Summary: There was fault by the Council in its significant delays in producing an up-to-date, amended version of a child’s education, health and care plan. The Council has agreed to offer a financial remedy to reflect the uncertainty and frustration this has caused, as well as committing to issuing a draft amended version of the plan within a specific time period.

The complaint

1. I will refer to the complainant as Mrs V.
2. Mrs V complain the Council has delayed reviewing and amending the education, health and care plan for her son, C. As a result he has been attending school with a plan which is out-of-date and no longer reflective of his circumstances, which means he has not been receiving the support he needs in his education.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter 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. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

7. I reviewed a chronology provided by the Council and its comments in response to enquiries I made, along with a range of other supporting evidence.
8. I also shared a draft copy of this decision with each party for their comments.

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What I found

9. The following chronology will provide only an overview of the key issues relevant to this complaint. It is not intended to be an exhaustive account of the background.
10. Also, while Mrs V’s complaint concerns matters which cover a period of several years, for reasons I will explain in more detail in the next section, I have only investigated events from January 2022 onwards.
11. C has learning difficulties and has been subject to an education, health and care (EHC) plan since 2015, when he was 7 years old. C is now 15 and is in Year 10 at secondary school, but Mrs V says the Council has never amended and reissued his plan in this time. This means much of the plan’s content is considerably out-of-date and no longer reflects C’s needs and abilities.
12. In February 2022 C’s school held an annual review of his EHC plan. Having not received a copy of the review paperwork, the Council says it chased the school for this in May.
13. In July, Mrs V wrote to the Council raising concerns about its lack of response to the review, and asked it to re-assess C’s needs entirely. The Council says it enquired again with the school about the review paperwork at this point.
14. In September, after Mrs V made a formal complaint, the Council chased the school again. At the same time it put Mrs V’s request for a re-assessment to its decision-making panel, which refused it.
15. A few days later, the Council says it received “some” of the review paperwork from the school. Later in September it received the remainder of the paperwork, with the school explaining the electronic file had become corrupted and needed to be typed out again. On the same day, the Council wrote to Mrs V to confirm its decision not to re-assess C.
16. In October, the Council send a draft copy of C’s amended EHC plan to Mrs V for her comments. In response, Mrs V said she would now like another annual review to be held, because the draft was late and of poor quality. The Council contacted the school about this and, in November, the school confirmed it was intending to hold another annual review for C “before Christmas”. Because of this, the Council says Mrs V agreed to keep C’s EHC plan at draft stage, to allow it to incorporate any amendments arising from the new review.
17. On 1 December, the annual review was held.
18. In January 2023, Mrs C complained to the Ombudsman about the lack of progress in reviewing C’s EHC plan, and the impact this had had on his schooling. She also complained about the Council’s refusal to re-assess C’s needs.
19. Mrs V confirmed to me in March that C’s amended EHC plan was still to be finalised. In response to my enquiries, in April, the Council said it was “happy to move towards amending and finalising the [EHC plan] now”.

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Legislative background

20. 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 SEND Tribunal can do this.
21. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. A review should be held at least once every 12 months.
22. 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)
23. 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
24. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
25. 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)
26. 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.

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Analysis

27. Mrs V’s complaint concerns a failure by the Council to review and amend C’s EHC plan since its original creation in 2015. She says this means his school, and a college he also attends part-time, have struggled to support him in his education because the plan no longer reflects his needs or abilities. And, in its response to Mrs V’s complaint, I note the Council concedes it did not review the plan in 2020 or 2021, for reasons it was yet to identify.
28. The law says a person should approach us within 12 months of becoming aware of the substantive issue at the centre of their complaint. This is called the ‘permitted period’. Mrs V referred her complaint to the Ombudsman in January 2023, meaning anything which happened before January 2022 is late by this rule.
29. The law permits us to disapply this time limit, where we consider a person has good reasons for making a late complaint. However, I cannot see any evidence it was unreasonable to expect Mrs V to have approached us sooner, and for this reason I must limit my investigation to the permitted period only.
30. C’s school held an annual review of his EHC plan in February 2022. From context I infer the Council did not take part in the review, but this is not a requirement, and nor is it uncommon for councils not to attend these meetings. However, after a review, a council has four weeks to decide whether to maintain, amend or discontinue an EHC plan, and to inform relevant parties of its decision. If a council does not attend the review meeting, therefore, it is critical it obtain a copy of the review paperwork as soon as possible afterwards.
31. From the evidence the Council has provided to me, it appears it did not seek a copy of the review paperwork until May, some three months after the review. The school did not fulfil this request, but the Council did not chase it up until July; and then again until September, which appears to have been prompted by Mrs V’s complaint. The school then finally provided the paperwork, although it had to rewrite it because the file had been corrupted.
32. It appears some blame must reasonably be attached to the school here, for failing to comply with the Council’s requests, but I cannot make a formal finding on this because the school is not in our jurisdiction. Even accepting this though, given the large gaps in the record here, I am not satisfied the Council did everything it reasonably could to obtain the paperwork. It is particularly troubling the Council did not make its first request until May, by which point its deadline for making a decision on the review was already two months past.
33. Mrs V says the draft amended plan the Council then finally issued in October was not fit for purpose, and she re-wrote much of it herself in responding to the draft. I must note, at this point, that it is not for me to consider or decide the appropriate content of an EHC plan, as this carries a right of appeal to the SEND Tribunal; and so I cannot comment on this point in itself.
34. However, to trigger this appeal right, the Council must issue a final version of the plan. But, by the time the Council considered the paperwork and decided to amend C’s EHC plan, it was already approaching the point where his next annual review would have been due anyway. At Mrs V’s request the school agreed to hold this early, and, for this reason, and with Mrs V’s agreement, the Council decided to leave the amended plan at draft stage.
35. I will observe that to leave a plan ‘open’ while a review takes place is not in accordance with the SEN Code of Practice. However, under the circumstances I appreciate the logic of doing this, and so I do not criticise the Council for this in isolation, even if it is somewhat irregular.
36. But looking at things in the round, I am satisfied the Council was at fault here for the significant delay in considering and responding to the annual review. While it could not do this until it received the paperwork from the school, the Council should have approached this with a sense of urgency, which is not apparent from the evidence I have seen.
37. And, to make matters worse, the Council still has not issued an amended plan for C. Although I accept the reason why the Council left the plan at draft stage to await the new annual review, that was completed more than four months ago, and the Council still seems to have been no substantive progress at all since then.
38. Mrs V says the failure to provide C with an up-to-date plan means the school and college struggle to support him. I accept entirely the likelihood of this. However, it is difficult for me to define a precise injustice here, because I cannot say what should go in C’s plan, or speculate what difference this might have made for him on a day-to-day basis.
39. When dealing with complaints of this nature, the injustice we typically find is that a complainant has been delayed in being able to appeal the contents of an EHC plan, because this right is not triggered until the council issues the final plan. Again though, it is not clear to me this represents a particular injustice to Mrs V (or, by extension, to C) here because I cannot say she will use her appeal right once the plan has been issued.
40. Rather, I consider the injustice here to lie in the uncertainty about what might have happened, if the Council had reviewed C’s plan when it should have done, and the frustration this has evidently caused Mrs V.
41. To address this injustice, I consider the Council should offer a financial remedy. Our published Guidance on Remedies says we will normally recommend a payment of between £100 and £300 to reflect non-material injustice such as uncertainty and frustration; and given the prolonged and unexplained delays here, I consider a payment of £300 to Mrs V would be appropriate.
42. As the injustice here also affects C directly, I consider the Council should offer a further £300 to Mrs V to be used for his educational benefit, in whatever way she considers most suitable.
43. Separately, I also consider the Council should ensure it completes the review of C’s EHC plan and issues an amended draft as soon as possible. I am conscious there is no statutory timescale for this stage of the review process. However, C has been waiting for his plan to be updated for more than a year, and under the circumstances, I consider the Council should commit to producing a draft amended version – taking account of the December annual review – within eight weeks of the date of my final decision. It will then have the further eight weeks set out in the Code of Practice to finalise the plan.
44. I find fault causing injustice in this element of Mrs V’s complaint.
45. Mrs V has also complained about the Council’s refusal to carry out a re-assessment of C’s needs.
46. As this also carries a right of appeal to the SEND Tribunal, I am unable to investigate the Council’s decision itself. However, the SEND Code of Practice says, upon receipt of a re-assessment request, a council has 15 calendar days to make a decision whether to accept it, and to communicate this decision to the relevant party.
47. In this case, Mrs V made her request for re-assessment on 11 July, the Council put the request to panel on 7 September, and then it informed her of its decision on 28 September, as part of its response to her complaint. This process therefore took 79 days, by my calculation, which is considerably over the statutory deadline. This is a further point of fault here.
48. But, again, in such cases we would normally consider the injustice to be in the delay to the complainant’s right to appeal the decision. Mrs V has not appealed against the decision though, and so, although I accept this delay would also have caused her some frustration, I am not persuaded it represents a separate, significant injustice here.
49. I find fault which did not cause injustice in this element of Mrs V’s complaint.

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Agreed action

50. Within one month of the date of my final decision, the Council has agreed to:

• write a formal letter of apology to Mrs V for the ongoing delay in producing an amended EHC plan for C;
• offer to pay Mrs V £300, to reflect the uncertainty and frustration caused by the delay; and
• offer to pay Mrs V a further £300, to use for C’s educational benefit, for the same reason.

51. And, within two months of the date of my final decision, the Council has agreed to issue a draft amended version of C’s EHC plan.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman