Summary: Miss X complains the Council have not dealt properly with her daughter Y’s special educational needs. The Council is at fault because is delayed issuing Y’s EHCP. It delayed Y's personal budget and did not make reasonable adjustments for Miss X. Miss X and Y suffered avoidable distress. Y suffered loss of SEN provision. The Council should pay Miss X and Y £250 each for distress, pay Miss X £1,800 for missed SEN provision, produce an action plan and review policy.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council have not dealt properly with her daughter Y’s Special Educational Needs (SEN) because:
• It has delayed issuing Y’s Education Health and Care Plan (EHCP) in 2022;
• It has delayed Y’s personal budget in 2022;
• It has not completed historic annual reviews of Y’s EHCP;
• Historic complaint responses did not direct her to the Ombudsman;
• It has blocked her emails between July and December 2022;
• It has not made reasonable adjustments for her;
2. Miss X says Y has missed out on special educational provision, been prevented from communicating with the Council and the matter has caused her and her child distress.

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The Ombudsman’s role and powers

3. 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)
4. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• we could not add to any previous investigation by the organisation; or
• further investigation would not lead to a different outcome; or
• we cannot achieve the outcome someone wants; or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. 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)
6. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. I have investigated that part of Miss X’s complaint matters regarding delays to Y’s EHCP since June 2022, delays to Y’s personal budget since June 2022 and failure to make reasonable adjustments.
9. I have not investigated matters before June 2022 as they are out of time.
10. I have not investigated the matter involving emails not being received between July and December 2022 because there is no real achievable outcome I can reach.

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How I considered this complaint

11. I spoke to Miss X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

13. 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 tribunal can do this.
14. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
15. 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)
16. Where a 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
17. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened?

19. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
20. The Council held an annual review of Y’s EHCP in June 2022.
21. A draft version of Y’s EHCP was issued on 5 December 2022. The final amended version of the EHCP was issued in early January 2023.

Analysis

22. The Council has upheld Miss X’s complaints that there had been a delay to Y’s EHCP between June 2022 and December 2022, there had been delay in the personal budget timescales in 2022 and that it did not make reasonable adjustments to facilitate communications with Miss X.
23. The Council agreed the delay to Y’s EHCP was significant, has apologised to Miss X and says it will:
• Review its EHCP process to ensure there is no confusion in responsibilities;
• Review its Personal budget process to ensure there is clear process for review;
• Ensure staff receive training on the Equality Act;
• Review its business continuity plan to ensure key performance timescales are protected when normal business is interrupted;
• Support staff named within the complaint to understand the limits of their role and provide appropriate training
24. I do not consider that the remedies proposed by the Council are sufficient.
25. The Council should have issued Y’s updated EHCP by the end of September 2022. There was therefore a delay of three months, approximately one term.
26. I have reviewed evidence about the impact on Miss X and Y and the changes to Y’s EHCP following the review. Miss X and Y suffered avoidable distress.
27. Y’s personal budget increased from £14437.80 to £23,722 as a result of the EHCP annual review. It is clear Y missed education/SEN provision as a result of the delay.
28. I have considered the Ombudsman’s Guidance on Remedies, which says, “Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.”

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Agreed action

29. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Pay £250 each to Miss X and Y in respect of their avoidable distress;
• Pay Miss X £1,800 in respect of Y’s missed education/SEN provision;
• Produce an action plan to demonstrate how the council will meet statutory timescales for EHCP annual reviews;
• Complete a review of its policy regarding the making and recording of reasonable adjustments in relation to Council services.
30. The Council should provide us with evidence it has complied with the above actions.
31. The Council should provide us with evidence it has complied with the actions it has already said it will take, together with evidence of any outcomes, outlined in paragraph 23.

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Draft decision

32. I have found fault by the Council, which caused injustice to Miss X and Y. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman