Summary: Mrs X complained the Council delayed in reviewing her son, Mr Y’s Education, Health and Care Plan for 18 months, delayed issuing a draft amended plan for a further 12 weeks and failed to issue a final amended plan. Mrs X further complained the Council’s response to her complaint about the matter was insufficient and incorrect. There was fault in the way the Council communicated about Mr Y’s review in 2019. The Council also delayed in reviewing and amending Mr Y’s plan in 2021 and 2022. The Council agreed to pay Mr Y £1450, and Mrs X £300, to recognise the uncertainty and distress caused to them by the faults.

The complaint

1. Mrs X complained the Council delayed in reviewing her son, Mr Y’s Education, Health and Care Plan for 18 months, delayed issuing a draft amended plan for a further 12 weeks and failed to issue a final amended plan. Mrs X further complained the Council’s response to her complaint about the matter was insufficient and incorrect.
2. Mrs X stated this caused her son, Mr Y, distress and uncertainty which impacted on his mental health and her own.

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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 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)
5. Mrs X complained about the Council actions from April 2019 onwards. I have used my discretion to investigate actions from that date because the complaint concerns poor communication and I am satisfied Mrs X could not have complained to the Council and us sooner.
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. 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)
8. 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.

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How I considered this complaint

9. I read the documents provided by Mrs X and discussed the complaint with her on the telephone.
10. I considered the documents sent by the Council in response to my enquiries.
11. I considered our guidance on remedies, which is available on our website.
12. Mrs 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

Special Educational Needs and Disability Regulations

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. An EHC plan can last until the person is 25 or until they leave education or training.
14. The procedure for reviewing and amending EHC plans is set out in legislation and the guidance. They must be reviewed by the council as a minimum every 12 months. The council should provide a list of children and young people who will require a review of their EHC plan that term to all headteachers and principals of relevant institutions at least two weeks before the start of each term.
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.
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.
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.
18. Parents and young people have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in the EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened

19. In April 2019 Mr Y was 16 years old. He had additional educational needs and had an EHC plan in place to meet those needs. Mr Y’s additional needs meant certainty in his future plans was very important to him. The Council reviewed his plan and named a special school as his post 16 provision from September 2019. The school it named educated young people up to the age of 19.
20. Mrs X used email address A to communicate with the Council about Mr Y’s needs. Mrs X said she had asked the Council before the annual review in April 2019 to use address A. Mrs X asked the Council not to use email address B which she had used previously.
21. In December 2019 the school contacted the Council and requested an emergency review as Mr Y had only attended for 1.5 hours since September 2019. The Council asked the school to complete an annual review form with the information it had. The school did so and said the provision could not meet Mr Y’s needs. It proposed a member of staff educate Mr Y at home to support his transition into the school.
22. The Council sent a draft amended EHC plan by email to the school. The draft plan did not alter the provision but changed the goals Mr Y should achieve. The Council said it could not find any evidence it sent this to Mrs X.
23. The Council completed the final amended EHC plan for Mr Y in February 2020. It sent it by email to the school. It sent Mrs X a copy to an incorrect email address (address C) which was similar to email address B.
24. In July 2021 the school held an annual review meeting for Mr Y. It sent the review paperwork to the Council.
25. In September 2021 the Council sent a letter to Mrs X at incorrect email address C. It said it intended to amend Mr Y’s EHC plan.
26. In October 2021 Mrs X complained to the Council that Mr Y’s EHC plan had not been reviewed since February 2019. She also complained the Council had not issued a draft amended EHC plan following the annual review in July 2021.
27. At the end of October 2021 the Council sent a draft amended EHC plan to Mrs X at the correct email address (address A). It also sent the draft to the school.
28. The Council responded in November 2021. It said Mr Y’s EHC plan had been reviewed in December 2019 and it sent a final amended plan in February 2020 to email address B. It apologised for the delay in issuing the draft amended plan which it stated was due to a delay by the school.
29. Mrs X responded to the Council and asked it to consider her complaint at the next stage of the complaint procedure. She stated the information the Council had used in its complaint response was incorrect.
30. The Council responded in December 2021. It said:
• it had used the incorrect email address (address B) in communication with Mrs X about the draft amended plan in September 2021 and apologised;
• the school had failed to complete the annual review of the EHC plan in December 2020, and apologised;
• it did not know why neither the school nor Mrs X had not received the final amended plan from February 2020; and
• it issued a draft amended plan in October 2021 and a further review was held in December 2021.
31. In December 2021 the school held a further annual review for Mr Y in preparation for his post 19 transition. At this point Mr Y was 19.
32. In May 2022 the Council issued a final amended EHC plan for Mr Y as a result of the review held in October 2021. This was 28 weeks later (20 weeks longer than allowed by guidance). It sent this to the school and Mrs X. The EHC plan named the school as the continuing provision for Mr Y post 19.

Further information

33. The records show the school said it did not complete a review in December 2019. It also stated it did not receive the final amended EHC plan the Council issued in February 2020.
34. Mrs X said she did not attend a review meeting at the school in December 2019.
35. In response to my enquiries the Council stated its SEN Casework Coordinator would keep track of reviews and remind SEN Officers when reviews are due. It stated SEN Officers would remind schools at the start of each academic year which reviews are due and ensure they are completed to statutory timescales.

My findings

36. The school sent the Council the annual review paperwork for Mr Y in December 2019. This was as a result of a conversation with the Council, not following an annual review meeting with Mrs X and Mr Y. The Council produced a draft amended plan but did not send it to Mrs X. This was fault. It sent the final amended EHC plan to an incorrect email address (address C) which Mrs X was unaware of and had no access to. This was also fault.
37. As Mrs X did not attend a review meeting and did not receive the draft or final amended plan, she and Mr Y did not know the plan had been amended. Mrs X also did not know that she had the right of appeal to the SEND tribunal. Mrs X and Mr Y were not able to contribute to the review. The poor communication was fault and caused Mrs X and Mr Y uncertainty about what his provision would have been had he been able to contribute to the review or appeal the contents of the plan.
38. Mr Y’s EHC plan should have been reviewed again by February 2021. This did not happen. The Council stated in its complaint response that the school did not complete the review. However, the guidance states it is the Council’s responsibility to ensure the plans are reviewed. It did not and that was fault.
39. When the Council received the next annual review paperwork in July 2021 it should have told Mrs X of its intention to amend the plan within 4 weeks. It sent the letter 10 weeks later and sent it to an incorrect email address, so Mrs X did not receive it. The delay and poor communication was fault.
40. The Council sent the draft amended plan to Mrs X in October 2021, it should have completed the final amended plan within eight weeks. The Council did not issue the final plan for 28 weeks which is 20 weeks longer than the guidance allows. That was fault. Because Mr Y was transitioning between 16-to-19 and post 19 education he did not know what provision he would receive from September 2022. Fault at a time of transition between phases of education is likely to result in a higher level of injustice and I have reflected this in my recommendations.
41. The delays in 2021 were fault and caused Mrs X and Mr Y uncertainty. Due to Mr Y’s additional needs the uncertainty caused him increased distress and negatively impacted his mental health. It also delayed Mr Y’s right of appeal to the SEND tribunal, although I cannot say he would have used it had he received it earlier or what the outcome might have been.
42. I have considered the injustice caused to Mr Y by accumulation of faults by the Council in its communication and delays since 2019 in reaching a recommended financial remedy set out below.
43. The Council’s initial response to Mrs X’s complaint was factually incorrect. The Council recognised that and apologised for it in its second complaint response. Although the Council’s final complaint response was not incorrect it did not sufficiently recognise all of the faults. However, they are identified within this investigation.

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Agreed action

44. Within one month the Council agreed to:
• write to Mr Y and apologise for the uncertainty and distress caused to him by its poor communication and delay in amending his EHC plan;
• pay Mr Y £1450 to recognise the same over 29 months between December 2019 and May 2022; and
• write to Mrs X and apologise for the uncertainty and distress caused to her by the same faults, and pay her £300 to recognise that injustice.
45. Within two months the Council agreed to:
• review how it records and confirms email addresses for using during statutory procedures and remind relevant staff of the importance of periodically reviewing and confirming the same; and
• provide evidence its SEN Casework Coordinator tracks reviews and reminds SEN Officers when reviews are due as outlined at paragraph 33; and
• ensure it will provide a list of people who will require an EHC plan review each term to all relevant headteachers and principals of schools, colleges and other institutions, at least two weeks before the start of each term in line with the statutory guidance.
46. The Council will provide us with evidence it has done so.

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Final decision

47. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman