The Ombudsman's final decision
Summary: Miss X complained about the Council’s delay in reviewing her child’s Education Health and Care plan and its withdrawal of support during the school year 2022 to 2023. Miss X said the lack of support severely affected her child’s education and wellbeing and so she wanted it reinstated. We found there was avoidable delay by the Council. As the Council had completed the review, it agreed to make a symbolic payment to Miss X of £600 in recognition of the distress, time and trouble she was caused by its delay.
The complaint
Miss X complained about how the Council handled the review of her child’s (in this statement called ‘C’) Education, Health and Care Plan (‘EHC Plan’) because: there was avoidable delay in the 2023 review; after the 2023 review meeting, it removed 1:1 support agreed for 2022/2023 before the end of that school year; and the proposed amended EHC Plan did not include the 1:1 support agreed as needed at the 2023 review meeting.
Miss X said the delay and removal of support affected C’s education, mental health and self-esteem. What happened also caused her stress, severe anxiety and affected her ability to work.
Miss X wanted the Council to reinstate the previously agreed support.
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 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) The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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 the final decision on this complaint with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated Miss X complained about the amended final EHC Plan not including the 1:1 support C needed (see third bullet point to paragraph 1 of this statement). So, Miss X was unhappy with the educational provision in C’s amended EHC Plan. Miss X had a right of appeal to the SEND Tribunal about the educational provision in C’s Plan. I saw no good reason why Miss C could not reasonably have used her appeal rights. I, therefore, did not investigate this part of Miss X’s complaint (see paragraph 5). My investigation focused on the issues set out in the first and second bullet points to paragraph 1. In summary, these were the time taken to complete the 2023 review and withdrawal of 1:1 support during school year September 2022 to July 2023.
How I considered this complaint
I: considered Miss X’s written complaint and supporting papers; talked to Miss X about the complaint; asked for and considered the Council’s comments and supporting papers about the complaint; and shared a draft of this statement with Miss X and the Council and considered any comments received before making a final decision.
Background
A child or young person with special educational needs may have an EHC Plan. This document 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 their needs, education, or the name of the educational placement. Only the SEND Tribunal or the council can do this.
The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135) The council must arrange to review the EHC Plan at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Where the 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 the Government’s Special Educational Needs and Disability Code of Practice, 2015 (the SEN Code) paragraph 9.194). Case law sets out this should also happen within four weeks of the review meeting. And any final amended EHC Plan must be issued within 12 weeks of the review meeting to complete the review. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) What happened An annual review meeting into C’s EHC Plan took place in Spring 2023. Hearing nothing from the Council about C’s EHC Plan for four months, Miss X complained. In summary, Miss X said the Council had failed to complete the review of C’s EHC Plan within the legal timeframe. And, the Council had already stopped C’s 1:1 support when it should have remained in place for the school year 2022/2023. Miss X said the Council was not responding to her telephone calls and C’s education was being severely hampered. Miss X asked the Council to complete the review of C’s EHC Plan without amending it and reinstating the 1:1 support.
A month later the Council responded to Miss X’s complaint. The Council apologised for the unacceptable delay in completing the review of C’s EHC Plan and the stress this had caused. The Council upheld the complaint and said it would action C’s review within ten working days. The Council partially upheld Miss X’s complaint about withdrawing 1:1 support as it had not discussed the matter with her. However, it said C’s 2022 EHC Plan did not show 1:1 support. The Council also apologised for the frustration caused by its poor communication with Miss X. The Council said it was investing in its special educational needs service, including staff training to improve its effectiveness and communication.
The Council emailed Miss X ten working days later to say it would amend C’s EHC Plan and send her details of the proposed changes within the next six weeks. Miss X responded saying the plan had been agreed at the review meeting and she would not accept any changes. And, after a further ten days, Miss X continued with her complaint saying, despite upholding her complaint at stage 1, the Council had yet to action C’s EHC Plan. Miss X repeated she would not accept changes to the plan, which she believed would mean the Council removing C’s 1:1 support to save money. Miss X said the uncertainty about the plan was affecting C’s mental health and the Council still was not returning her telephone calls.
A few days later, and six months after the review meeting, the Council wrote to Miss X sending her a proposed amended draft EHC Plan and inviting her written comments. (I saw no evidence Miss X sent any written comments to the Council.)
The Council also responded to Miss X’s stage 2 complaint. The Council said it had actioned C’s EHC Plan as it had emailed her within ten working days to say it had decided to amend C’s plan. A ‘decision to amend’ notice was part of the review procedure, which should take place within four weeks of the review meeting. It had then issued a ‘Proposed Amended’ plan. The Council did not uphold Miss X’s complaint and signposted her to the Ombudsman.
The Council completed the 2023 review of C’s EHC Plan ten weeks later, sending Miss X a copy of the amended final plan, which did not include 1:1 support for C. The Council also gave Miss X information about her SEND Tribunal appeal rights. Miss X then complained to the Ombudsman.
Consideration Delay The Council did not complete the 2023 review of C’s EHC Plan within 12 months of the 2022 review. It also did not complete the 2023 review process within 12 weeks of the 2023 review meeting. Rather, it took the Council 36 weeks from the 2023 review meeting for it to issue C’s amended final EHC Plan. So, there was significant avoidable delay by the Council in carrying out the 2023 review of C’s EHC Plan, which was fault. I also found the avoidable delay would likely have been frustrating for Miss X and delayed her ability to appeal any amended final plan. So, I found the fault caused injustice.
I acknowledge the Council’s acceptance, in responding to our enquiries on Miss X’s complaint, that it had acted with fault. The Council said it had not completed the 2023 review within the legal timeframe and so had delayed Miss X’s appeal rights. The Council also accepted its inadequate communications had put Miss X to avoidable time and trouble in bringing her complaint to the Ombudsman.
Removal of support The evidence showed that C’s 2022 EHC Plan did not provide for 1:1 support. Rather, in accepting C as a pupil, the school had asked the Council to fund extra support to help with C’s transition to the school. The agreement to fund transitional 1:1 support was between the school and the Council. I saw no evidence the Council contacted Miss X about the added support. And, when the funding stopped after the Spring 2023 school term, the evidence showed the school updated Miss X about ending the 1:1 support, not the Council.
The school continued to support C but told the Council it could not do so long term without added funding. However, the proposed amended and final amended EHC Plans issued by the Council during 2023 did not include 1:1 support. On receiving the final amended EHC Plan, Miss X had a right of appeal to the SEND Tribunal about the absence of 1:1 support for C. And the evidence showed the Council sent Miss X information about her appeal rights on issuing the amended final EHC Plan.
In the circumstances here, I did not find the Council at fault in ending the funding for transitional 1:1 support, which was not included in C’s 2022 or 2023 EHC Plans.
Agreed action
I found fault causing injustice (see paragraph 21). The Council had apologised to Miss X and issued a final amended EHC Plan (see paragraphs 16 and 20). So, to put right the remaining injustice to Miss X, the Council agreed (within 20 working days of this statement) to: pay Miss X £400 being a symbolic payment to recognise the avoidable distress she was caused due to its avoidable delay in reviewing C’s EHC Plan; and pay Miss X £200 being a symbolic payment to recognise the avoidable time and trouble she was put to by its inadequate complaint communications.
The Council should provide us with evidence of its compliance with the agreed actions set out at paragraph 26.
The Council explained it had prepared, and was now carrying out, a strategic improvement plan for its special educational needs service. The plan responded to the findings of a special education needs and disabilities area inspection completed in Summer 2023. The improvement plan included specific targets for improving the timeliness of EHC Plan annual reviews. In the circumstances, I made no recommendations for service improvements at this point.
Final decision
I completed my investigation, finding fault causing injustice, on the Council agreeing the actions at paragraph 26 of this statement.
Investigator's decision on behalf of the Ombudsman