The Ombudsman's final decision
Summary: Miss X complained that the Council failed to issue her daughter’s Education, Health and Care plan within the statutory timeframe. She also complained that the Council failed to deal with her complaint in line with its policy. Miss X said this meant a delay in her daughter getting provision she needed. She also said it caused her unnecessary distress and frustration. We find the Council at fault for delays issuing the plan. This fault caused Miss X injustice. The Council has agreed to apologise and make a payment to reflect the injustice caused. We do not find the Council at fault for its complaint handling.
The complaint
The complainant, who I refer to here as Miss X, complained that the Council failed to issue an amended Education, Health and Care plan for her daughter within the statutory timeframe. She also complained that the Council failed to deal with her complaint in line with its policy.
Miss X said this meant a four-month delay in her daughter getting the provision she needed. She also said it caused her unnecessary distress and frustration, and cost her time and trouble chasing the Council.
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) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 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 considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.
What I found
What should have happened Education, Health and Care (EHC) plans Education, Health and Care (EHC) plans set out the special educational provision required to meet a child’s special educational needs. The government issued the Special Educational Needs and Disability Regulations (‘the Regulations’) in 2014 and the Special Educational Needs and Disability Code of Practice (‘the Code’) in January 2015. The Code provides statutory guidance on the law and the Regulations.
EHC plans can be amended for certain reasons, including where there is a change to the child’s circumstances. If there is a change in the child’s circumstances, usually there will be a review of the child’s EHC plan.
The Code says a council must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan within four weeks of a review meeting. It says the council must notify the child’s parent about its decision within four weeks of the review meeting.
The Code says if, at a review, it is decided the EHC plan needs to be amended, the council should start the process of amending the plan without delay. It must then issue the amended EHC plan as soon as possible (within eight weeks of the amendment notice).
The Council’s complaints procedure The Council has a two-stage complaints procedure. The procedure says the Council has discretion over which stage the complaint is investigated at.
The procedure says before a complaint is automatically considered at stage two, it will be reviewed to assess if it appropriate to move to stage two. It says for a complaint to move to stage two, the complainant needs to provide credible new information or other matters which puts the original decision in doubt.
What happened Miss X’s daughter, C, has special educational needs and an Education, Health and Care (EHC) plan. In June 2021, the Council issued C’s EHC plan which set out how many hours of support she would get in school, amongst other things.
In September, C started a new school. In November, there was a review of C’s EHC plan. At this review, the Council agreed with Miss X that there needed to be an updated report from an educational psychologist. The same day, the Council contacted the educational psychology service for an assessment and an updated report.
An educational psychologist assessed C in early December. The next day, the Council sent Miss X an amendment notice. This said the Council intended to amend C’s EHC plan.
Also in December, the Council increased C’s support hours from 25 hours per week to 32.5 hours per week (full time support). This was to make sure C did not miss out on any provision while the EHC plan was being amended.
In January 2022, the Council chased the educational psychology service for the report. The Council told Miss X about the delay.
In February, the educational psychology service told the Council the report would be submitted in March. The Council told Miss X this.
In March, Miss X complained about the delay getting the educational psychologist’s report, which caused a delay issuing C’s amended EHC plan.
Later that month, the principal educational psychologist called Miss X to apologise for the delay.
At the end of March, the Council received the educational psychologist’s report, and sent Miss X its complaint response. The Council upheld Miss X’s complaint. It said the significant delay in getting the educational psychologist’s report was unacceptable.
In April, Miss X asked the Council to review her complaint at stage two. She asked how the Council planned to address the potential loss of provision for C during the delay.
Shortly after this, the Council told Miss X it would not consider her complaint at stage two because C was not disadvantaged during the time the EHC plan was delayed. This is because C’s support hours had been increased in December.
Miss X then complained to the Ombudsman.
In April and May, the Council kept Miss X informed about the delay and progress with the EHC plan.
In May, the Council issued its proposed amended EHC plan. In June, the Council issued C’s final amended EHC plan.
Analysis Education, Health and Care (EHC) plan Miss X complains that the Council failed to issue an amended Education, Health and Care plan for her daughter, C, within the statutory timeframe.
The Council accepts that it could not issue C’s final amended EHC plan within statutory timeframes. I recognise that the majority of the delay was caused by the educational psychology service, which the Council has no control over. However, the Council also recognises there were delays due to demand and resource pressures within the Council.
The Regulations are clear about timescales. I have seen nothing in the Regulations which say the timescales can be disregarded for resources reasons.
As I have said above, the Code says if, at a review, it is decided an EHC plan needs to be amended, the council should start the process of amending the plan without delay. It must then issue the amended EHC plan as soon as possible (within eight weeks of the amendment notice).
The Council sent Miss X the amendment notice in early December 2021. Giving the Council some leeway for the winter holiday period, I find the Council should have issued C’s final amended EHC plan by early February 2022. The Council issued C’s final amended EHC plan in mid-June: four and a half months late. This is fault.
I find the delay issuing C’s final EHC plan did not mean C missed out on provision. I find the Council increased C’s support hours shortly after the review so that C did not miss out on any support. This is positive and is evidence of good practice.
However, I find the delay issuing C’s final EHC plan caused Miss X injustice in that it caused uncertainty, undue significant stress, and frustration. It also denied her a right to appeal the EHC plan, had she wanted to do so.
I must note, however, that I consider the injustice was somewhat mitigated by the Council’s good practice of keeping Miss X informed at every stage about delays, progress, and expectations. This is positive.
Complaint handling Miss X complains that the Council failed to deal with her complaint in line with its policy. This is because the Council refused to address her complaint at stage two.
The Council’s complaints procedure says when asking for a stage two review, a complainant needs to provide credible new information or other matters which puts the original decision in doubt.
In this case, the Council’s stage one complaint response had already upheld Miss X’s complaint about the delay to the educational psychologist’s report, which was the main reason, at that stage, for the delay issuing C’s amended EHC plan. So, there was no credible new information or other matters which put that decision in doubt.
The Council said it would not consider Miss X’s complaint at stage two because C was not disadvantaged by the delay because she did not miss out on any provision during the delay. The Council said this because it had increased C’s support hours to full time support in December.
I have compared C’s initial EHC plan and the amended EHC plan issued in June 2022. The only significant difference in the later plan is the increase in support hours. I therefore agree with the Council that C was not disadvantaged by the delay issuing her final amended EHC plan.
For this reason, I find the Council was within its rights not to address Miss X’s complaint at stage two. The Council was entitled to make this decision, and the decision was in line with its complaints procedure.
We cannot question the merits of decision taken without fault. In this case, the Council’s decision not to address Miss X’s complaint at stage two was in line with its policy. I therefore cannot question the merits of this decision.
For this reason, I do not find the Council at fault.
Agreed action
Within four weeks of this decision, the Council has agreed to apologise to Miss X for the uncertainty, undue significant stress, and frustration caused by failing to issue C’s EHC plan within the timeframe set out in the Regulations. The Council has also agreed to apologise to Miss X because the delay issuing the EHC plan denied her right to appeal (which is injustice).
Within four weeks of this decision, the Council has agreed to make a payment to Miss X of £100 to remedy the uncertainty, undue significant stress, and frustration caused.
In arriving at this figure, I have considered the Ombudsman’s published guidance on remedies. I have considered the length of time involved. I have also considered the Council’s efforts to chase the educational psychology service and keep Miss X informed regularly about progress, delays, and managing her expectations, which I consider somewhat mitigated the injustice.
I therefore consider a payment of £100 is an appropriate and proportionate remedy for the injustice caused.
The Ombudsman will need to see evidence that these actions have been completed.
Final decision
I have completed my investigation. I uphold the part of Miss X’s complaint about delays issuing the Education, Health and Care plan because I find fault causing injustice. The Council has agreed to take action to remedy the injustice.
I do not uphold the part of Miss X’s complaint about how the Council handled her complaint. This is because there is no fault.
Investigator's decision on behalf of the Ombudsman