The Ombudsman's final decision
Summary: The complainant (Mrs X) said the Council had delayed issuing an amended Education Health and Care Plan for her daughter (Y) following its review in September 2022. We found fault in the Council’s actions following the review of Y’s Education Health and Care Plan. We also found fault in the Council’s complaint handling.
The Council’s fault caused injustice to Y and Mrs X. The Council has agreed to apologise to Y and Mrs X and make payments to recognise Y’s loss of education and Mrs X’s distress. The Council has also agreed to prepare an action plan for the improvements in its complaint handling.
The complaint
Mrs X complains about the Council’s delays in amending Y’s Education Health and Care Plan following its review in September 2022. These delays, she says, resulted in Y missing the placement Y and her family wanted. Mrs X also says the Council’s failing meant Y missed the whole year of education and could not leave the house for a year.
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) 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) The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what 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) 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.
What I have and have not investigated As explained in paragraph three of this decision we would normally not investigate anything that happened more than 12 months from the date when the complainant came to us. Mrs X complained to us at the beginning of January 2024. I consider, however, there are good reasons for exercising our discretion and investigating what happened from September 2022. This is because the Council significantly delayed responding to Mrs X’s complaint, providing stage two response at the end of November 2023. Mrs X should not be disadvantaged by the Council’s delays.
How I considered this complaint
I considered the information Mrs X provided.
I made enquiries with the Council and considered the information it provided.
I referred to The Council’s Complaint Policy.
Mrs 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
Legal and administrative framework Councils’ duties on EHC Plan Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014: Councils must review an EHC Plan at least every 12 months; Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments; Within four weeks of the meeting, the council must decide whether it will keep the EHC Plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay; Where a council proposes to amend an EHC Plan, 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. The council must give the parents at least 15 days to give views on the proposed amendments; When the parent suggests changes that the council agrees, it should amend the plan and issue the final EHC Plan as quickly as possible; Where the council does not agree the suggested changes it may still issue the final EHC Plan; In any event the council should issue a final EHC Plan to the parent and any school named within 8 weeks of sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22) The courts said councils must, from March 2022, send the parent or young person the final amended EHC Plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. (R (L, M, and P) v Devon County Council [2022] EWHC 493) There is a right of appeal to the Tribunal against: a decision not to carry out an EHC needs assessment or reassessment; a decision that it is not necessary to issue a EHC Plan following an assessment; the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified; an amendment to these elements of an EHC Plan; a decision not to amend an EHC Plan following a review or reassessment; and a decision to cease to maintain an EHC Plan. (Children and Families Act 2014 S.51(2)) The Council’s Complaints Policy All complaints will be acknowledged within three working days and the Council will aim to respond within ten working days. If the Complaint issues are more complex, the Council will aim to respond within 20 working days.
If the Council for specific reasons cannot respond within the set timescales, it will contact the complainant and advise of the new timescales.
What happened
Background
In 2021/2022 Y struggled with attending her mainstream secondary school (School 1) and her attendance fell below 50%. She was diagnosed with Autism Spectrum Disorder (ASD) in August 2022.
At the beginning of September 2022 Mrs X asked for a change of school for Y. She asked that an independent special school (School 2), which Y visited during the summer 2022 and liked, was named in Section I of Y’s EHC Plan.
Emergency review of Y’s EHC Plan In the second week of September 2022 the Council held an emergency review for Y. It noted: Worsening in Y’s mental health leading to her increasing anxiety about school and reluctance to leave her house; Various measures taken by School 1 to support Y and her school attendance; The importance of Y’s school attendance in view of her stage of education and her academic abilities; Parental preference for School 2; The urgency of finding a right educational setting for Y to enable her preparation for the General Certificate of Secondary Education (GCSE) exams.
At the end of December 2022 the Council told Mrs X it had decided not to amend Y’s EHC Plan. A month later the Council reviewed this decision and agreed to amend Y’s EHC Plan.
The Council consulted with several schools in mid-February 2023, including School 1 and School 2. School 1 responded it could not meet Y’s special educational needs as all its efforts to support her were not enough to overcome her anxiety about attending school. School 2 confirmed its suitability but could not offer a place until Easter 2024.
At the end of February the Council sent some further school consultations. One of the independent special schools (School 3) offered Y a place. Mrs X and Y visited School 3 at the end of March and said they would accept this offer.
In April, May and June the Council had sent some further consultation letters to various schools, before it agreed to name School 3 in Section I of Y’s EHC Plan in mid-June 2023.
The Council issued Y’s final amended EHC Plan in the third week of June.
During the academic year 2022/2023 Y received support from the Child and Adolescent Mental Health Services (CAMHS). There is evidence she consistently expressed her wish to attend school. The professionals working with Y considered that finding a suitable educational placement for Y was vital for her development. After the Council agreed to name School 3 and issued Y’s final amended EHC Plan at the end of June 2023, CAMHS stopped its involvement with Y.
Mrs X told me she had not tried to arrange any education for Y when she had been out of school because of her mental health difficulties and the professional advice Mrs X had received from CAMHS. Based on this advice Mrs X believed Y needed a permanent placement rather than any interim provision which could have impacted Y’s ability to engage with a new setting.
From September 2023 Y has been attending School 3 full-time.
Complaint Mrs X complained to the Council in mid-June 2023. The Council responded at the end of September upholding Mrs X’s complaint. The Council recognised it had delayed the review process particularly when consulting with schools. The Council apologised.
Mrs X was not happy with the lack of suitable remedies and asked for her complaint to be considered further. At the end of November 2023 the Council’s complaint handling team said it had contacted the Special Educational Needs and Disabilities (SEND) team but, despite chasing the service, it had not received a response. It could not, therefore, clarify why the Council had consulted with so many schools and delayed naming School 3 in Y’s EHC Plan. The complaint team upheld Mrs X’s complaint and offered an apology for the Council’s delays. It said it could not offer any payments as it would be outside the remit of the Council’s complaint policy.
Analysis Emergency EHC Plan review in September 2022 I cannot criticise the Council’s decision following the review of Y’s EHC Plan in September 2022 not to amend the plan. This decision could have been appealed to the SEND Tribunal and therefore we would not normally look at it. However, the Council had four weeks from the date of the review meeting to take this decision, so should have done so at the beginning of October 2022. The Council sent its decision to Mrs X at the end of December 2022. The delay of nearly three months is fault.
A month later the Council changed its position and decided to amend Y’s EHC Plan. The Council had eight weeks from this date to issue Y’s final EHC Plan. This timescale should be enough to complete all school consultations. The Council should have issued Y’s amended EHC Plan by mid-March 2023. This happened at the end of June 2023, which meant another delay of over three months, which is fault.
Even if the Council would have taken an extra month to reconsider its position following an EHC Plan review in September, the process of identifying a suitable school for Y and amending her EHC Plan should have been completed by the end of December 2022. Because of the Council’s delays it happened in late June 2023.
I do not make any findings on which school the Council should have named for Y. There is a legal framework for the Council to follow and the decision to name a specific school can be appealed to the SEND Tribunal. Neither do I criticise the Council for the number of school consultations it completed but for the delays within the process. If not for the Council’s delays the school consultation process would have started in November 2022 rather than in February 2023, and, on the balance of probabilities, it is likely that a suitable school for Y would have been identified before the end of December 2022.
The Council’s delays caused a significant injustice to Y and Mrs X: For Y – she was out of school and was not accessing any form of education or receiving any special educational provision included in Section F of her EHC Plan. Y remained very keen to re-engage with school education. Because of her mental health difficulties the parents were reluctant to introduce any interim educational provision not to risk Y’s engagement with a new school setting. This position was supported by the medical evidence. Because of the Council’s delays Y missed at least two terms of Year 10 where she should have started her GCSE programme.
For Mrs X – the Council’s delays with finding a school placement for Y and finalising her EHC Plan affected Mrs X and the whole family. Mrs X was distressed by Y’s inability to continue her education and by falling behind her peers with her academic development. She felt confused by the Council’s communication and by the multiple school consultations which happened even after School 3 offered Y a place. The Council’s failings following the review of Y’s EHC Plan in September 2022 meant Mrs X’s appeal rights were delayed by nearly six months.
Complaint handling The Council failed to adhere to its complaint handling timescales and to treat Mrs X’s complaint with due seriousness. Stating the lack of substantive response to Mrs X’s concerns was caused by no information forthcoming from another team in the Council, is not acceptable. It shows failings within the communication between the Council’s teams and lack of joined-up working.
Although the Council upheld Mrs X’s complaint, it failed to offer her any remedies apart from an apology. We would expect councils to refer to our “Guidance on Remedies” when trying to put things right for the complainants.
The Council’s failings in the way it handled Mrs X’s complaint were fault and caused her further injustice. She remained distressed and had no sense of resolution.
Service improvement In April 2024 we issued six decisions for the complaints about the way the Council carried out its duties when assessing children’s special educational needs and conducting reviews of their EHC Plans. We recommended some service improvement which would be relevant to this complaint: In the complaint 23 010 016 the Council agreed to provide an update of the lessons learnt and changes made following the Council’s review of its Education Health and Care Plan process. This was to ensure concerns about provision and placement from parents or young people are responded to and any agreed steps are actioned without delay.
In the complaint 23 013 716 the Council agreed to provide us with an action plan which sets out how it will ensure similar failures to secure special educational provision will not happen again.
In the decision issued on 1 December 2023 in the complaint 23 004 787 the Council agreed to remind SEND staff that decision notices and/or amended final EHC Plans should be issued in line with the timescales in the statutory guidance after each annual review.
Within the last few months we also found the Council’s fault with its complaint handling in other cases: In the complaint 23 004 787 the Council agreed to remind all staff responding to stage one and stage two complaints of the importance of clearly setting out their finding on each point of complaint, with reference to our ‘Guidance on Effective Complaint Handling for Local Authorities’.
In the complaint 23 011 497 the Council agreed to remind its complaints handling staff of its Complaints Policy timescales, and if its complaint responses are delayed, to inform complainants of the reasons and when a response will be shared. The Council also agreed to consider what redress is appropriate in circumstances where the Council agrees its fault caused an injustice to a complainant. This may be an apology and may include a financial remedy. We encouraged the Council to consider the Ombudsman’s Guidance on Remedies as part of this process.
We recognise it will take some time for the Council to address the failings identified in our recent investigations. We will be monitoring the effectiveness of the Council’s actions following our recommendation in the complaints 23 010 016, 23 013 716 and 23 004 787 through our casework.
Agreed action
To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following: Apologise to Mrs X for the injustice caused to her by the faults identified within the Council’s complaint handling; Pay Mrs X £4,800 to recognise the injustice caused to Y by the delays in issuing an amended EHC Plan following its review in September 2022, which resulted in missed education and special educational provision in the spring and summer terms of 2023; Pay Mrs X £750 to recognise her distress caused by the Council’s fault.
The Council should provide us with evidence it has complied with the above actions.
We also recommend the Council within three months provide us with an action plan on implementing improvements in the way it deals with the Children and Education complaints. The plan should have a particular focus on timeliness, communication with the complainants during the process and remedies offered when the Council upholds complaints. The Council will identify a senior officer within its service who will have an oversight of the action plan implementation.
We recognise it will take some time for the Council to address its failings within reviews of the EHC Plans identified in our recent investigations. We will be monitoring the effectiveness of the Council’s actions following our recommendation in the complaints 23 010 016, 23 013 716 and 23 004 787 through our casework.
Final decision
I uphold this complaint. For the reasons explained in the Analysis section I found fault in the Council’s Education Health and Care Plan review process which caused injustice to Y and Mrs X. I also found fault with the way the Council dealt with Mrs X’s complaint. The Council has accepted my recommendations, so this investigation is at an end.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman