The Ombudsman's final decision
Summary: Mr X complained about the Council’s actions in relation to his child’s Education, Health and Care Plan. The Council was not at fault.
The complaint
Mr X complained about the Council’s actions in relation to his child’s, Y, Education, Health and Care Plan (EHC Plan). He said: the Council failed to provide him information about his right of appeal; and the Council made unprofessional comments about him and his family.
Mr X said this caused him to delay appealing the Council’s decision to the SEND Tribunal which as a result, caused Y to miss out on several months of education. Mr X also said he no longer has trust in the Council. He wants the Council to apologise to him and provide Y with a financial remedy to acknowledge the education they missed.
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) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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
I spoke with Mr X and considered the information he provided.
I considered the information the Council provided.
Mr X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.
What I found
Education, Health and Care Plans Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
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.
If a person disagrees with the content of an EHC Plan or an amended EHC Plan, they have a right of appeal to the SEND Tribunal. They must appeal within two months of the date of when the decision was made.
What happened Mr X’s child, Y, has special educational needs and an EHC Plan.
Y was due to start secondary school in September 2021. In February 2021, the Council issued Y’s final EHC Plan with the name of Y’s secondary school. The Council sent the EHC Plan to Mr X electronically and by post.
Mr X was unhappy with the secondary school Y was due to attend. He therefore contacted the SEND Tribunal in June 2021 to appeal the Council’s decision. However, the SEND Tribunal told Mr X he could not appeal without presenting the decision letter which the Council would have sent to him with the final EHC Plan. Mr X told the SEND Tribunal the Council did not send him the decision letter.
Mr X contacted the Council and asked it for the decision letter. Instead, the Council re-issued the final EHC Plan in July 2021. This was because Mr X could not appeal the Council’s decision as the time limit for appealing its decision had lapsed. The Council sent Mr X the EHC Plan with the decision letter. Mr X received both documents and was able to submit his appeal about the Council’s decision to the SEND Tribunal.
Mr X said Y was unable to start secondary school in September 2021 as the placement named in their EHC Plan was not suitable to meet their needs. Between September 2021 and April 2022, Y did not receive an education at a school setting. Mr X said he home schooled Y during this period. In April 2022, Y started secondary school which Mr X said was suitable to meet their needs.
Mr X’s complaint to the Council Mr X complained to the Council. He said the Council failed to send him a decision letter with his appeal rights when it sent him the final EHC Plan in February 2021. Mr X said this caused him to appeal to the SEND Tribunal late which delayed finding a suitable school for Y.
The Council responded to Mr X and told him it was certain it had sent the decision letter with the final EHC Plan in February 2021, electronically and by post. The Council also told Mr X it had emailed him the day before it had him sent the EHC Plan with the decision letter, informing him it had to finalise the EHC Plan and that this would give Mr X a right of appeal. The Council said its email contained a link to the relevant website which provided further information on appealing to the SEND Tribunal. The Council continued and said after it had sent the final EHC Plan and decision letter to Mr X, Mr X had emailed the following day confirming he had received the EHC Plan.
Mr X submitted a subject access request to the Council. He wanted to review the information the Council had recorded in relation to it issuing the final EHC Plan and what actions it had taken. Mr X reviewed the information the Council had sent him and found some internal emails between Council employees were unprofessional towards him and his family. Mr X complained to the Council about it.
The Council responded to Mr X and said it had reviewed the emails which Mr X found upsetting. It did not agree with Mr X they were unprofessional.
Mr X remained unhappy and complained to us.
My investigation As part of my investigation, I spoke with Mr X in relation to the missing decision letter. Mr X told me the Council sent him the final EHC Plan via email and post in February 2021. He had received both copies. Mr X said he later became aware when the Council had sent him the EHC Plan electronically, it had sent him the decision letter via a secure portal. He said the Council should have told him it had sent the decision letter this way. Mr X added he had accessed documents via the secure portal system before.
Mr X said he could not say for certain if the Council had sent him the decision letter with the EHC Plan via post.
Mr X said when the Council issued the final EHC Plan in February 2021, he contacted the Council on numerous occasions to get the decision letter and each time, the Council said it would get it sorted.
Mr X provided me with the subject access request he had obtained from the Council. I reviewed the internal emails which were sent between Council employees. I found staff had made comments like, “I don’t know why they turned up at the office or what they (Mr X and his wife) hoped to achieve” and “the (Y) drama rumbles on”.
As part of my investigation, I also reviewed the information from the Council which included: an email it had sent to Mr X the day before it sent Mr X the final EHC Plan. The email told Mr X, “we must finalise the EHCP but this does give you your right of appeal if you disagree with the decision”. The Council then provided Mr X with a link to the SEND Tribunal service which would have provided Mr X with more information.
Findings
Mr X said the Council had sent the decision letter via a secure portal but he was not aware it had done so. He said the Council should have told him how it had sent it to him. However, it would have been Mr X’s responsibility to contact the Council about it if he could not locate the decision letter it had sent to him. Furthermore, Mr X had used the secure portal previously to access documents. It would have been reasonable for him to check the portal to see if the letter was there. The Council was not at fault.
Mr X said he could not tell me if the Council had sent him the decision letter via post. On the balance of probabilities, as the Council sent him the decision letter electronically, it is likely the Council would have sent it via post too. It is possible the letter was not delivered but if so, this would not be the Council’s fault.
In addition, the Council sent Mr X an email before it sent him the final EHC Plan. The email told Mr X about his right of appeal to the SEND Tribunal and it gave him a link to a website which would have provided him with further guidance on how to appeal and what information was required to do so. I am satisfied the Council told Mr X about his right of appeal and provided him with the necessary information.
Mr X said he contacted the Council several times since it had sent him the final EHC Plan in February 2021, in relation to not having the decision letter. I have no other evidence Mr X did contact the Council. I also reviewed the subject access request Mr X sent to me and it states Mr X only contacted the Council from June 2021 about not having the decision letter. Therefore, the Council was not at fault.
In relation to the comments Council employees made about Mr X, the comments could have been worded better as they were open to misinterpretation but I do not consider the comments were sufficiently inappropriate to justify me finding fault by the Council.
Final decision
I have now completed my investigation. The Council was not at fault.
Investigator's decision on behalf of the Ombudsman