in line with the working document on 15 February 2023.
Ms X complained to the Council in June. The Council didn’t respond. So Ms X escalated her complaint.
The Council issued an amended final plan post-Tribunal on 31 August 2023. This has the 44 hours OT provision set out in the January 2022 plan (see paragraph 26) The Council’s second stage response in September apologised for the delay and for not responding under the first stage of the complaints process. The response went on to say: There were staff gaps in the complaints team that had been addressed by recruiting more staff and commissioning external investigators; It accepted the Council missed the deadline to issue the post-Tribunal EHC plan. The order was in February; the plan was not issued till September; The Council’s Tribunal team will review its practices and identify measures to avoid the same thing happening again; It upheld her complaint about poor communication; The SEND service would agree a communication plan with her setting out how often she would receive updates relative to key points in Y’s education; There hadn’t been any missed special educational provision. Y had been attending his placement and the provision on the plan had been delivered; The Council offered a payment of £450 made up of: £300 to reflect the distress caused by delay in complaint handling; and £150 for her time and trouble.
Ms X told me she thought school had been delivering functional OT but had not got the sensory integration OT on the amended final plan post-Tribunal.
In September 2023, the case officer emailed school asking about the OT provision Y received since starting the placement in September 2022. The school replied saying Y last year, Y received: Gross motor/sensory breaks throughout the day by teachers and overseen by an OT 45-minute group OT sessions (weekly) 25-minute daily movement or sensory sessions implemented by staff.
In April 2024, Y’s case officer emailed Ms X saying she could not see a communication plan. The case officer said she would contact Ms X every 3rd Friday with an update.
Findings
The Council delayed issuing a final EHC plan following an annual review meeting in 2021, did not communicate adequately with her and changed caseworker As set out in paragraph 20(a) and (b), Y’s final amended EHC plan should have been issued within 12 weeks of the annual review meeting in May 2021, so by August 2021 at the latest. The final plan was not available until January 2022, a delay of around five months which was fault causing avoidable distress and delaying Ms X’s right of appeal. (For clarity: the Council issued another amended EHC Plan at the end of March 2022, this named Y’s post-16 placement. This was in line with SEND Code as I have set out in paragraph 20(c).)
The Council provided a poor complaint response The Council accepted it delayed and did not provide a response at the first stage and has apologised for its fault. It offered a symbolic payment and an action plan to minimise recurrence. This is a partial remedy for Ms X’s avoidable frustration and time and trouble.
The Council failed to follow the timescales following a tribunal’s decision There was fault by the Council. Y’s amended EHC plan post-tribunal was due by 22 March 2023 at the latest to be compliant with Regulation 44 of the SEND Regulations. The Council did not issue it till 31 August, a delay of five months. This caused avoidable distress and inconvenience.
For the summer term of 2023 (March to July), Y’s OT provision should have been as set out in the August 2023 plan. The information from the school indicates what the OT provided was not in line with the post-Tribunal plan (it was group provision, when the plan says one-to-one) and so he missed out on some of the specialist sensory integration OT input he was entitled to.
Agreed action
The Council will, within one month of my final statement: Apologise to Ms X again and also to Y for the avoidable distress and time and trouble. The apology should be in line with the advice in our published Guidance on Remedies; and Make Ms X a payment of £700 to reflect the avoidable distress, time and time and trouble caused by poor communication, poor complaint handling and delayed appeal rights.
Make Y a payment of £250 to reflect avoidable his distress.
Make Y an additional payment of £500 to remedy the loss of specialist individual OT support caused by the delay in issuing an amended Plan post-Tribunal, comparing the OT provision in the post Tribunal plan with what the school said it delivered between March and July 2023.
The Council has increased staffing to its complaints team and this is an appropriate action in response to the complaint about delays in that team. The Council also introduced a communication procedure for staff and amended the Tribunal team’s procedures including increasing staff. It also offered Ms X a communication plan. This is an appropriate means of reducing the risk of recurrence of the fault I have found.
We cannot remedy any missed special educational provision during the appeal period as the Courts have confirmed in the Millburn, Bradford and Field legal cases summarised earlier in this statement (in paragraphs 9 to 11). So I have not recommended a remedy for alleged missed provision between January 2022 and March 2023.
The Council should provide us with evidence it has complied with the actions (a) to (d) in paragraph 41.
Final decision
We uphold Ms X’s complaints about delay in issuing her child Y’s Education, Health and Care Plans, about poor communication and complaint handling and a delay in appeal rights. The Council will apologise, make a payment to reflect avoidable distress and time and trouble and loss of educational provision (specialist occupational therapy) caused by the delay in issuing a final amended plan after a tribunal order.
I completed the investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman