The Ombudsman's final decision
Summary: Mrs X complains about how the Council carried out an annual review of her son B’s Education, Health and Care (EHC) Plan. Mrs X says the Council delayed in completing the review, in communicating its decision, and in providing her with a right of appeal. She also complains about how the Council communicated with her about her complaint. We have found fault with the Council’s actions. We have made recommendations to remedy the injustice caused.
The complaint
Mrs X complains about how the Council carried out an annual review of her son B’s Education, Health and Care (EHC) Plan. Mrs X says the Council: did not complete the review within the statutory timescales; delayed in notifying her of its decision not to amend the school named in B’s EHC Plan; failed to provide her with a right of appeal against this decision; and failed to communicate effectively with her about her concerns.
Mrs X says this has caused frustration and uncertainty. She says it has affected B’s educational development.
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)
How I considered this complaint
I considered information provided by Mrs X and discussed the complaint with her.
I considered information provided by the Council.
Both Mrs X and the Council had an opportunity to comment on a draft version of this decision. I considered any comments received before making a final decision.
Relevant legislation, guidance and policy Education, Health and Care (EHC) Plans 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 SEND Tribunal can do this.
The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
Relevant to this decision, 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) Appeal rights There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
Councils must arrange for parents and young people to receive information about mediation. (Special Educational Needs and Disability Regulations 2014) Principles of Good Administrative Practice The Ombudsman published the Principles of Good Administrative Practice (the Ombudsman’s Guidance) in 2018. The Ombudsman’s Guidance sets out the Ombudsman’s benchmark for the standards expected when investigating local authorities’ actions.
The Ombudsman’s Guidance stresses the importance of being open and accountable, explaining the reasons for decision making, and keeping proper, suitable records.
Council’s Complaints Procedure The Council’s complaints policy document sets out the Council’s timescales for responding to the complaints it receives. It says it will acknowledge receipt of a complaint within three working days and respond to a complaint, at both stages of its procedure, within 20 working days. It says where it will take longer to issue a response, the Council will write to the complainant to explain why.
What I found
What happened Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between the parties involved.
Mrs X’s son, B, has an EHC Plan and attends School Z. During the annual review of B’s EHC Plan, in October 2021, it was noted Mrs X felt B would benefit from a change in setting, which would see him attend the same school as his siblings.
On 12 October 2021, School Z emailed the Council with the annual review paperwork. The subject of this email was “Early Annual Review – Request for a change of placement”.
In December 2021, Mrs X contacted the Council for an update. Mrs X says the Council told her it could not find the paperwork sent by School Z. School Z re-sent the paperwork the same day.
In January 2022, Mrs X contacted the Council again, seeking an update. Mrs X says the Council apologised for the delay and the loss of paperwork. Mrs X says she was told a panel would review the request for a change of placement for B.
At the end of January 2022, Mrs X contacted the Council again to find out the panel’s decision. Mrs X did not receive a reply. Mrs X says she contacted the Council again by telephone at the beginning of February 2022 and was told her request would be passed onto the caseworker managing B’s case.
Mrs X continued to contact the Council for an update in February 2022, but did not receive a reply. Mrs X then made a formal complaint.
The Council’s Change of Placement Panel considered B’s case on 8 February 2022. The Panel did not agree to the change in placement, as it concluded School Z was still able to meet B’s educational needs, as set out in his EHC Plan.
The Council responded to Mrs X’s complaint at the end of April 2022. In its response, the Council: apologised for the difficulties Mrs X had faced when seeking an update and agreed this was a cause for concern.
said B’s case had been discussed at the Change of Placement Panel on 8 February 2022. It explained the Panel had not agreed to the request and outlined the reasons for this.
said it could arrange for Mrs X to meet with a specific officer to discuss the situation. It said the Council would remain in contact going forward.
In early May 2021, Mrs X wrote to the officers named in the Council’s complaint response. She outlined why she disagreed with the Council’s decision about B’s school placement. Mrs X said she wished to discuss the matter further, but would seek to appeal the placement at the SEND Tribunal if this could not be resolved.
The Council asked Mrs X to confirm her availability for a meeting. Mrs X responded the same day. Mrs X says the Council did not respond further, even though she chased the Council for an answer. When she did not receive a reply, Mrs X escalated her complaint to the next stage of the Council’s complaints procedure in May 2022.
In her escalated complaint, Mrs X: said the Council had not completed B’s annual review within the required statutory timescales; had not formally notified her of its decision not to change the school setting named in B’s EHC Plan; had not discussed the situation with School Z before making its decision; and had not communicated with her about the situation.
The Council responded to Mrs X’s complaint in August 2022. In its response, the Council: reiterated the apologies it had already offered; said it had not received the annual review paperwork until January 2022, even though it had requested it in December 2021. It acknowledged it had breached the timescales for an annual review, but said this was in part due to a delay in receiving the paperwork from School Z.
said there had been a breakdown in communication. It accepted Mrs X had not been formally told about the Council’s decision not to change the setting in B’s EHC Plan until April 2022, in the stage one complaint response. The Council said Mrs X had not been sent the appropriate paperwork because of this. The Council said Mrs X would receive the paperwork by the end of July 2022.
said the decision not to change the setting named in B’s EHC Plan was made by a panel of professionals who reviewed the evidence submitted with the annual review paperwork. It provided further explanation for this decision.
offered an apology and said it was aware of communication difficulties in general. It said it was implementing a strategic plan to improve this.
Mrs X contacted the Ombudsman in August 2022. She said the Council still had not sent any paperwork formally confirming its decision, details on mediation, or her right of appeal.
During this investigation, Mrs X confirmed a further annual review had been completed in October 2022 and the associated paperwork sent to the Council. A change of placement for B had again been sought.
Analysis Delay to annual review and in providing appeal rights The Council said it did not receive a copy of the annual review paperwork from School Z until January 2022. I have seen a copy of School Z’s email to the Council in October 2021, confirming the outcome of the annual review of B’s EHC Plan. I have also seen an email from School Z to the Council in December 2021, re-sending the same information. From the evidence available, I consider the Council to have been sent the annual review paperwork on the 12 October 2021.
As outlined in paragraph 9, the Council had four weeks from this date to confirm whether it would amend the setting named in B’s EHC Plan. The Council did not notify Ms X of its decision not to amend B’s EHC Plan until it responded to her complaint in April 2022, a delay of approximately 24 weeks. I have found the Council at fault for this.
The Council’s decision not to change the setting named in B’s EHC Plan would come with a right of appeal to the SEND Tribunal. Those wishing to exercise this right of appeal must first consider mediation. The Council should have formally notified Mrs X of its decision and provided information about mediation when it made its decision.
The Council acknowledged in its complaint responses it had not told Mrs X of its decision for more than two months after it made it, or sent the relevant paperwork, including formal notification or information about the mediation process. It said it would do this before the end of July 2022, but did not. I have found the Council at fault for this.
These faults caused Mrs X an injustice. Mrs X had to wait longer than she should have for the Council’s decision. Mrs X was not given information about mediation, or formal notice of the Council’s decision, even though the Council said it would provide this. When Mrs X tried to arrange a meeting to discuss B’s case, she did not receive a reply and the meeting did not happen. The cumulative effect of these faults meant Mrs X was unable to exercise her right of appeal to the SEND Tribunal at the correct time.
Mrs X says this has affected B’s educational development. I cannot know what the outcome of an appeal to the SEND Tribunal would be and whether an appeal would have resulted in a different educational setting being named for B. I cannot therefore say whether B’s education provision would be different. I consider the Council’s delay in providing the right of appeal has caused uncertainty for Mrs X, which is an injustice in itself.
Communication The Council repeatedly did not respond to Mrs X’s requests for an update on the annual review process. I note the Council has acknowledged the communication issues present in this case and agrees that this amounts to fault.
The Council decided in February 2022 it did not agree to the requested change in school setting for B. It did not communicate this to Mrs X until its stage one complaint response in April 2022. In addition to the faults set out in the analysis above, I consider the Council’s delay in communicating its decision, and the reasons for it, is contrary to the administrative principles set out in the Ombudsman’s Guidance. I have found the Council at fault for this.
The Council did not adhere to the timescales set out in its policy when responding to Mrs X’s complaints at both stages of its complaints procedure. It delayed by approximately eight weeks when responding at both stages and did not contact Mrs X to explain this would happen. It also did not meet with Mrs X as it said it would. I have found the Council at fault for this.
These faults caused Mrs X an injustice. Mrs X experienced avoidable frustration and inconvenience when attempting to pursue a resolution, as well as avoidable effort in making complaints to both the Council and the Ombudsman. Had the Council responded in a timely manner, it is likely Mrs X would not have needed to make a complaint.
I recognise the Council has acknowledged some of these faults in its complaint responses, which is appropriate. However, during the course of this investigation, Mrs X confirmed a further annual review had taken place and provided correspondence showing she is experiencing the same difficulties. This suggests that while the Council has accepted these faults, they have not been fully addressed.
Agreed action
Within four weeks of the final decision being issued, the Council has agreed to: provide a written apology to Mrs X, acknowledging the faults and injustice identified in this statement; confirm whether it intends to cease, amend or maintain B’s EHC Plan, and provide Mrs X with notice of this decision and the corresponding right of appeal; and pay Mrs X £350, comprised of the following: £200 in recognition of the frustration and uncertainty experienced; and £150 in recognition of the avoidable time and trouble involved in pursuing this matter as a complaint.
Within eight weeks of the final decision being issued, the Council has agreed to: write to Mrs X and set out the measures it has taken, or intends to take, to improve communication with parents and carers, as part of the strategic plan the Council referred to in its final complaint response.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation with a finding of fault by the Council, causing injustice. I have made recommendations to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman