Summary: Ms X complained about the Council’s handling of the annual review of her daughter’s Education, Health and Care (EHC) Plan and delay in issuing her EHC plan. She also complained about its consideration of her request for a personal budget. We found evidence of fault by the Council. The Council has agreed to our recommendations to put right the injustice caused Ms X and her daughter and to improve its service.

The complaint

1. Ms X complained the Council failed:

• to meet statutory time limits when issuing and amending her daughter, Y’s, Education, Health and Care (EHC) Plan;
• to attend the annual review meeting despite saying it would do so;
• to properly highlight amendments and deletions from Y’s amended EHCP and;
• to consider Ms X’s request for a personal budget for Y.

2. Ms X says the Council’s actions put her to the time and trouble of pursing a complaint. It has also caused Y frustration, confusion and resulted in a lack of provision.

Back to top

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. 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.
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)

Back to top

How I considered this complaint

6. I discussed Ms X’s complaint with her and considered information she provided.
7. I considered information I received from the Council in response to my enquiries.
8. I set out my initial consideration of the complaint in a draft decision statement and invited Ms X and the Council to comment.

Back to top

What I found

9. 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.

Annual reviews

10. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Councils must hold a review meeting once yearly and within four weeks of the meeting, must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. This is the annual review. Each annual review must take place within 12 months of the last.
11. 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)
12. 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)
13. 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.

Personal budget

14. A Personal Budget is money identified by a council to deliver provision set out in an EHC plan where the parent or young person is involved in securing that provision. (SEND Code of Practice, paragraph 9.95)
15. Councils must consider each request for a Personal Budget on its individual

What happened

16. Y has special educational needs and has an EHC Plan.
17. The annual review for Y’s EHC Plan took place on 28 April 2022.
18. An officer from the Council was due to attend the annual review meeting but did not do so.
19. The Council amended Y’s EHC Plan. It sent Ms X a draft of Y’s EHC Plan on 27 July 2022. The draft plan included changes. The Council did not highlight the changes and deletions.
20. On 28 July Ms X complained to the Council. She said it had taken too long to provide her with a draft plan and the Council did not attend the annual review meeting. She also said the Council did not mark changes it made in the draft plan and, as the Council did not attend the review meeting, she did not know the grounds for the changes. Ms X also put in amendments to the plan and a personal budget request.
21. On 24 August the Council replied to Ms X’s complaint. It said:

• Y’s Family Services worker did try to attend the meeting but could not do so because of technical issues at the last minute.
• It amended the draft plan to reflect Y’s updated ambitions.
• It does not use a strikethrough function on draft plans. However, it will send Ms X a copy of Y’s finalised EHC Plan and the draft amended version.
• The Council is working through a backlog of annual reviews caused by historical issues including understaffing.

22. Ms X asked the Council to escalate her complaint, but it did not do so. It apologised for the delays and offered her £200 in recognition of the time and trouble caused to her.
23. On 26 October 2022 the Council asked Ms X for her amendments on the draft plan. Ms X replied advising she sent her amendments in July.
24. On 27 October 2022 the Council sent out a second draft EHC Plan. Ms X approved the EHC Plan on 1 November 2022.
25. An annual review of Y’s EHC Plan scheduled for November 2022 was rescheduled because the EHC Plan from the previous review had not been finalised. The review was scheduled for December 2022.
26. On 9 November 2022 the Council sent the draft EHC Plan to its panel for approval. However, the plan was not finalised because Ms X’s request for a personal budget was awaiting approval.
27. On 18 January 2023 the Council sent a final EHC Plan. It said the delay in finalising the draft was due to staff absence. There were no changes between the EHC Plan and Y’s previous plan in terms of educational provision.
28. Ms X’s request for a personal budget remains outstanding. The Council said it was due to be considered by the panel in April. It said the delay was due to staff absence.

Finding

29. The Council did not attend Y’s annual review meeting in April 2022. There is no requirement for the Council to attend reviews. Therefore, I cannot find at fault for not doing so.
30. However, Ms X and Y expected an officer to attend because the officer accepted the invitation to the meeting. I understand the officer did not attend because they could not access the IT platform used for the meeting. I consider this was avoidable. Ms X and Y were understandably disappointed and frustrated when the Council did not attend.
31. Y’s annual review meeting took place on 28 April 2022. The Council should have sent Ms X an amendment notice detailing the proposed amendments to Y’s EHC Plan by 26 May 2022. However, it did not do so until 27 July 2022, a delay of eight weeks. This is fault by the Council.
32. The Council should issue a revised EHC Plan within eight weeks of sending an amendment notice. Ms X should have received Y’s final EHC Plan by 21 September 2022. The final EHC Plan was issued on 18 January 2023, a delay of 17 weeks. This is fault by the Council.
33. The final EHC Plan did not alter Y’s education provision and so I do not consider Y missed provision because of the delay. However, Y was left without the clarity of a final EHC Plan and had to reschedule her next annual review. Ms X was also put to the time and trouble following up the matter.
34. Ms X’s request for a personal budget for Y remains outstanding. While there are no statutory timeframes for approving such requests, we would expect this to be done without delay. This has not happened, and I consider the Council is at fault for not doing so.

Back to top

Agreed action

35. The Council has apologised to Ms X and Y for the delay up to September 2022. It offered her a payment of £200 in recognition of the frustration caused to her. It has agreed an additional remedy based on the further delay I found.
36. Within four weeks of my final decision, the Council has agreed to:

• Send Ms X and Y a written apology for the delay in issuing a final EHC plan and deciding the request for a personal budget;
• Ensure the request for a personal budget is determined and;
• Pay a further £300 in recognition of the delay from September 2022 to January 2023.

37. Within three months of my final decision the Council will:

• Review its process to ensure personal budget requests are dealt with in a timely way. It will create an action plan explaining what it will do to achieve this; and
• Review its process for attending virtual annual review meetings to ensure there is not a recurrence of the issues identified in this complaint. It will create an action plan explaining what it will do to achieve this.

Back to top

Final decision

38. I have ended my investigation as the Council has agreed to remedy the injustice caused by the fault I found.

Back to top

Investigator's decision on behalf of the Ombudsman