Summary: Mrs X complains about delays in the Council issuing a final EHC plan for her son. She also complains the Council failed to send the annual review paperwork in time and failed to respond to her comments about inaccuracies and missing important information. We find fault with the Council for delay. We have made recommendations to the Council to remedy the injustice caused.

The complaint

1. Mrs X complains about delays in the Council issuing a final Education, Health and Care (EHC) plan for her son. She also complains the Council:
• Failed to send the annual review paperwork within two weeks of the annual review meeting.
• Failed to respond to her comments about inaccuracies and missing important information within the annual review paperwork.

Mrs X said the Council’s actions caused her quantifiable financial loss as she was left with no choice but to appoint a solicitor to help her.

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What I have investigated

2. I have investigated Mrs X complaints about delay with issuing the annual review paperwork and final EHC plan.
3. I have also investigated Mrs X’s complaint about the Council’s failure to respond to her representations about the annual review paperwork being inaccurate and missing important information.

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The Ombudsman’s role and powers

4. 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)
5. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. 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)

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How I considered this complaint

7. I spoke with Mrs X and considered the information she provided.
8. I considered the information provided by the Council following enquiries made during our assessment stage.
9. I sent a draft decision to Mrs X and the Council and considered their comments.

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What I found

Legislation, guidance, and policy

10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for producing and reviewing EHC Plans. The Code is based on the Children and Families Act 2014 and the SEN Regulations 2014.
11. Paragraph 9.176 of the Code of Practice notes:
• The school (or, for children and young people attending another institution, the local authority) must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting
• Councils must decide within four weeks of a review meeting whether they propose to keep the EHC Plan as it is, amend the Plan or end it. The council must notify the child’s parent and school of its decision.
• If the plan needs to be amended, the local authority should start the process of amendment without delay.
12. Where the council decides to amend the EHC Plan, it must send the child’s parent details of the proposed amendments, including copies of any evidence to support the proposed changes. It must allow them 15 days to comment. (paragraphs 9.194 and 9.195)
13. Following comments from the child’s parent, if the council decides to continue to make the amendments, it must issue the amended final EHC Plan as soon as possible, and in any case within eight weeks of issuing the notice to amend. (Paragraph 9.196)
14. 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. They only have this right once the final amended Plan is issued.

The Ombudsman’s principles of good administrative practice

15. The Ombudsman has issued guidance outlining the benchmark for the standards we expect when we investigate the actions of councils.
16. One principle is acting fairly and proportionately. This includes clearly explaining the rationale for any decisions. This also links with another principle of being open and accountable. This includes stating the criteria for decision making and giving reasons for decisions.

What happened

17. Mrs X’s son, A, has an EHC plan.
18. On 25 June 2021, A’s school sent Mrs X documents ahead of the planned annual review in July 2021. One document was the ‘report following the Annual Review of the EHC plan’.
19. In July 2021, the annual review meeting took place.
20. On 20 August 2021, Mrs X raised a complaint as she had not heard from the Council following the annual review.
21. On 26 August 2021, the Council sent Mrs X a letter outlining the Council’s decision to amend the EHC plan following the annual review meeting. The letter noted the Council would send the draft amended EHC plan within six weeks.
22. On 14 September 2021, Mrs X received the proposed amended EHC plan and the paperwork from the annual review. Included in the paperwork was a copy of the ‘report following the Annual Review of the EHC plan and ‘supplementary notes’. Mrs X said this report was the exact same as the one sent to her previously by the school in June 2021 and had not been updated with the information that had been discussed at the annual review. Mrs X also said the supplementary notes were full of inaccuracies and missing important information.
23. Mrs X asked the Council to send another copy of the proposed amended EHC plan as it had been sent in an incorrect format. The Council sent the new version on 27 September 2021.
24. Mrs X said she was forced to hire a solicitor because of the Council’s delay in issuing the annual review paperwork. She explained this was because she was overwhelmed with having to deal with responding to the proposed draft EHC plan as well as the annual review paperwork within the short timeframe given. She said if the Council had issued the paperwork on time, she would have had more time to review the paperwork and would not have needed to hire a solicitor. She also explained she did not want to delay matters any further for her son and this was why she did not ask the Council for more time to consider the paperwork.
25. The Council issued its stage one complaint response on 29 September 2021. The Council accepted there was delay in issuing its decision to amend the EHC plan. The Council said there was no delay in issuing the final EHC plan as it still had time as the deadline was not until 17 November 2021.
26. Mrs X asked the Council to consider her complaint at stage two as she was unhappy the Council did not apologise for the delay in issuing the decision to amend the EHC plan. Mrs X also asked the Council why it failed to send the annual review paperwork within two weeks of the annual review meeting.
27. In October 2021, Mrs X raised concerns with the Council about the supplementary notes. She highlighted the document was full of significant omissions and misrepresentations. In November 2021, Mrs X sent the Council further detailed comments and suggested amendments to the document. Mrs X told us the Council never responded to her concerns or proposed amendments.
28. The Council issued its stage two complaint response in November 2021. The Council said it accepted it had delayed in sending the annual review paperwork. The Council said the delays was caused by the school holidays and so the exception rule applied. Nevertheless, the Council agreed it should have told Mrs X of the expected delay when it sent her its notification to amend the EHC plan letter in August 2021.
29. In December 2021, the Council issued the final EHC plan.

Analysis

30. The Council has accepted there were delays in it sending out its notification to amend the EHC plan following the annual review meeting. We agree the Council was at fault as it failed to send its notification of its decision to amend the EHC plan within four weeks of the annual review meeting.
31. We consider the fault identified caused Mrs X some time and trouble as she had to chase the Council for its decision.
32. The Council has also accepted it was at fault for not sending the annual review paperwork, including the report following the annual review meeting, within the required timescales. While we acknowledge the Council said an exception applied as the delay was caused by the school holidays, we note no such exception exists within legislation, the regulations, or the code of practice. Therefore, the Council was at fault for failing to provide the paperwork within two weeks of the annual review meeting.
33. The evidence shows there was also delay with the Council issuing the final EHC plan. In line with the SEN code of practice, the Council should have issued the final amended EHC plan within eight weeks of when it sent the proposed amended EHC plan. Therefore, the Council should have issued the final EHC plan by 9 November 2021. The Council did not issue the final EHC plan until 17 December 2021. This was a delay of just over one month. This is fault.
34. We consider the fault identified caused Mrs X some distress and time and trouble. The fault also delayed Mrs X right to appeal the final EHC plan.
35. Finally, it is clear Mrs X sent the Council her amendments and concerns about the annual review paperwork. There is no evidence the Council responded to her concerns or suggested amendments.
36. This is not good practice as the annual review process should involve parents, including consideration of their comments and concerns. While we note the Council could have disagreed with the amendments and comments raised by Mrs X, it would have been good practice (in line with the Ombudsman’s principles of good administrative practice) for the Council to provide its rationale to Mrs X. This would have allowed Mrs X to understand and consider the Council’s position.
37. This lack of communication would have caused Mrs X some distress and anxiety at not knowing whether the Council had considered her concerns and suggested amendments.

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Agreed action

38. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Apologise to Mrs X for the injustice caused by the faults identified.
• Pay Mrs X £300 to recognise the distress, time and trouble, anxiety, and delay of her appeal rights caused by the faults identified.
• Reimburse Mrs X for her legal fees. We are satisfied and persuaded by Mrs X’s reasons given for why she felt forced to appoint a solicitor to help with the annual review process. We agree that if the Council had issued the paperwork on time, it is likely on balance Mrs X would not have appointed a solicitor. Mrs X should provide the Council with an invoice of the total costs paid, with a breakdown of the fees.
• Remind all relevant staff of the timescales set out within the SEN code of practice for when the Council should:
1. Issue the annual review paperwork and its notification of its decision on whether it will amend the plan, cease the plan, or maintain the plan as is.
2. Issue the final EHC plan.
39. The Council should complete the above within four weeks of the final decision.

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Final decision

40. I find fault with the Council for the delays in issuing its notification to amend the EHC plan, issuing the annual review paperwork, and issuing the final EHC plan. I also find fault with the Council for its poor communication with Mrs X. The Council has accepted my recommendations. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

41. I did not investigate Mrs X’s complaints about what information should have been included in the annual review paperwork and reports. Mrs X says the inaccuracies and missing information impacted on her son’s EHC plan as the Council did not include all the provisions, she considers her son needs.
42. The consequences of the fault complained about is inextricably linked with matters a Tribunal would consider. This is because a Tribunal would consider whether the provisions outlined in an EHC plan is suitable for the child’s needs. If the Tribunal agrees the child needs additional provisions, the Tribunal can order the Council to name these in the child’s EHC plan.
43. Therefore, this matter is outside of the Ombudsman’s jurisdiction as it is appropriate for Mrs X to use her right of appeal to the Tribunal to consider Section F of the EHC plan.

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Investigator's decision on behalf of the Ombudsman